Yesterday an arbitration court at The Hague ruled against China’s claims to the South China Sea. See Reuters report. China, as should have been expected, angrily rejected the court’s findings. Today the opinion pages are buzzing.
The editors of the Wall Street Journal noted:
A United Nations tribunal ruled Tuesday that China’s sovereignty claims over the South China Sea, and its aggressive attempts to enforce them, violate international law. This is a necessary rebuke to Beijing, but it comes with no enforcement measures and Chinese leaders have rejected it. So its effect will depend on how China’s neighbors and the United States respond. International norms can’t survive without democracies willing to defend them.
China’s record in the South China Sea belies its promises to pursue a “peaceful rise.†By asserting “indisputable sovereignty†over an area larger than the Mediterranean and encroaching on the territory and rights of others, Beijing has threatened the rules-based order that has given Asia decades of prosperity. Its pillars include freedom of navigation and the peaceful settlement of disputes.
Though the South China Sea is the main economic artery of the world’s most dynamic and populous region, the stakes are even broader. As French defense chief Jean-Yves Le Drian noted recently: “If the law of the sea is not respected today in the China seas, it will be threatened tomorrow in the Arctic, the Mediterranean or elsewhere.†Vladimir Putin and other authoritarians are paying attention.
At the Washington Post scholar Paul Gewirtz remarked:
These are major legal conclusions, but they will produce no immediate resolution to the conflict. Despite being a signatory to the convention, China refused to participate in the arbitration and has denounced the decision as “null and void.†China is clearly wrong. But its sweeping rejection reveals the practical limits of law in this context because the tribunal has no enforcement powers — no police force, no sanctions system, no ability to levy fines.
Another fundamental limit is that the tribunal lacks legal power to resolve underlying and potentially explosive conflicts regarding sovereignty over land features, such as the dangerously contested Scarborough Shoal, and disputes over maritime boundaries. And of course no court’s decision can fully address the core geopolitical issues at stake: China’s enormous new capacities, widespread uncertainty about China’s regional intentions, and whether China and the United States can find terms of coexistence in the Asia-Pacific.
So what is the path forward? The United States and other countries should strongly support the tribunal’s judgment as a binding decision in words and deeds. The United States should criticize China’s statements that it will not comply with the tribunal’s conclusions. And it should continue regular freedom-of-navigation operations, taking advantage of any additional navigation rights produced by the tribunal’s decision.
I agree completely with Mr. Gewirtz’s prescriptions to that point. Then he enters the realm of fantasy:
Instead, the United States should encourage our Filipino allies — with their legal victory in hand — to pursue direct negotiations with China as the best next step in looking for real-world, peaceful solutions. China has long demanded negotiations, so this is the testing hour for China’s good faith.
Neither country should insist on preconditions to such talks. China should not insist that the Philippines renounce the arbitration award, and the Philippines should not insist that China accept the legal rights awarded by the tribunal. Such demands would doom negotiations before they started. The path of negotiations will be uncertain and difficult. But the Philippines’ position will be significantly strengthened by the tribunal’s award. Negotiations should begin with a focus on lowering tensions, looking for trade-offs and pursuing common development projects, even if ultimate questions of sovereignty are temporarily set aside.
I wish that Mr. Gewirtz had elaborated on what he thought the shape of an agreement might be. I think there’s a good reason he didn’t: no agreement is possible. Vital national interests of all three countries are at stake and neither China, the United States, or the Phillippines can or should be expected to negotiate away vital national interests.
How could such negotiations significantly strengthen the Phillippines’s position? Its position is already at its maximum strength. They have a legal settlement in their favor and China’s position could hardly be flimsier. It’s based on Chinese fishermen fishing in those waters. By that standard the United States owns every ocean in the world and the laws of the sea are completely vitiated.
