from – Aei.org – by Michael Auslin, Dan Blumenthal, Sadand Dhume, Michael Mazza, Jim Talent, John Yoo
In a landmark decision, an international tribunal in The Hague ruled July 12 China’s expansive claims on the basis of historic rights to contested waters and territories in the South China Sea have no legal standing. The Tribunal also found that China had violated the Philippines’ sovereign rights in its exclusive economic zone.
In response, China’s Foreign Ministry has declared that the award is neither binding nor does China accept or recognize it. Will China ultimately abide by the ruling or will it escalate tensions in the region? What are the implications for the Philippines, the US, and the efficacy of international law? AEI scholars weigh in on the unprecedented South China Sea decision with analysis on the short and long-term consequences, for US policy, America’s allies in the region, and the future of the Asia-Pacific:
Michael Auslin, Resident Scholar and Director of Japan Studies
Today’s long-awaited ruling from The Hague’s Permanent Court of Arbitration may mark a legal watershed in Asian international relations. As much attention as the court case is receiving, however, the bigger story is how a raft of recent confrontations shows how close the region is to conflict.
Last week in the East China Sea, Japanese fighter jets challenged Chinese fighters over the disputed Senkaku Islands, which are controlled by Japan, taking what Beijing condemned as “provocative actions” and targeting the Chinese planes with fire-control radar. Slightly further south, the Taiwanese navy accidentally fired off a supersonic anti-ship missile in the Taiwan Strait on July 1, hitting a Taiwanese fishing trawler and killing one crewmember, raising fears that a similar accident could destroy Chinese property.
Meanwhile, on July 8 back in the South China Sea, the Thainavy fired on Vietnamese fishing boats they claimed were in Thai waters, wounding two sailors. And in the latest incident, Vietnam claims that two Chinese vessels, apparently maritime patrol craft, rammedand sank a Vietnamese fishing boat yesterday. As these incidents mount, the chances alike for greater loss of life and public demands for reprisals grow.
That no hostilities have yet broken out does little to give confidence that the nations of Asia are moving towards a future marked more by cooperation than competition. Among the headaches the next president will inherit, a muddled Asia policy is near the top of the list. Meanwhile, the region will wait to see if it stumbles into war.
This was taken from, “In the South China Sea and elsewhere, East Asia stumbles toward conflict”. To read the full piece, click here.
Dan Blumenthal, Director of Asian Studies and Resident Fellow
The Hague tribunal’s ruling this morning legitimates the US and its allies’ view of what constitutes just and reasonable maritime rules and practices. The question now is not will China abide by law and custom (Hint: It won’t – China will likely continue to push its claims), but does the US have the will to defend the order it helped create?
The US should engage in a serious public diplomacy campaign to highlight its own position on the features in the South China Sea that are entitled to territorial seas and exclusive economic zones. When appropriate and necessary, it should conduct freedom of navigation missions within 12 nautical miles of all features not entitled to territorial seas.
Washington also needs to counter Chinese propaganda campaigns aimed at convincing the world that China is merely behaving like the US in undermining the legal case against it. In no way does China behave like the US when it comes to the rule of law.
As I have argued elsewhere, the next administration must be prepared to engage in diplomacy around the region to press for an agreement among its friends and allies that leads to a common position on territorial dispensation and maritime rights. The decision at The Hague provides the US with a good basis for such diplomacy.
All of this, however, is predicated on the United States’ ability to muster the political wherewithal to reverse its steep decline in defense budgets and start the shipbuilding program it needs. Unfortunately these prerequisites looks more and more like wishful thinking. For the US, the hard work of defending the liberal order it created begins.
This was taken from, “The Hague tribunal: The hard work starts now”. To read the full piece,click here.
Sadanand Dhume, Resident Fellow
India has responded clearly to the Permanent Court of Arbitration’s ruling against China’s claims in the South China Sea. According to a foreign ministry statement, “India supports freedom of navigation and over flight, and unimpeded commerce, based on the principles of international law, as reflected notably in the UNCLOS.” New Delhi also urged “all parties to show utmost respect for the UNCLOS, which establishes the international legal order of the seas and oceans.”
New Delhi’s support for the ruling reflects its high stakes in the South China Sea. As India knits itself into the global economy, it views freedom of navigation and unfettered trade routes as important to its bid to rapidly modernize its economy. Last year, in a clear nod to China, a US-India joint statement affirmed “the importance of safeguarding maritime security and ensuring freedom of navigation and over flight throughout the region, especially in the South China Sea.” Not surprisingly, today’s response from New Delhi uses similar language.
The bottom line: India will view today’s ruling with somewhat less urgency than countries such as the Philippines and Vietnam, whose claims in the South China Sea conflict directly with China’s. At the same time, however, further evidence that China is willing to press it claims disregarding international law and a global consensus will deepen the sense among Indian foreign policy elites that they must draw closer to the US and Japan to counter potential Chinese hegemony in Asia.
Michael Mazza, Research Fellow
Even though Beijing refused to participate in Philippines v. China at the Permanent Court of Arbitration (PCA) and insisted that the PCA lacked jurisdiction, the PCA went out of its way to consider China’s position on the legal merits of the case and China’s various rationales for its South China Sea claims.
And what did the PCA find? Importantly, the PCA concluded that the “historical rights” that China so often asserts have neither a basis in contemporary international law nor in historical fact. The tribunal also found that Beijing acted illegally in a number of ways, including by violating Manila’s sovereign rights within the Philippines’ exclusive economic zone.
…Where do we go from here? Much depends on how China behaves in the coming days and weeks. For starters, however, Washington should ensure that US naval patrols in the South China Sea accord with the PCA’s ruling. Put simply, American naval vessels should be sailing and conducting military activities within 12 nautical miles of Mischief Reef, Second Thomas Shoal, Subi Reef, and Gave Reef (South), all of which the tribunal found to be low-tide elevations that do not generate territorial seas. Washington should encourage its allies and partners to do the same or to join it in combined patrols. The broader international community — not the United States alone — should be seen as standing up for rule of law and a rules-based international order. Such is the best way to ensure that order’s survival and the maintenance of peace in Asia.
This was taken from, “Philippines v. China: David beats Goliath”. To read the full piece, click here.
Jim Talent, Senior Fellow and Director, National Security 2020 Project, Marilyn Ware Center for Security Studies
The Hague Tribunal has affirmed what everyone already knew: that China’s claim of sovereignty within the “nine-dash” line is fantasy, that the reefs it has reclaimed are rocks, not islands, and that the rocks do not give their owners (if they had owners) Exclusive Economic Zones or exclusive access to the resources in the South China Sea. And China’s leaders have reacted as everyone knew they would, by completely rejecting the tribunal’s jurisdiction and ruling.
The value of the decision is that it places in sharp relief the real dispute between China and its neighbors. China believes that international relations (at least in its sphere of influence) should be structured so that the “biggest dogs” get the biggest benefits; its neighbors and the United States believe in a world where nations have equal rights regardless of their relative size and power. At stake is free transit, uncoerced trade, and, ultimately, peace. Which vision prevails will depend on which side has the greatest power and purpose. If the United States values its rights, it would be well advised to tend to its defenses and allies.
John Yoo, Visiting Scholar
The opinion of the tribunal confirmed what any objective international lawyer knows: China has no serious claim to the South China Sea. But the tribunal’s decision also shows what any serious student of international politics knows: international law alone will do little to deter China’s brazen use of force to seize territory in the Sea. The enduring question is whether the United States (which, by the way, has not ratified the Convention on the Law of the Sea) can build a coalition of regional allies to stop China.
The Obama administration has been sadly irresolute in containing China’s expansionary moves. It will be up to the next president to build an alliance that will keep the South China Sea open for the benefit of the world’s fastest growing economies.