While the objective of the Clinton statement was to indicate that peace and stability in the SCS was a US interest, in hindsight, by choosing to be so publically involved — over time exhorting China to play by the rules; stop building and militarising islands; and abide by the Permanent Court of Arbitration findings — Washington found itself trying to shape Chinese SCS activity with absolutely no practical leverage (short of the use of force or imposition of trade or economic penalties — actions Washington was correctly unwilling to countenance).
Beijing ignored US exhortations and essentially told Washington to mind its own business. In Beijing’s view, Washington was involving itself in a matter of Chinese sovereignty and security. Beijing is convinced that all the land features in the SCS and, at a minimum, the maritime entitlements appertaining to them, are Chinese territory.
Beijing has been waging a patient long-term campaign to regain these claimed maritime rights and interests. For six decades since the 1950s when Beijing occupied abandoned Nationalist Chinese islands in the eastern Paracels, China has inexorably collected islands, rocks and other features in the SCS through the combined use of force, coercion and occupation. Turning its seven small and long-occupied toeholds in the Spratly Islands into major military facilities is just the latest manifestation of this long-term strategic objective.
Beyond recovering ‘lost sovereign territory’, the defence of China is also directly related to control of the land features in the SCS. Bases in the Paracels and Spratlys provide strategic depth for an enemy planning to attack China via the SCS. Hainan is especially important to the People’s Liberation Army since Beijing has decided to homeport its growing ballistic missile submarine force at the southern end of that island.
China is also hugely dependent on the maritime trade routes that pass to the west of the Spratlys, including trade associated with the much-touted 21st Century Maritime Silk Road. Controlling these islands is the best way for China to make certain no-one else does. Now with three large, newly constructed airfields, it will be able to conduct routine airborne surveillance of its SCS maritime approaches, along with much of Southeast Asia.
So, seven years on, where are we today? What has US policy aimed at moderating China’s SCS behaviour accomplished, and what is the way forward?
First, the United States played an indirect but important role in advocating Manila’s decision to go to the Permanent Court of Arbitration over Chinese claims and actions in the SCS. Although Beijing has so far refused to honour the ruling, it provided clarity to a number of the ambiguities in the United Nations Convention on the Law of the Sea that pertain directly to the SCS, while driving a legal stake into the heart of Beijing’s historic rights claim. Beijing is now permanently burdened with an extremely adverse legal opinion.
Second, no vital US interest has been compromised. Shipping continues uninterrupted, while the United States ignores (daily, if you believe the Chinese complaints) its requirement for prior approval for military operations in China’s exclusive economic zone. The US Navy and Air Force continues to sail, fly and operate where international law permits: an important signal of national policy intentions and military deterrence that more nations should adopt.
Third, the US Mutual Defense Treaty (MDT) with Manila remains in force and China has not attempted to test it by shedding Filipino blood.. The Vietnamese are even more dug in on their 25-odd Spratly holdings and show no interest in decamping. Rather, Hanoi is adding extra military capabilities to make Beijing think twice before trying to force them out. In short, a more or less credible deterrent is in place to thwart an attempt to push either the Vietnamese or the Filipinos off their Spratly holdings.
What’s more, in the wake of the Permanent Court of Arbitration award, Beijing had to swallow its pride and embrace the blatantly opportunistic ploy that Filipino President Duterte pulled, which allowed Beijing to save face in return for Chinese loans. Duterte now has the big infrastructure loan promises he desired and still has the MDT in his back pocket. The fact that Duterte is hanging on to the MDT is the best example that a positive security relationship with Washington is still a valued commodity in Southeast Asia, as is the recent visit of the Vietnamese prime minister to Washington in May.
In sum, while Beijing’s objective to gain control of all the Spratlys has not been forsworn, it has likely been delayed. Despite having permanently shifted the Spratly military balance in its own favour, China still faces the problem of how get the other claimants off their Spratly holdings without starting a war.
US policy has caused an international spotlight to be pointed at the SCS, raising doubts and apprehensions around the globe regarding China’s future behaviour. Given the very poor hand Washington had to play, this is likely the best possible outcome that could have been achieved peacefully. The Trump administration would be wise to continue to keep the SCS dispute in proper perspective to other more important interests and issues that Washington has with Beijing.
Michael McDevitt is Senior Fellow in Strategic Studies at the CNA Corporation.
An extended version of this article appeared in the most recent edition of East Asia Forum Quarterly, ‘Japan repositions’.
The writer is factually wrong to imply that it was the Permanent Court of Arbitration (PCA) in the Hague that made the ruling on July 12, 2016. The PCA is not a court. It only provides a registry and secretarial assistance to “arbitral tribunals constituted to resolve specific disputes” for a fee.
According to UN spokesman Stephane Dujarric, the PCA “has nothing to do with the UN” and “The UN doesn’t have a position on the legal and procedural merits of the South China Sea (SCS) arbitration case.”
Rather, the ruling was awarded by an ad hoc arbitral tribunal, constituted under Annex VII of the UN Convention on the Law of the Sea (Unclos).
Second, it is true that then US Secretary of State, Hillary Clinton, stated at the 2010 Asean Regional Forum that “The U.S. supports a collaborative diplomatic process by all claimants for resolving the various territorial disputes without coercion.”
I think her wish is coming true because, despite the ruling in favour of the Philippines, President Duterte has decided to set it aside since that it was only “an entitlement and not about sovereignty”. This is because Unclos is the Law of the Sea and it has no power to decide on sovereignty issues.
What motivated Duterte’s decision could also be the fact that in 1933, colonial Philippines contemplated annexing the Spratly Islands, but then US Secretary of State, Cordell Hull, cautioned that “the islands of the Philippine group which the United States acquired from Spain by the treaty of 1898, were only those within the limits described in Article III”. He added: “It may be observed that no mention has been found of Spain having exercised sovereignty over, or having laid claim to, any of these (Spratly) Islands.”
As a former lawyer, Duterte can also easily recall that it was former President Ferdinand Marcos who annexed 8 features in the Spratly Islands, on 11 June 1978, using Presidential Decree No 1596 and named them “The Kalaayan Island Group”. Its maritime boundary extended over 200 nm to the Spratly Islands, at a time when Unclos had not yet existed and a 200nm EEZ was illegal under international law.
Third, it is true that “the US Mutual Defense Treaty (MDT) with Manila remains in force” but it does not cover a war over disputed territories.
And a war between the Philippines and China is now unlikely since the 10-nation Asean and China have reached a new modus vivendi, an agreement on the “rough outline” of the legally-binding Code of Conduct that is seen as a major step to prevent clashes in the South China Sea. The COC is expected to be signed at their final summit in Manila, later this year.
Such a war is also unlikely because President Duterte told Russian media ahead of his visit to Moscow in May this year that “I have nothing against America but my foreign policy has shifted. I want to deal with China and Russia. Because in (the) Western world, it’s double talk.”
Fourth, it is also true that “the United States played an indirect but important role in advocating Manila’s decision to go to the Permanent Court of Arbitration over Chinese claims..” In fact, three of the lawyers acting for the Philippines were Americans, when the US Senate has yet to ratify Unclos.
According to Professor Myron Nordquist, the Associate Director and Editor of the Center for Oceans Law and Policy at the University of Virginia, where he is also a Senior Fellow at the Center for National Security Law and a law expert who spent more than 30 years on maritime law studies, including being editor in chief of a seven-volume commentary on Unclos:
“The United States doesn’t even recognize the (arbitral) tribunal. Everyone in the Western press believes China is really being the bad guy and they are only getting half of the story.”
Lastly, there is no restriction on Freedom of Navigation in the SCS simply because most of the seaborne trade goes to and from Chinese ports. It will not serve China’s vital interests if she restricts FON in the SCS, especially after China has launched the multi-trillion dollar Belt & Road initiatives.
Does Uncle Sam truly support “a collaborative diplomatic process by all claimants for resolving the various territorial disputes without coercion”, ratify Unclos without further equivocation and stop sailing its warships in the territorial waters of China? Don’t hold your breath.
So…China’s militarization of the SCS is a success of US Asian policy? Philippines shifting from being a US puppet to being friendly towards China AND Russia is a success for the Washington?
Sorry, I just don’t get your logic here.
To say that the Permanent Court of Arbitration (PCA) has nothing to do with UN is a fallacy; then it also means the UNCLOS has also nothing to do with UN? PCA is a part and parcel of UNCLOS and UNCLOS is a part and parcel of United Nations under whose aegis the Treaty was signed and also came into force in 1994. Please do not cast any doubt on it; if that happens there will only be international disorder in our oceans.
China has no option to look like a big bully in South China Sea as its legal validity of her claims on South China Sea has been torn to pieces. Her repudiation of the ruling does not make it legal in eyes of the world.
China is her century of humiliation had always talked against hegemony of the western world and now she is replicating it with much greater dexterity.
Permanent Court of Arbitration (PCA) IS NOT an United Nation agency. It has Nothing to do with the UN. You are confusing the PCA with the ICJ (International Court of Justice). ICJ IS an United Nation agency.
In case the nuance escaped you, it was the UN spokesman Stephane Dujarric who announced in July 2016 after the flawed ruling was released that the PCA “has nothing to do with the UN” and that “The UN doesn’t have a position on the legal and procedural merits of the South China Sea (SCS) arbitration case.”
And, the ICJ is a UN court with sitting judges and is located in the same building as the PCA in the Hague. But the PCA is not a court at all. It only provides a registry and secretarial assistance to any “arbitral tribunals constituted to resolve specific disputes” for a fee.
As its name implies UNCLOS was initiated by the UN in 1982 and it came into force in 1994. UNCLOS is only the Law of the Sea and has no power to decided on sovereignty issues. If there is any dispute the parties can take the case to LTOS, the ICJ and the PCA.
It is therefore wrong to say that the “legal validity of [China’s] claims on South China Sea has been torn to pieces” because China claims sovereignty over the Spratly, Paracel and Pratas Islands, the Macclesfield Bank and the Scarborough Shoal and the ad hoc arbitral tribunal in the Hague made no decision on 12 July 2016 on these as UNCLOS has no power to decide on sovereignty issues.
It was the former President Ferdinand Marcos who annexed 8 features in the Spratly Islands, on 11 June 1978, using Presidential Decree No 1596 and named them “The Kalaayan Island Group”. If that was legal then there will be chaos in the world as other govts can also annex any of the 7,100 islands in the Philippines, using a Presidential Decree.
China could have but chose not to colonize the Philippines in 1405 when Admiral Zheng He set sail to South East Asia, Ceylon, India, Oman, Saudi Arabia and East Africa with over 22,000 men and 300 ships, 87 years before Columbus set sail to the new world.
It was Spain which later colonized the Philippines in the 16th century, after Magellan was killed by Chief Lapu Lapu and his savages at Mactan Island in 1512. When Spain lost the Spanish-American war, the Philippines was again humiliated as it was colonized by United states as a war booty in 1898.
The colonial bullies were Spain, Portugal, Britain, France, Holland, Germany, Japan and the United States.
A typical case of shooting the messenger without reading the message. Why at all should the PAC go against China? Obviously they did not find any substance in the claim.
Sad to say that China that was blaming all imperialists at the time of the formation of PRC is practicing with dexterity the very same imperialism. Her arbitrary occupation of reefs and rocks and constructing artificial islands browbeating all smaller countries in the region: Her occupation of Dokalam Plateau belonging to a small country like Bhutan are stark examples of using her might to sort out disputes international disputes.
There is no magnanimity of so called ‘Middle Kingdom’; it is unadulterated hegemony.
Whatever justification China may adduce; beyond doubt she is walking on a very thin ice.
1 “A typical case of shooting the messenger without reading the message.”
What you claimed is not true. If you are indeed the messenger and not the Devil’s Advocate, then whoever asked you to convey the false message that “To say that the Permanent Court of Arbitration (PCA) has nothing to do with UN is a fallacy”, is the one who shot you in the Gluteus Maximus.
I have shown that it is the UN spokesman who confirmed that the PCA has nothing to do with the UN but you still choose to ignore it, showing, without a doubt, that you are not the messenger but the Devil’s Advocate.
2 “Why at all should the PAC go against China?”
You are showcasing your ignorance here. The ‘PAC’ does not exist in the Hague. I presume you mean the ‘PCA’. The ad hoc arbitration was held at the PCA, which is not a court, with sitting judges.
It therefore flies in the face of logic to imply that the PCA ‘go against China’ when all the PCA did was only to provide a registry and secretarial services for a fee to the parties legally constituted to go there for arbitration.
The PCA did not do the ruling, the ad hoc arbitral tribunal did but there were too many controversies for it to be taken seriously. See my opinion piece below:
http://www.straitstimes.com/opinion/did-the-ruling-sink-the-rule-of-law
Even President Duterte of the Philippine has decided to set the ruling aside as he said “it is only about entitlements and not about sovereignty.”
3 “Obviously they did not find any substance in the (Chinese) claim.”
China claims sovereignty over the Pratas, Paracel and Spratly Islands, the Macclesfield Bank and the Scarborough Shoal and the tribunal did not make any ruling on these sovereignty claims, as the tribunal had no power to decide on matters pertaining to sovereignty under the provisions of Unclos.
3 “Her arbitrary occupation of reefs and rocks and constructing artificial islands browbeating all smaller countries in the region:”
China has not colonized any country like Britain, France, Portugal, Spain, Holland, Germany, Italy, the USA and Japan did in the past and has no plans to pave the way to conduct imperialism now or in the future. But she has every right to occupy the reefs, rocks, cays and shoals which she has sovereignty over.