A War of Words Over the South China Sea

It is true, as Nietzche pointed out, that law is a weapon of the weak. The powerful do not like being bound by law. This applies to great power China as well as to the U.S.A.

Those appealing to law or seeking arbitration in what China calls the South Sea—Vietnam over what it calls the East Sea, and the Philippines over what it calls the West Sea—are the middle powers of Southeast Asia whose territory, resources, and future are challenged by P.R.C. expansionism.

Because these countries that wish to use the law to check P.R.C. aggression also have asked India, Japan, Russia, and the U.S. to help them deter P.R.C. military assertiveness, the U.S. has been brought in to a coalition against P.R.C. expansionism on the side of international law.

That is, the Chinese admiral is correct that the U.S.A. does not always act in accord with international law. The Chinese admiral uses that fact as a pretext to rationalize the P.R.C. ignoring international law in maritime Asia. He has no interest in advancing the general cause of international law. He wants to legitimate China’s right to ignore international law by pointing out that America ignores international law when it suits the U.S. Government.

The Chinese admiral is also correct that action and counter-action in maritime Asia could cascade out of control and spark a larger military clash. Indeed, Chinese behavior and presuppositions, resting on an ever more hawkish and chauvinistic balance of forces at the commanding heights of C.C.P. power, makes that unhappy outcome ever more likely.

To P.R.C. ruling groups, Chinese, by their very nature, are uniquely peaceful and therefore too often victimized by others, who supposedly are not uniquely superior Chinese people. For these powerful patriots in the P.R.C., China is responding to the provocation of an American re-balancing to Asia and to a Japanese provocation in the purchase of the Senkaku Islands, which have been administered by Japan since January 1895. In the view of C.C.P. leaders, China only wants what is rightfully China’s since time immemorial plus the 1947 11-dash line claim of Chaing Kai-shek’s R.O.C. in 1947.

Needless to say, the P.R.C. narrative, its official story, has little to do with the actual history of maritime Asia. But, for now, the mythic narrative of the C.C.P. is not one that Chinese patriots can question.

Consequently, the positions of the American admiral really do not face up to the war dangers to which the Chinese admiral correctly calls attention. After all, Japan is not going to subordinate itself to China. Nor will Vietnam. India sides with Vietnam and Japan. As with Europe when it rose, so the rise of Asia produces war-prone rivalries among Asian nations.

The main war-danger lies inside of ruling groups in the P.R.C. who are persuaded that all other Asian governments eventually will surrender to Chinese domination because these weaker states cannot win on territory against an ever stronger Chinese military and because they do not want to lose the benefits of Chinese imports, Chinese tourists, and Chinese investors by claiming territory that, as the C.C.P. sees it, these lesser Asian powers cannot hope to hold on to.

For these Asian governments that seek to resist China stealing the future of their nations, the American admiral is not coming to grips with just how serious is the Chinese challenge.

If the U.S.-China strategic communication continues the pattern established since 2015, tension between the two countries over the South China Sea is only likely to increase. The pattern is well illustrated by the remarks from the U.S. side by Admiral Harry Harris over the past year and from the Chinese side by Admiral Sun Jianguo’s speech at this year’s Shangri-La Dialogue in Singapore.

It is not clear what Harris means by “Chinese hegemony” in East Asia. If he has in mind “military dominance,” then the current military hegemon in the Western Pacific is clearly the United States. If the mere fact of military hegemony is the problem, then surely the current American military dominance is as much a problem as a putative Chinese military hegemony in the future.

But is it China’s plan to establish military hegemony in East Asia? The question is impossible to answer as it tries to divine China’s strategic intentions. Great power intentions are hard to ascertain, not least because they may change in the future. But it is important to note that inside China, policy elites are still debating about China’s strategic goals in East Asia. No doubt some people, especially those from the military, entertain the ambition of a Chinese military hegemony in East Asia. But it is by no means the majority view, and it has to compete with other influential policy ideas from other segments of China’s policy and intellectual communities.

The point of policy significance is this: It is politically counterproductive to turn a possible future Chinese ambition into a putative current policy decision. Such comments from the U.S. navy’s top commander in the Pacific only suggests to Chinese leaders that the American military leadership is misreading, intentionally or not, China’s policy toward the South China Sea. This will only encourage them to make worst-case preparations in the event that such a military view is turned into America’s official policy toward China. To be sure, China’s policy is sometimes hard to read. But it will not be too difficult for the U.S. military to find a less inflammatory and politicized strategic discourse than has been deployed since last year, in order to create more room for diplomacy and compromise.

The problem on the Chinese side is the opposite of the U.S. error. While the U.S. accuses China of a hegemonic ambition, China goes to the other extreme of denying any such ambition at all. Unfortunately, on this increasingly vital issue of a possible Chinese hegemony in East Asia, the two sides keep talking past each other. For historical reasons, when Chinese leaders reject hegemony, they are thinking of it in terms of 19th century colonialism and imperialism in the form of physical exploitation and conquest. It is time for Chinese leaders to recognize that to some Western policy elites, hegemony may come in different forms that can be underpinned by different dimensions of national power. Legitimate authority can be a form of hegemony, as can military dominance. China needs to think hard about its strategic goals in East Asia, and in the process provide a convincing strategic narrative to the outside world.

How much should the world fear a Chinese hegemony in East Asia, if it ever comes true? A Chinese hegemony would be different from an American hegemony, just as American hegemony in the Western camp in the early years of the Cold War was different from Soviet hegemony in the Communist bloc. In a book published last year, I explored the dynamics of Chinese hegemony in East Asian history about 600 years ago, and it seems that Chinese rulers back then were more interested in establishing legitimate authority in regional politics than in installing military dominance. It will be most interesting to watch what a powerful People’s Republic of China would do in asserting its regional leadership.

We should all be thankful that we have not (yet) reached the stage at which the admirals are the ones setting policy in the South China Sea. Just by the nature of these two very capable individuals’ shared profession, their analyses and statements must tend more to the bellicose and zero-sum than those of civilian political leaders. Military experts must occupy a stereotypically Hobbesian world in which states suspect the worst of one another—but politics demands both attention to such security analysis and a commitment to developing schemes of ordered cooperation beyond this level.

Our professions are, to a large extent, our communities of discourse. They can determine the questions we ask, and, as a result, limit the potential forms of output we can generate on the basis of this input. For example, in a New York Times article earlier this year, a journalist describes overhearing a high-ranking U.S. Army general asking Admiral Harry Harris “Would you go to war over Scarborough Shoals?”

This is an important question. In one variant or another, it dominates many discussions of the South China Sea dispute in both the U.S. and China, not to mention in various other involved states (with the proper disputed zone filled in). Worthy as it may be, this essentially military question cannot be the only one that we ask ourselves when we discuss the conflict. The answer to it is “no” until circumstances force it to turn into a “yes.” To get a better output, you need a different input.

Politics, “the art of the possible,” will be the profession that decides whether any better outcome than war can decide the future of the region. Leaders of the involved countries, elected or not, should find ways to work together rather than allowing their states’ different territorial claims or interpretations of international law to devolve into zero-sum tests of military strength. If they represent their citizens’ real interests, they will do so.

At the same time, however, I would like to draw attention to what I see as a serious problem with the role of international law in currently ongoing debates. The legal profession has to a large extent been mobilized by various states to either defend territorial claims or international legal doctrines such as particular interpretations of the freedom of navigation. As a consequence, Admiral Sun discusses the inviolable principles of territorial sovereignty, and Admiral Harris discusses the sacrosanct “rule-based order” of maritime freedom. Lawyers are reliably available to defend and explicate both positions, as they usually are.

There is nothing wrong with this, but international lawyers and academics also have a responsibility to ask whether their profession can generate any unique insights that might help to improve the chances for a politics of peace in the South China Sea. They can do this by paying attention to questions that are otherwise ignored or undervalued in existing debates. For example, it is a specifically legal question to ask whether any state or states has a potentially viable claim to sovereignty over the disputed territories of the South China Sea under existing doctrine, and, if so, which states those might be. There is at present no forum or body that has even attempted to comprehensively address the first part of this inquiry, let alone the second. The Philippines v. China arbitration cannot address this question because it is limited to considering applications of the law of the sea under UNCLOS.

Neither Admiral Sun’s defense of China’s territorial sovereignty nor Admiral Harris’ emphasis on maintaining the mobility of U.S. warships is directly served by such an inquiry. But more attention to this question would allow the law, per se, to do what it does best: supply some certainty in otherwise ambiguous situations. Even without determining which state has the best legal argument, some of the more flimsy or outré claims could be effectively ruled out. Chinese leaders are correct when they point to the principle of territorial sovereignty as being more fundamental than, for example, doctrines of unrestricted sailing on the high sea. Yet this is not a matter to be handled only via bilateral negotiations. The fact is that some territorial claims are more robust than others and some better reflect existing doctrine and precedents.

Other questions that legal professionals can ask include the meaning of specific documents, such as the Treaty of Taipei of 1952 between Japan and the Republic of China, which in Article 2 stipulates Japan’s relinquishing of its territories in the South China Sea. A lawyer should ask whether Japan actually owned the territories at the time it relinquished them, and, if so, what international legal doctrine says about the transformation of that ownership as a result of its renunciation. It may be an awkward question, but the key to interpreting this, the only postwar international law document that clearly deals with the ownership of the disputed territories, may turn on international law specialists’ investigating whether Japan ever legitimately owned territories in the South China Sea. The answer to this question is not immediately obvious—acquisition of territory by “conquest” was long considered legally valid, but may potentially have been illegal by the time Japan occupied these territories. The same goes for France, which had earlier sought to annex the Spratly and Paracel island chains.

Military professionals must ask whether wars can or should be waged. Political analysts should ask whether solutions beyond mere armed conflict are possible. Lawyers, in this case, should be asking what the exact rules are (or were during the period in question) for determining who owns what, and how those rules might be applied objectively to the real core issues of the dispute. There is no ideal “just” distribution of property, or territory, to satisfy all parties. All that we can hope to determine is an acceptable, relatively neutral set of rules and standards in line with existing precedent. Agreeing upon such rules makes further cooperation possible.

Although the finer points of international law have some relevance to what is going on now in the South China Sea, it is mainly a story of Chinese growing power and assertiveness. China is throwing its weight around, and demanding obeisance from the other countries in the region, and acquiescence from the United States.

In all complicated maritime sovereignty disputes, there are strongly held positions on all sides. What matters is how China, as the most powerful country concerned, behaves. If it uses its power to extract maximum concessions, the United States and other countries have a great deal to worry about. If it takes leadership to work out some roughly equitable solution, in which the other countries have both territory and exclusive economic zone (EEZs) so they can gain the benefit of maritime resources, then we can all believe the fine sentiments in the first part of Vice Admiral Sun’s speech. So far, careful observers see little sign of a Chinese sense of any country’s claims and interests but their own.

To ask whether U.S. or Chinese official statements ‘more accurately describe’ the situation in the South China Sea misses the political nature of such statements. They reflect divergent views of international order, which assign the same events with different meanings. For Admiral Harris, peace in the Asia-Pacific is based on U.S. military power and the freedom of navigation needed to exercise it, which is being undermined by China’s actions. For Admiral Sun, China is self-evidently a peaceful nation, which is asserting its sovereign rights in the face of foreign threats and provocations.

Within these self-contained normative visions, each side employs international law to legitimize its own behavior and villainize the other’s. This adversarial discourse obscures the nature of international law, which is mutually constructed by states to reconcile conflicting interests. Perhaps the best example is the ‘grand bargain’ embodied in UNCLOS, which achieved near-universal agreement to a governing framework for ocean space, but at the price of leaving some contentious issues incompletely defined. These happen to be the issues at stake in the South China Sea: historic rights, the nature of maritime features, and the scope of freedom of navigation. UNCLOS’ provision for opt-outs from its compulsory dispute settlement process also highlights the mutually constituted nature of the arbitral tribunal’s authority, which derives from China’s consent as much as that of other parties to the treaty.

In this context, it is misleading to cast the arbitration’s purpose as enforcing China’s compliance with undisputed norms. Such framing also fails to capture nuance in the assertion of jurisdiction, which while within the tribunal’s authority has arguably stretched the UNCLOS framework. But it is also disingenuous for China to claim that it is the ‘embodiment of international law’ to place sovereignty above honoring a treaty commitment to compulsory dispute settlement. The nature of treaty commitments is to exchange a degree of sovereign autonomy for regulated interaction with other states.

U.S. and Chinese partisans should consider whether their increasingly heated rhetoric really promotes their respective normative visions. The viability of a ‘rules-based international order’ depends on states accepting the legitimacy of the rules, since there is no higher authority to enforce them. Compliance can be incentivized by sanctions, reputational and material, but these are unlikely to outweigh a state’s key interests.

China has framed its claims in the South China Sea as a first order interest, which is under attack from other parties’ use of international law as a political tool. Waging ‘shamefare’ against China only reinforces this narrative, and reduces the likelihood not only of China eventually bringing its claims in line with the tribunal’s ruling, but of its of future support for international legal frameworks. Conversely, the reluctance of other states to endorse China’s non-appearance before the tribunal should signal to Beijing the difficulty of delegitimizing existing institutions.

Ironically, viewing the South China Sea problem in political rather than legal terms highlights the need for cooperation. China has the means to advance its interests in the face of other countries’ disapproval, as demonstrated by its’ artificial islands, but its power is not yet sufficient to re-shape the international order’s core features. U.S. leaders for their part need to recognize that China is already integral to the Asia-Pacific’s political economy, and likely to become more so as it moves up the global technological ladder.

The choice then is not between ‘rules-based order’ and ‘Chinese hegemony’, but between compromise and confrontation. This is clearly understood by smaller actors in the region, which despite all their concerns about China are still striving to avoid adversarial positioning. The way in which the United States and China respond to the arbitration’s outcome will show whether they are reaching a similar understanding.