Photo Credit: Jay C. Pugh / US Navy
By: Kyle Deming, Columnist
In July, the Permanent Court of Arbitration (PCA) at The Hague handed down a lengthy and long-anticipated decision in The Republic of the Philippines v. The People’s Republic of China. The case, which the Philippines initiated in January 2013, concerned the validity of China’s “Nine-Dash Line” under the UN Convention on the Law of the Sea (UNCLOS) and the legal status of natural features in the region. China, which refused to participate in the Court’s proceedings, lost nearly every component of the award: China’s claim to extensive “historic rights” was deemed incompatible with its obligations under UNCLOS, and the handful of rocks and artificial islands it held in the South China Sea were ruled not to provide a 200-nautical mile Exclusive Economic Zone (EEZ).
Perhaps unsurprisingly, as of mid-September, Beijing had rejected the decision in statements and ignored it in practice. The Chinese Foreign Ministry labeled the award “null and void [with] no binding force.” Satellite data from the CSIS Asia Maritime Transparency Initiative shows evidence that China is building aircraft hangars on several artificial reefs, including Mischief Reef, which was deemed part of the Philippines’ EEZ and continental shelf in the PCA’s decision.[i] Worse yet, the Association of Southeast Asian Nations (ASEAN) was unable to present a unified front in favor of the decision – with many of its members, particularly Cambodia and Laos, too economically dependent on China to risk their relationships with their larger neighbor.[ii]
There is almost no appetite in the region for enforcing the decision; the award is legally sound, but UNCLOS and the PCA have no bite. While the Philippine Foreign Ministry hailed the decision as an “important contribution to ongoing efforts in addressing disputes in the [South China Sea],” it also has little choice but to pair its praise with calls for “restraint and sobriety” until a solution can be worked out. Unfortunately, this tack does not guarantee that conflict can be avoided or that domestic politics will not intervene. Vietnam has already moved mobile rocket launchers onto five of its islands in the Spratlys, and Philippine President Rodrigo Duterte alternates wildly between warning of a “bloody confrontation” and claiming that “the Philippines are all for peace.”[iii][iv] The result is a disorganized free-for-all, in which China can indefinitely postpone concessions and justify its buildup as a national sovereignty and self-defense issue—and as the most powerful regional claimant, it can largely get what it wants.
The United States, understandably, has little wish to get involved beyond its current commitments; in a 2012 Washington Post interview, an anonymous DoD official noted, “I don’t think that we’d allow the U.S. to get dragged into a conflict over fish or over a rock.”[v] But ensuring that international law is respected and binding on all parties while avoiding conflict in the region is infeasible without US involvement. Preventing escalation in the South China Sea while ensuring a respected outcome that paves a path toward a long-term resolution requires both a well-coordinated multilateral approach and a willingness to gradually acclimate China to the new maritime legal reality. Over time, this can slowly facilitate the likelihood of talks to permanently settle the region’s resource and security issues.
First, the US needs to be on the same page as its allies in the region, especially the Philippines. Duterte’s penchant for making statements out of alignment with US—and sometimes Philippine—policy undermines the coherence of US and allied deterrence. At various times, Duterte has claimed that he will back off the South China Sea issue if China “build[s] me a train from Manila to Bicol”; at other times, he pledges to bring a “reckoning” to China over the fate of Scarborough Shoal.[vi][vii] The US needs to communicate its intentions to the Philippines clearly, neither promising to unconditionally aid Manila (say, if the Philippines attempt to seize back Scarborough Shoal) nor leaving them to their own fate against China.
Second, the US should initiate another wave of Freedom of Navigation Operations (FONOPs) in the South China Sea in a manner that explicates the PCA decision’s legal implications. Prior to the award, the US undertook three separate FONOPs, sending guided missile destroyers on “innocent passage” within Chinese territorial waters to rebuke “excessive maritime claims,” particularly prior notification requirements. With the decision rendered, the US should undertake actions that are consistent with and emphasize the legal environment in the South China Sea. For example, Mischief Reef was deemed a “low-tide elevation” by the Court, entitled to neither an EEZ nor a 12-nautical mile territorial sea. If the US conducts normal operations (rather than innocent passage) in transit near the island, it can signal that it will “sail, fly and operate wherever international law allows.”[viii] A routinized system of regular FONOPs, around as many features in the South China Sea as necessary, and potentially accompanied by allies like Australia, the Philippines, or Japan, will cement the practical impact of the ruling.
China has, of course, objected to such a possibility; in August, Chinese diplomatic officials labeled Japanese participation a “red line.” This seems unlikely to deter Japan. On September 16, Japanese Defense Minister Tomomi Inada announced Japan’s interest in joining naval training exercises and capacity-building in the South China Sea and expressed support for US FONOPs.[ix] It should also not deter the United States: if FONOPs regularize naval access rights in and around well-understood legal boundaries, the rights should logically apply to all parties.
FONOPs are likely to come with other costs and benefits. Demonstrating US resolve and capability to exercise visible naval power in defense of navigational rights and international law is a positive signal of US commitment to the region. On the other hand, there remains some risk that China could retaliate by doubling down on its dredging and buildup on islands in the South China Sea or even by buzzing a US destroyer. That said, the gains from FONOPs outweigh the risk; the onus is on China to respect lawful passage of US vessels, and unwarranted retaliation will dig a deeper hole for its attempts to accomplish regional goals without the application of force. As much as Beijing cries provocation when the US undertakes FONOPs, it is unlikely to risk a serious conflict with the US over what should be widely respected non-kinetic operations.
Ultimately, the South China Sea dispute gets to a broader question of sovereignty—who owns the natural features in the South China Sea, and what they can do with them—that needs to be worked out in a bilateral or multilateral forum. So far, China has signaled its strategy: ignore the PCA decision, build up its presence in the South China Sea, and win de facto recognizance of its status with a preponderance of military power. Engaging its regional allies and stepping up FONOPs to politically and legally isolate Beijing is the logical US response.
[i] “Photos suggest China built reinforced hangars on disputed islands: CSIS,” Reuters, August 11, 2016, http://www.reuters.com/article/us-southchinasea-china-images-idUSKCN10K08P.
[ii] Liu Zhen and Catherine Wong, “Most Asean countries ‘want to stay out of Beijing’s South China Sea dispute with the Philippines,’” South China Morning Post, July 28, 2016, http://www.scmp.com/news/china/diplomacy-defence/article/1995991/most-asean-countries-want-stay-out-beijings-south-china.
[iii] “Duterte warns China over South China Sea dispute,” Al Jazeera, August 24, 2016, http://www.aljazeera.com/news/2016/08/duterte-warns-china-south-china-sea-dispute-160824130357007.html.
[iv] Cris Larano, “Philippines’ Duterte Says Arbitration Ruling to Be Basis of South China Sea Talks,” The Wall Street Journal, September 2, 2016, http://www.wsj.com/articles/philippines-duterte-says-arbitration-ruling-to-be-basis-of-south-china-sea-talks-1472822919.
[v] Eric Hyer, “Here’s how the South China Sea ruling affects U.S. interests,” The Washington Post, August 11, 2016, https://www.washingtonpost.com/news/monkey-cage/wp/2016/08/11/heres-how-the-south-china-sea-ruling-affects-u-s-interests/.
[vi] “Duterte risks regional security,” The Australian, September 17, 2016, http://www.theaustralian.com.au/opinion/editorials/duterte-risks-regional-security/news-story/587054798e4e098a0a2f3f9fb2e0fe72.
[vii] Doug Bandow, “US military should play no part in Duterte’s bloody ‘reckoning’ with China,” South China Morning Post, September 8, 2016, http://www.scmp.com/comment/insight-opinion/article/2017579/us-military-should-play-no-part-dutertes-bloody-reckoning.
[viii] Julian Ku, “Possible U.S. Responses to the South China Sea Arbitration Award: The Aggressive FONOPs Option,” Lawfare, July 13, 2016, https://www.lawfareblog.com/possible-us-responses-south-china-sea-arbitration-award-aggressive-fonops-option.
[ix] Morgan Chaifant, “Japan Wants Joint Training Patrols With U.S. in South China Sea,” The Washington Free Beacon, September 16, 2016, http://freebeacon.com/national-security/japan-joint-training-patrols-us-south-china-sea/.