The sword of Damo­cles still hangs over the South China Sea

The Myanmar Times - - News - YUN SUN news­room@mm­times.com

CON­TRARY to wide­spread spec­u­la­tion, ten­sions in the South China Sea did not peak af­ter the July 12 rul­ing by the ar­bi­tral tri­bunal: So far, China has not an­nounced the cre­ation of a South China Sea Air De­fence Iden­ti­fi­ca­tion Zone, nor has it started the land recla­ma­tion of the Scar­bor­ough Shoal. Both had been an­tic­i­pated as highly likely, and highly desta­bil­is­ing, re­ac­tions from China in re­sponse to the un­favourable rul­ing.

In China’s view, such a rul­ing was ex­pected – al­though Bei­jing did not nec­es­sar­ily fore­see such a land­slide vic­tory for the Philip­pines. How­ever, key fac­tors, es­pe­cially the at­ti­tudes of the United States and the new Duterte ad­min­is­tra­tion in the Philip­pines, played an im­por­tant role in China’s re­ac­tion to the rul­ing.

Un­der­stand­ing that the rul­ing would not favour China’s po­si­tion, Bei­jing had crafted and cir­cu­lated its “Four No’s” pol­icy long be­fore the rul­ing was an­nounced – “no par­tic­i­pa­tion, no ac­cep­tance, no recog­ni­tion and no im­ple­men­ta­tion”. While nonChi­nese le­gal ex­perts have ar­gued that the rul­ing would be “binding” re­gard­less of whether China ac­qui­esces to be bound by it, peo­ple un­der­stand that the sig­nif­i­cance of the rul­ing would be more le­gal, sym­bolic and po­lit­i­cal than ma­te­rial or mil­i­tary. There­fore, for Bei­jing, as long as its de facto control of the ar­ti­fi­cial is­lands and mar­itime ar­eas is not af­fected, the rul­ing it­self will not change the sta­tus quo in the South China Sea in the near term.

The other side of the same judge­ment is that a le­gal and po­lit­i­cal is­sue should first of all be re­sponded to through le­gal and po­lit­i­cal means. China ral­lied a tremen­dous cam­paign to at­tack the le­gal­ity and cred­i­bil­ity of the ar­bi­tral tri­bunal it­self. One of the cam­paign’s cen­tral ar­gu­ments is that the tri­bunal it­self is not re­lated to the In­ter­na­tional Court of Jus­tice, and the Per­ma­nent Court of Ar­bi­tra­tion, which the tri­bunal is as­so­ci­ated with, is not a part of the UN sys­tem. Fur­ther­more, China has at­tacked the im­par­tial­ity of the tri­bunal given the se­lec­tion of the judges made by Ja­panese Judge Shunji Yanai, and the source of its fund­ing from the Philip­pines.

De­spite these loud and seem­ingly rea­son­able ar­gu­ments, it is well un­der­stood in China that it has al­most en­tirely and ir­re­versibly lost the bat­tle on the le­gal­ity of its nine-dashed line, ar­ti­fi­cial is­lands, ex­clu­sive eco­nomic zones and his­tor­i­cal rights ar­gu­ments. No mat­ter how Chinese of­fi­cials and ex­perts at­tack the case and the tri­bunal it­self, the rul­ing of July 12 will have a pro­found and long-last­ing im­pact on fu­ture Chinese ac­tions and the set­tle­ment of the dis­pute, if any. The rul­ing will be con­stantly and widely re­ferred to and used as the le­gal foun­da­tion for other na­tions’ in­ter­pre­ta­tion of in­ter­na­tional law and ac­tions. China can stop the rul­ing from be­ing en­forced, but it can­not force other coun­tries to em­brace its po­si­tions. In the long run, China’s im­po­si­tion will be coun­ter­pro­duc­tive.

Yet in the short term, China may not per­ceive the rul­ing as a fail­ure, pro­vided it doesn’t pre­cip­i­tate an im­me­di­ate change to the sta­tus quo. China’s largest con­cern on the ground has al­ways been how the United States will “in­ter­fere” in the South China Sea. This is be­cause the US is re­garded as the only party in the re­gion with not only the ca­pac­ity to chal­lenge China’s po­si­tion in the South China Sea but also the will to do so. The three free­dom of nav­i­ga­tion op­er­a­tions by the US since 2015, as well as Wash­ing­ton’s sup­port for the rul­ing by the ar­bi­tral tri­bunal, all served as ev­i­dence to China that the US in­tends to cur­tail China’s am­bi­tions within the first is­land chain.

Many Chinese an­a­lysts spec­u­lated that the US would ex­ploit the un­favourable rul­ing for China and con­se­quently en­hance its mil­i­tary pres­ence in the South China Sea. In their view, the rul­ing would em­bolden Manila, push­ing it to seek closer mil­i­tary co­op­er­a­tion with the US, in­clud­ing but not lim­ited to arms sales or even joint pa­trols of the dis­puted ar­eas. There has been a ma­jor con­cern in China that the US would take ac­tion to en­force the rul­ing or, at a min­i­mum, to counter China’s pres­ence in the dis­puted ar­eas.

In­ter­est­ingly, such an­tic­i­pated Amer­i­can moves have not yet taken place. The of­fi­cial US po­si­tion re­mains un­changed: to sup­port the rule of law and urge all claimants to avoid provoca­tive state­ments or ac­tions. No free­dom of nav­i­ga­tion op­er­a­tions have been an­nounced or con­ducted since the rul­ing was re­leased. China par­tic­i­pated in the multi­na­tional mar­itime ex­er­cise RIMPAC 2016, which for Bei­jing con­firmed Wash­ing­ton’s de­sire to keep the mil­i­tary-tomil­i­tary ex­changes open, to man­age ten­sion and to avoid con­flicts. Such con­fi­dence had ex­isted more or less since the two mil­i­taries signed the agree­ment on mil­i­tary air and naval en­coun­ters in the South China Sea a year ago. How­ever, the US ac­tions this year, and the im­por­tance at­tached to the rul­ing be­fore July 12 raised key questions in China about whether Wash­ing­ton in­tended to con­tinue to abide by the agree­ment.

Another fac­tor that has made China more com­fort­able about its stance in the South China Sea is the chang­ing do­mes­tic pol­i­tics in the Philip­pines. It is not a se­cret that the new Duterte ad­min­is­tra­tion is in­ter­ested in so­lic­it­ing Chinese sup­port for its do­mes­tic eco­nomic agenda, and the rul­ing it­self will most likely be used as a bar­gain­ing chip. Since Manila’s po­si­tion has soft­ened and be­come more open to ne­go­ti­a­tion, China is more than will­ing to put for­ward the eco­nomic charm needed to im­prove bi­lat­eral re­la­tions. As long as Bei­jing and Manila ap­pear rec­on­ciled and co­op­er­a­tive, any crit­i­cisms as­so­ci­ated with the rul­ing by out­siders will be much less cred­i­ble or ef­fec­tive.

The game in the South China Sea might have come to some tem­po­rar­ily sta­bilised stand-off for the time be­ing, but it is far from over. We are lucky that the July 12 rul­ing did not lead to a dis­as­trous out­break of con­flict, al­though the sword of Damo­cles will con­tinue to hang over the hori­zon.

– Pol­icy Fo­rum

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