U.S. Foreign Policy on the Rocks

U.S. Foreign Policy on the Rocks
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The tribunal that has taken jurisdiction over the Philippine suit against China concerning islands and rocks in the South China Sea (“SCS”) is to issue its decision on the merits on July 12, 2016. However well-reasoned the award, it cannot undo the damage caused by the litigation. The Philippines will remain unable to force China to modify its positions. China will ignore the award. And the US will be forced to continue to expand freedom of navigation exercises and other measures to push back against China’s conduct.

The Philippines and China had agreed to negotiate their conflicting claims. But the lack of progress in bilateral talks, and China’s aggressive response to Philippine actions, led the Philippines to sue, hoping somehow to improve its apparently hopeless situation. The Obama Administration claimed to take no position on the merits, but repeatedly called on China to respect the “rule of law” hoping, like the Philippine government, that the lawsuit would: pressure and embarrass China into backing off its expansive claims; tempt other States with SCS claims to sue China; overcome China’s failure to negotiate at a meaningful pace; and advance the rule of international law.

The suit has achieved none of those objectives. It has embarrassed China, but instead of backing off its claims China implemented them with ferocity. Chinese diplomats and scholars moved away from nuanced arguments to more rigid adherence to the regime’s position that China is sovereign over all the land features and waters within the “indisputable” Nine-Dash Line.  And China has matched this escalation in rhetoric with an escalation in action in contested areas, establishing naval stations, building military air strips, altering features, declaring sea and air restrictions, and announcing its intent to build tourist facilities.

No other State has as yet adopted the Philippine’s litigation strategy. China’s extreme reactions to the Philippine suit were undoubtedly intended to deter that result. In fact, China has taken actions within areas claimed by those States, such as naval patrols and mineral exploration, and has made clear it is prepared to go further.

The Philippines’ frustration over China’s failure to engage in meaningful maritime negotiations is understandable. But border disputes commonly last for long periods, even between friendly States (Canada and the US have some since the War of 1812). Maintaining a workable status quo is preferable to international litigation against the will of one of the States involved. It is also mistaken to assume that China will never negotiate a settlement; China has settled all its land border disputes but one, and it has settled at least one maritime border dispute in the SCS. Patience would have been preferable, especially for the far weaker Philippines.

The notion that the Philippine suit could advance the international rule of law was flawed from the start. The distinguished lawyers assigned to decide the case will publish useful guidance on some of the many unsettled issues under the UN Convention of the Law of the Sea (“UNCLOS”). The Tribunal’s limited jurisdiction prevents it, however, from ruling on sovereignty or expressly resolving those disputes the Philippines needs resolved. It is curious indeed that the Philippines and its supporters would have pursued this litigation when to justify the Tribunal’s jurisdiction required framing the issues in a form that undermined its purpose.

Taking jurisdiction over the case despite China’s reservations also lent support to the already clear concern that international tribunals are too eager to assume jurisdiction in the face of a State’s reasonable objection. States frequently submit important matters to international tribunals, including border disputes, and almost invariably abide by their rulings. But States that contest jurisdiction often refuse to abide by any award that follows, as China will here. Such situations do not strengthen the international rule of law. In fact, the Tribunal’s decision to assume jurisdiction has made it even less likely that the US Senate will agree to ratify UNCLOS; those of us who support ratification had argued that the very reservations relied on by China would prevent such suits.

The US does need a strategy to deal with China’s unjustifiable claims and actions in the SCS. But that strategy needs to be based on ideas and initiatives that are effective at persuading China to adhere to its wise and successful tradition of restraint. The Philippine lawsuit fails this test. The US should urge the Philippines to abandon its legal initiative, and China to suspend its aggressive response, and should sponsor negotiations to return the parties to a workable status quo.



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