On Tuesday, the long-awaited ruling from the Hague’s Permanent Court of Arbitration may mark a legal watershed in Asian international relations. Brought by the Philippines in January 2013, the case asks the tribunal to rule against China’s activities in the Spratly Islands, where both Manila and Beijing assert sovereignty over maritime territory. The case, however, is widely seen as a proxy for China’s expansive claims over the entire South China Sea, which has made that strategic body of water one of the world’s flashpoints over the past half-decade. As much attention as the court case is receiving, however, the bigger story is how a raft of recent confrontations shows how close the region is to conflict.
Asia’s security troubles seem placid when contemplated in the courtroom. Many legal observers believe that China will lose the arbitration case, putting paid to its oft-repeated pronouncements about how all of the South China Sea is Chinese. So does Beijing, which refused to participate in the proceedings and which for months has telegraphed that it also will refuse to abide by any ruling that goes against its interests. Such is the weakness of international law when placed against state policies.
Perhaps worse, the ruling, whatever it decides, will not tackle the most explosive issues. The tribunal has already made it clear that it cannot rule on questions of sovereignty over specific territories. Further, it is unknown if the court will rule on the so-called “9-Dash Line” claims of China to nearly the whole sea; any rejection of this claim would significantly undercut Beijing’s position in the region.
The tribunal is expected, however, to decide on the question of whether land features occupied by China in the Spratlys are islands, and therefore protected under international law, or are simply rocks and what are know as “low tide elevations,” which do not carry the same level of legal protection. If determined to be islands, then China may be justified in claiming exclusive economic zone (EEZ) rights for fishing, administrative, and construction purposes, and in keeping other nations out.
Yet regardless of the court’s ruling, China’s refusal to play along with international arbitration already indicates the limits of the law in the waters of East Asia. More worryingly, while the Hague court has been finalizing its decision, the nations of East Asia seem increasingly likely to flail into armed conflict of some kind. Just in the last week alone, incidents from north to south in Asia’s seas showed how tenuous ties are between nations large and small.
In the East China Sea, Japanese fighter jets challenged Chinese fighters over the disputed Senkaku Islands, which are controlled by Japan, taking what Beijing condemned as “provocative actions” and targeting the Chinese planes with fire-control radar. Slightly further south, the Taiwanese navy accidently fired off a supersonic anti-ship missile in the Taiwan Strait, hitting a Taiwanese fishing trawler and killing one crew member, raising fears that a similar accident could destroy Chinese property. Meanwhile, back in the South China Sea, the Thai navy fired on Vietnamese fishing boats they claimed were in Thai waters, wounding two sailors, while another sailor remains missing. And in the latest incident, Vietnam claims that two Chinese vessels, apparently maritime patrol craft, rammed and sank a Vietnamese fishing boat. As these incidents mount, the chances alike for greater loss of life and public demands for reprisals grow.
The growing risk in Asia seems to fly in the face of other trends. There are far more venues for diplomatic and legal engagement in Asia today, for example, through the Hague, the United Nations, the ASEAN Regional Forum, and the like. This allows states in the Asia-Pacific to meet regularly and talk with each other in neutral venues, a far cry from decades past. Moreover, Manila’s decision to file an arbitration case with the Hague could have been a turning point in Asian international relations, where the rule of law was seen to supersede threats of force.
If the region’s largest nation refuses to abide by the legal process, however, then there is far less hope for impartial and measured approaches to resolving disputes, as states lose faith in rules and norms. Instead, each nation will feel a greater sense of insecurity, and will likely to be more willing to test the will of its antagonists. Throw in a tragic accident, like the launching of a missile against a civilian vessel, or the continued intimidation and occasional sinking of smaller boats, and Asia can only hope that cool heads prevail during times of crisis. The lack of trust evident between capitals in the region, though, will make crisis diplomacy that much more difficult.
That no hostilities have yet broken out does little to give confidence that the nations of Asia are moving towards a future marked more by cooperation than competition. That, in turn, means the demands on the United States to act as a guarantor of regional stability will continue. From formal treaty allies like Japan and the Philippines, to partners such as Singapore and Vietnam, the expectation may well strengthen that the U.S. Navy and Air Force will maintain their presence and act to damp down any potential conflict, particularly between China and its neighbors. Beijing has already warned Washington not to harm China’s sovereignty and interests in the South China Sea, making it clear that it will consider U.S. intervention of any kind a provocation.
This leaves the last months of the Obama Administration a delicate time for U.S. policy in Asia. A weak response to any Chinese action will embolden Beijing and discourage America’s partners. Maintaining pressure on China through direct and more frequent freedom of navigation operations, though, is only a tactic, not a strategy for bringing about Beijing’s adoption of international norms. Among the headaches the next president will inherit, a muddled Asia policy is near the top of the list. Meanwhile, the region will wait to see if it stumbles into war.
— Michael Auslin is the author of The End of the Asian Century (Yale).
NOTE: This post has been fixed to indicate that Taiwan accidentally struck a Taiwanese vessel, not a Chinese one.