Sun Tzu may not actually have advised building golden bridges behind one’s enemies, but there is wisdom in the idea nonetheless.
If the betting money is right that the Philippines will win on many if not most points when the tribunal ruling on its submission to the Permanent Court of Arbitration shortly hands down its decision, China can be counted upon to reject it in high dudgeon. The good news is that the judgment will almost certainly clear up some important legal ambiguities. The bad news is that it will put China in a bind, and what follows could be very bad not just for China but for everyone else as well.
The essence of the difficulty is that Beijing has succeeded in persuading its own people that the South China Sea is essentially a Chinese lake. You will search in vain for a document that states this, but China’s routine assertion that it has “indisputable sovereignty” over the South China Sea has naturally given this impression, as has its use on maps and passports of the so-called Nine-Dashed Line, which virtually screams “This is mine!” The Philippines arbitration tribunal will almost certainly proclaim the Nine-Dashed Line to be of no legal status or effect and declare certain disputed features in the South China Sea to be “low-tide elevations” (LTEs) that confer no rights to exclusive economic zones (EEZs) or continental shelves under Article 13 of the United Nations Convention on the Law of the Sea (UNCLOS). While the tribunal will steer well clear of passing judgment on territorial sovereignty, declaring certain reefs and shoals to be LTEs will implicitly undermine an extensive interpretation of Chinese rights and endorse some rival states’ maritime EEZ claims no matter who owns or controls the features in question.Enjoying this article? Click here to subscribe for full access. Just $5 a month.
Since China is party to UNCLOS and thereby legally bound by the tribunal’s decision, notwithstanding its protestations to the contrary, and since UNCLOS is the only game in town when it comes to the rules of the maritime road, a loss to the Philippines will force Beijing to choose between one of three possible responses. The first would be to accept the ruling and adjust its maritime claims accordingly. This would not solve any territorial disputes, but it would enhance China’s international standing and lead to a collective regional sigh of relief. It would also seriously endanger the regime’s domestic standing. The legitimacy of the Communist Party of China rests on two pillars, and two pillars alone: delivering steadily improving standards of living and competently defending Chinese sovereignty. China’s economic woes are undermining the first pillar; an embarrassing loss in a court of law on an issue increasingly seen in China as a core interest would undermine the second.
A second option is withdrawing from UNCLOS. Beijing could declare the entire maritime legal regime unfair and prejudicial, leaving it free to claim whatever it wants, wherever it wants. Many in China would no doubt cheer such a grandiose gesture, but the damage to China’s international reputation and standing would be tremendous. The danger of conflict would also rise dramatically.
Most likely, China will hunker down, continue to pretend that the tribunal lacks jurisdiction, railing about anti-Chinese bias in international courts, escalating its rhetoric against the Philippines, and refusing to clarify its ambiguous claims. This might keep the lid on domestic discontent, at least for a while, but it would represent an escalating commitment to a losing course of action. China’s policy and activities in the South China Sea have won Beijing no friends, stirred fears and resentments, and triggered balancing behavior. Meanwhile, the goalposts would have shifted to China’s disadvantage. The primary question would no longer be who is entitled to what, but who can and cannot be trusted to respect the rule of law.
With luck, declaring an Air Defense Identification Zone (ADIZ) in the South China Sea would not figure in China’s response. Tempting though it would be as a way of signaling commitment to a domestic audience, there are indications that Beijing may have learned from its East China Sea ADIZ that this particular game is not worth the candle. Declaring a South China Sea ADIZ would seriously undermine Chinese interests, aviation safety, and international confidence in Beijing’s judgment. Very likely it would prompt other claimant states to declare overlapping ADIZs of their own.
It is in the interest of the international community to make it as easy as possible for China to swallow the bitter pill that an adverse ruling from the tribunal would represent. Everyone – but especially the Philippines – should avoid triumphing at China’s expense. It is vital to pitch the result as a win-win, to spin it as an opportunity for deeper engagement, and to follow up with olive branches both symbolic and functional. It may take some time for Beijing to shake the proffered hands, but at the end of the day China will also benefit from whatever degree of clarity the tribunal’s decision will afford, and humiliating China’s leaders is no way to help them see this.
David A. Welch is CIGI Chair of Global Security at the Balsillie School of International Affairs, Professor of Political Science at the University of Waterloo, and Senior Fellow at the Centre for International Governance Innovation.