China Keeps the Upper Hand, South China Sea Arbitration Ruling Nonwithstanding

The judicial ruling could actually give China the advantage, if Beijing proves it can flout the law with impunity.

China Keeps the Upper Hand, South China Sea Arbitration Ruling Nonwithstanding
Credit: Official White House Photo by Pete Souza

The configuration of international power in the Asia-Pacific region is at a pivotal point, consequent to the Permanent Court of Arbitration’s sweeping rebuke to China. Paradoxically, the judicial embarrassment gives China the upper hand in the geo-strategic arena.

China could choose, of course, to respect the decision, perhaps using it as a point of departure for serious negotiations to resolve a range of South China Sea disputes. Taking that course would demonstrate an intention to accept and play a role in the existing international order of law and tradition. Instead, China has already stridently proclaimed its intention to do otherwise. By contemptuously dismissing the PCA’s ruling, China disrupts the international legal order, which it clearly regards as a self-serving construct of Western powers and an instrument for containing China’s ambitions. This is a hand, which, unless it quickly abandons it, China must play out.

Having demonstrated contempt for the traditional order, China cannot seek its advantages, but rather, must seek its collapse and replacement, at least in Asia, with an order of China’s design. That is, if China truly despises the existing international legal and traditional order, it must move expeditiously to replace it with something else. China’s surest means of doing that is to continue its aggressive buildup in the South China Sea and, in effect, dare anyone to challenge it. That is, of course, what China has been doing for the past few years. Now, however, there is no longer any credible case to be made that China’s expansion in the South China Sea is done under the cover of sovereignty or any recognized legal right.

The absence of legal pretext for China’s activities will make them appear all the more audacious, and by so doing, make China’s opponents in the region appear correspondingly weaker as they fail to mount any effective challenge. As neither international law nor regard for its reputation deters China, all that remains is military or economic force and diplomacy, neither of which holds much promise.

Sanctions of sufficient severity to alter China’s conduct seem unlikely. Nothing of the kind can come from the UN, with China on the Security Council and Russia clearly unenthusiastic about giving China a hard time in the South China Sea. Strong economic sanctions by coalitions of nations, which would have to be led by the United States, would impose huge costs on the sanctioning parties themselves, large enough to make the prospect unrealistic.

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Military confrontation at a scale that would impress China is also unlikely. No Southeast Asian country can risk such confrontation on its own. The United States would have to participate actively and forthrightly. Strong military action by the United States, however, is virtually out of the question. Freedom of navigation operations may continue without dangerous incident, providing China maintains a degree of caution, but using military force to dislodge China from the artificial islands it has constructed is beyond America’s political ability.

With the range of dangers facing the United States – terrorism at home and in Europe; war in Afghanistan, Iraq, and Syria; Russian bellicosity toward the Ukraine and potentially the Baltic states – it is impossible to imagine a U.S. president leading the country toward what would inevitably be seen by most Americans as war over tiny slivers of sand on the other side of the world. The very insubstantiality of some of the features, which caused the Permanent Court of Arbitration to reject claims deriving from them, would subject arguments for U.S. risk of combat over them to public ridicule.

The present circumstances, given China’s shrill rejection of the PCA decision, should induce grave pessimism among those who wish to contain China’s march toward hegemony in Southeast Asia. Their gloom should be deepened by the difficult prospects for the Trans-Pacific Partnership. Even as China tightens its grip on the South China Sea, the TPP holds out a possibility of increased U.S. presence and economic stakes in the region. That hope is considerably dimmed, if not quite doomed, by the postures of the two candidates to become America’s next president.

Donald Trump has denounced the TPP as bluntly and unequivocally as can be done. Hillary Clinton, after having once championed it, has abandoned it in deference to the rising left wing of her party. One ray of hope is the recent defeat of an explicit rejection of TPP that was proposed for the Democratic Party’s election platform. The larger problem, however, is that the American public has heard little but strong bashing of the TPP, from both parties, for an entire year now. Such criticism is entirely in terms of American economic interest. What is sadly lacking in the United States is strong, persistent advocacy for the TPP that clearly explains the geopolitical stakes, weighing them against purely economic national interest. Such arguments prevailed in U.S. politics during the Cold War, and helped to win it.

William G. Frasure is Professor of Government at Connecticut College.