The international political and legal implications of the 12 July 2016, unanimous decision in the Philippines vs. China international arbitration case concerning the South China Sea (scs)2 vary significantly among the major affected interests. For the United States, the decision reads, in many ways, as an affirmation of what have been core legal elements of us policy and strategy toward the contested maritime region and China’s claims and actions therein. The panel’s ruling, thus, augured basic continuity in the us approach. But, the tribunal’s decision nonetheless put the us to complex and difficult choices. The challenges for the us stemmed partly from China’s mostly predictable reaction (a sharp rejection of the award and its legitimacy) and were compounded by the Philippines’ surprising backing away from its legal victory (following Rodrigo Duterte’s ascension to the presidency). Donald Trump’s unexpected win in the us presidential election generated further complications and more uncertainty, given the new us administration’s evident disdain for its predecessor, skepticism toward established approaches in many aspects of us foreign policy, and early moves that sent mixed signals and suggested a lack of understanding of, or concern with, international legal issues relevant in the scs.
For China, the decision was a stunning repudiation of many of its key legal arguments and much of its behavior in the disputed scs region. The tribunal’s ruling, thus, portended a continuation of the strongly negative stance that China had adopted toward the proceedings as well as the substance of the
For international law—a concededly more abstract “affected interest”—the arbitral decision constituted a noteworthy resolution of several contentious doctrinal issues, and a strong assertion of the reach and capacity of international legal rules and formal dispute resolution procedures. But, here too, the broader and longer-term implications are more ambiguous and ambivalent. The sweep and ambition of the panel’s decision came with risks that the apparent “victory” for international law would prove fleeting or illusory, and perhaps even perverse. China’s stern rejection, the Philippines’ striking downplaying, the evident limits to what the us is able or willing to do, and vulnerabilities inherent in international legal rules and institutions all contribute to serious doubts about whether the tribunal’s ruling will be, in the end, a win for international law and legal institutions.
ii The United States
For the us, the arbitration decision was remarkably in line with the central legal components of us policy toward the scs disputes and toward China’s approach to the issues at stake in those disputes. The principal law-related features of us policy date to the middle 1990s, and were framed partly in response to an earlier round of escalating tensions in the region.3 The version of the policy in place at the time of the Philippines-China arbitration had been set forth authoritatively by then-Secretary of State Hillary Clinton in 2010–11, during the early phases of the most recent phase of heightened frictions over scs issues.4
Major holdings in the Philippines-China arbitration decision are fully consistent with—and supportive of—four main elements of the us legal-political
These components of the us position align with Washington’s broader political objectives in East Asia. The us agenda in the region includes: maintaining regional peace and stability, reassuring allies and friends of the reliability of the us’s commitments, and maintaining a significant us role and presence, militarily, politically, and economically. On each of the elements, the arbitration decision’s congruence with us positions is clearest on issues over which the us and China disagree and which are also the issues of greatest regional political and strategic significance for the us.
First, the us has not taken a position on the question of who has sovereignty over disputed landforms in the scs. This stance has allowed the us to avoid “taking sides” on the issues that have been most fraught and most conflict-provoking in the region. It has enabled the us to focus on other legal issues relevant to us interests and systemic values (such as freedom of access, peace and security, and so on), and to deflect China’s arguments that the us has no legitimate role in the scs because it does not, and cannot, have any claim to sovereignty over any landforms or to coastal State rights over maritime zones.6 At the same time, the
The arbitration tribunal’s decision is consistent, and resonates, with the “agnosticism on sovereignty, but opposition to enclosure” element of us policy. The panel made clear that it purported not to make any decisions on territorial sovereignty, recognizing that such questions were beyond its purview because they lie outside the law of the sea and, thus, the tribunal’s jurisdiction as an unclos-based dispute resolution body. (The panel here rejected a version of this argument from China, which claimed that the tribunal lacked jurisdiction over the Philippines’ claims as a whole because—on Beijing’s account—none of Manila’s arguments about maritime zones and maritime rights could be resolved without straying into issues of sovereignty.)7
This could have meant that the panel would forego addressing the Philippines’ challenge to China’s expansive claims to maritime rights, and thus would have said little that aligned with the us’s opposition to China’s expansive jurisdictional claims. After all, the valuable rights over maritime zones that were the focus of the Philippines’ claims in the arbitration proceeding, and that are the principal source of economic and strategic value in the scs disputes more generally, derive from sovereignty over territory. But the panel took a different tack, accepting its lack of authority to address territorial sovereignty but nonetheless issuing extensive decisions on the merits rejecting Beijing’s claims of rights over the contested sea areas (essentially on the grounds that none of the landforms or maritime features, even if under Chinese sovereignty, could support the maritime zones and rights China asserted).
The tribunal’s distinction between territorial sovereignty issues that were beyond its reach and maritime rights questions that were largely within its
Second, the us has insisted on respect for rights of freedom of navigation and overflight in the scs. These principles, which the us has articulated and implemented primarily in response to challenges—clear, perceived, or potential—from China, serve and reflect major us interests in the scs region: protection of international trade in which the us has a large economic stake and in which its friends and allies in the region have an even greater stake, and freedom of operation for the us Navy in a strategically—as well as economically—vital region.
The legal principle of freedom of navigation (and overflight) has been so central that it has been a pillar of us arguments that China’s positions and behavior may more broadly challenge international law of the sea norms and, thus, regional order more generally.9 Equally tellingly, China has responded to the us’s and others’ concerns about possible Chinese impediments to free
Framing policy in terms of these legal principles has helped the us to defend its interests and assert its preferences while also portraying itself as protecting and providing international public goods, and avoiding taking sides with any of the disputants. Under the us’s interpretation of the relevant international legal principles, there is especially little tension between not taking sides among the disputants and insisting on freedoms of navigation and overflight: in the us view, many of the freedoms obtain regardless of whether a particular maritime area is a high seas area, an exclusive economic zone, or (for some us Navy activities) even a territorial sea of one State or another.11
Here, too, the Philippines-China arbitration decision resembled preexisting us policy positions. The tribunal could not address demarcation of potentially overlapping maritime zones because China’s legally permissible reservation to the provisions of unclos governing dispute resolution precluded the tribunal’s deciding those issues.12 China’s reservation covered maritime boundary delimitations, historic bays and titles, and military and law enforcement activities. On Beijing’s view, this, too, was enough to deny the arbitration body jurisdiction over the Philippines’ claims.
The tribunal, while accepting its lack of authority over demarcation, nonetheless, concluded that it had jurisdiction to decide that China did not enjoy the vast maritime rights it claimed in the scs. By determining that China definitively lacked rights (beyond those enjoyed by States generally) under the law of the sea over almost all of the disputed scs area, the tribunal’s decision supported the us’s position, and weakened China’s, on the issues of navigation
The tribunal’s decision rejected China’s position, and lined up with the us’s, on specific issues within the ambit of freedom of navigation and overflight. For example, in ruling that marine formations at which China recently had been undertaking massive land reclamation projects were mere low-tide elevations, the tribunal undercut key bases for Chinese claims of a right to exclude or limit the Philippines, the us, and others.15 As mere ltes, these formations could generate no territorial sea (much less, an eez) in which China could assert its long-standing (but dubious under international law) claim of a right to require permission or notification for innocent passage.16 Indeed, as mere ltes (except for those that are close enough to a larger land form that is itself the basis for a properly claimed maritime zone), such formations could generate no more than a minimal safety zone under unclos—a tiny space much smaller than the area covered by China’s newly constructed “islands.” Similarly, the panel’s controversial decision that none of the relevant landforms—not even Itu Aba/Taiping
By denying China such zone-based rights (and historic rights), the panel’s decision offered additional legal support for the us policy of freedom of navigation operations (fonops) near landforms and marine features claimed by China. fonops and reconnaissance missions have been a longstanding and recurring focus of relatively serious adverse encounters between the us and China, including the relatively early, and notorious, ep-3 incident of 2001 (in which a Chinese air force jet struck a us reconnaissance plane that it was shadowing) and the usns Impeccable Incident of 2009 (in which five Chinese vessels harassed and came dangerously close to a US surveillance ship).18 Such problematic encounters had recurred in the years since, and the us had increased high-profile fonops before the arbitral panel’s decision and amid China’s accelerated island-building program.19 The pattern continued after the arbitration award, including when a Chinese naval vessel snagged a drone
What changed in this regard with the arbitration decision was that the panel’s ruling undercut one cause for the us often to be ambiguous or muddled about the nature of some of its naval operations—that is, whether a particular operation by a us naval vessel is an innocent passage through a State’s territorial sea, an exercise of the residual high seas freedoms that all States enjoy in conducting noneconomic activity in China’s or some other State’s eez, an invited presence in the eez or territorial sea of the Philippines (or another claimant State), an exercise of law of the sea rights on the high seas, or a generic use of navigational freedom (without specifying the particular subtype). These questions of how to characterize us activities at times had become contentious on the us side: when a us Navy ship passed near Subi reef in 2015 (one of the landforms on which China had undertaken land reclamation of the type that the Philippines challenged in its arbitration claim), the suggestion that the operation was one of innocent passage stirred considerable controversy in us legal-policy circles, drawing criticism from those who saw it as conceding that some State (or, worse yet, China) had territorial sea rights over the area.21
The tribunal’s thoroughgoing rejection of China’s positions also buttressed the us’s long-articulated views on freedom of overflight and its related condemnation of any move by China to establish an Air Defense Identification Zone over the scs. In the immediate aftermath of the ruling, concerns grew that China might respond by declaring an adiz in the area. If Beijing had done
If China were to make statements or take actions that seem to challenge the us’s (or other States’) access to places where the Philippines-China arbitration panel has rejected China’s claims of maritime rights, the decision will help the us depict its own approach as less controversial and more consistent with established principles—a point that extends beyond freedom of navigation and oversight to international legal rules more broadly.
Third, the us has called on all parties to the scs disputes to respect international law, including the law of the sea, which includes unclos for the States that are parties to the convention and, for all States, customary international law that, in the us view, tracks the relevant substantive provisions of unclos. This is a broader and more fundamental position that parallels and underlies the us stance on freedom of navigation and overflight. The exhortation to adhere to international law has been a significant component of the us’s effort to cast itself as a supporter of the existing order and a provider of international public goods in the region and beyond. Often implicitly and sometimes explicitly, the us has claimed that it is pursuing not its own parochial preferences and narrow national interests, but rather is upholding international legal norms that are widely accepted and universally binding, and that generally support the international political status quo.23
The us’s opposition to China’s expansive claims over the region partly reflect conflicting great power interests and policy preferences, but the us’s position also is based in an argument that China’s claims are untenable under existing international legal norms. On the us’s view, to accept China’s claims in the scs is to acquiesce in China’s assertion of rights (or dominance) in defiance of
This central law-focused element of us policy has been most fully elaborated in response to the escalation of disputes, and what the us sees as China’s increasing assertiveness, in the scs in recent years.25 The most detailed articulation of the us view that China’s positions are legally unsustainable is a document issued in 2014 in the us State Department’s “Limits in the Seas” series.26 The us’s call on all parties to follow relevant international law, and specifically the law of the sea, entails disputing particular Chinese claims of rights over the scs and on broader points of international law that are relevant to such claims.
The us’s rejection of China’s physically or geographically expansive claims has included specific doctrinal points, most notably ones that dismiss the nine-dash line as lacking a legally defensible basis because none of China’s apparent arguments is consistent with established law, in that: (1) application of ordinary law of the sea rules basing maritime rights on sovereignty over landforms cannot give China rights to the entire area within the nine-dash line because (even if the landforms are all China’s) they are too small and scattered to generate the zones China claims; (2) China’s possible claim that the nine-dash line represents a maritime boundary fails, for some of the same reasons (that is, a lack of relevant land that might be under Chinese sovereignty), and because lawful delimitation of any potentially overlapping zones has not been undertaken (nor would a fair and lawful delimitation plausibly yield the nine-dash line); and (3) China’s claim of historic rights over the area inside the line is legally insupportable because historic rights under the law of the sea are limited narrowly to coast-adjacent zones and/or must meet a high standard
The us also has rejected China’s conceptually or jurisdictionally expansive claims of rights in maritime zones as inconsistent with existing international law. More specifically, in the US view: (1) rights of innocent passage (by the us Navy) through another State’s territorial sea do not require prior notification (much less permission) from the coastal State; (2) peaceful operations (by the us Navy) in another State’s eez are permissible because a coastal State’s eez rights do not include “security” rights, and because surveillance or reconnaissance is not maritime scientific research subject to regulation by the eez State; and (3) activities (by the us Navy) to which China objects do not violate the obligations of peaceful use of the high seas, or constitute abuse of law of the sea rights, or transgress broader international legal norms restricting the use of force or the threat of force against other States. With the principles understood in this way, China’s opposition to—and claims of a right to reject or regulate—various us Navy operations (as well as much civilian maritime and airborne traffic) are legally incorrect, and Chinese activities (ranging from harassment of us planes and ships, to warning off us forces that come close to Chinese-controlled—and newly expanded—marine formations, to asserting rights to require notification or permission of foreign ships and planes operating in marine and air spaces over which China claims some form of jurisdiction) lack legal basis—while also being adverse to us political and security interests.
Here, again, the Philippines-China arbitration panel’s conclusions align well with established us positions. The content of relevant international law as reflected or determined in the arbitral decision is consistent with many of the understandings of specific law of the sea rules previously embraced by the us, generally and in opposition to China and its very different views. In declaring that the nine-dash line has no independent significance and entails no rights—including historic rights—beyond those that might be conferred upon China by operation of the ordinary, geography-driven rules of unclos for deriving maritime rights from sovereignty over landforms, the tribunal adopted a position that is close to preexisting us legal analyses.28 When the panel
After the tribunal’s award, the us’s broad call for all the scs disputants to respect international law morphs easily into a call on China to respect the panel’s decision, as a formal, procedurally proper, and substantively authoritative decision on some of the major legal issues in the scs disputes. The decision strengthens the us’s rhetorical or political hand, relative to China’s, in obvious ways. China is now not just rejecting us views (shared broadly but not universally by other States). China now is rejecting what the us can portray (and has characterized) as a legally binding decision by a neutral and authoritative tribunal (one that, to be sure, faces criticisms—likely not very persuasive ones—from Chinese sources for procedural illegitimacy and bias).30 The more China stridently rejects the decision and the tribunal’s legitimacy, and the more China acts in ways that appear to flout the tribunal’s ruling or international legal rules more broadly, the more the us can align arguments of legal principle with the us’s interests in opposing China’s assertiveness and preserving the normative and political status quo.
There is, of course, a glaring weakness in the us position: the us has not joined unclos and thus is not itself bound by treaty to the rules that it insists
There is another, more substantive aspect of the decision that is problematic for us aims and interests, and thus strains somewhat the alignment between us agendas and a tribunal-supporting “pro-legality” stance: the very high standard for unclos Article 121(3) islands capable of generating eezs that the tribunal formulated to disqualify all scs landforms, including Taiping Island/Itu Aba. This standard is one that the us will not welcome in other contexts because its application could pose significant problems for maritime zones claimed by the us or its friends and allies.32 Resistance by the us or others to the tribunal’s interpretation of Article 121(3) will create, at least for a time, uncertainty about maritime zones derived from small landforms, and thus will muddy and complicate the otherwise clean and simple call by the us for China and others to respect the tribunal’s ruling and follow international law more generally.
Fourth, the us has emphasized all parties’ obligations to address their disputes peacefully and has urged all parties to accept multilateral and/or formal dispute resolution. Given the general international legal obligation of States to resolve disputes peacefully and to refrain from force or threats of force,33 this point is something of a corollary to the us position of calling on all parties to respect
The Philippines-China arbitration case resonates with this aspect of us policy as well. The decision is, after all, the product of a highly formal dispute resolution process—one which in this case the us specifically supported. The us’s relatively well-established policy of favoring multilateral and formal approaches to the scs disputes had laid a felicitous foundation for the us to take a dim view of China’s recalcitrance toward the Philippines’ initiation and pursuit of arbitration. China’s approach to the proceedings highlighted the procedural aspect and thus reinforces this aspect of the us position: China refused to participate even at the jurisdictional phase—a choice that was controversial among Chinese international law experts and within the Chinese government. This refusal invited unflattering comparisons to what generally has been a weak point in us claims to be a strong supporter of international law: in the case that Nicaragua brought against the us in the International Court of Justice in the 1980s, the us had refused to participate in the merits phase (and subsequently withdrew its general submission to icj jurisdiction), but the us at least had appeared to contest jurisdiction—an approach that some in China and elsewhere had urged Beijing to take in the scs arbitration case.35
With the panel’s judgment issued, us support for resort to a formal legal mechanism for peaceful dispute resolution could merge into calls for China to respect a decision that is the product of such a process. The us response to the decision tellingly emphasized procedure, more than substance.36 This distinction is politically and legally significant. As just noted, China was on politically weaker ground on legal procedure than on legal substance. Rather than insist that the tribunal’s decision is correct on the merits and invoking that as a basis for calling on China to accept as lawful a decision that it deemed unacceptable on the merits, us official statements primarily called on China to respect the outcome of a process to which China had, in the us view, consented (and that did not have the fatal jurisdictional flaws that China has asserted). For the us, this proceduralist approach had the perhaps-modest virtues of: deflecting slightly a confrontation with China over the substance of the ruling; avoiding a clearer us embrace of aspects of the ruling that the us might not welcome (such as the decision on Article 121(3) islands); and reducing, perhaps, the extent to which full Chinese compliance with the award would be the measure of success for us policy.
Here, too, however, the tribunal’s ruling does pose some challenges for us positions and policies. Urging respect for the decision in effect calls upon China to accept an adverse outcome from a dispute resolution process to which the us will not subject itself: China’s accession to the unclos treaty-based dispute resolution provision provided the only basis for the tribunal’s authority, given the absence of China’s specific consent to the case being heard. Chinese (and other critics) have made much of the us’s approach to the icj case that Nicaragua brought against the us, as well as the us’s absence from the unclos regime.37 Legally accurate distinctions between the us’s participating in the jurisdictional phase and refusing to participate in the merits phase, on the one hand, and China’s refusal to participate in either phase, on the other hand, have only limited political traction. This is all the more so, given that the Philippines-China arbitration panel, unlike the icj in the us-Nicaragua case,
As much of the foregoing suggests, the us agenda and interests related to the scs face significant challenges and uncertainty despite the arbitration decision’s apparent vindication of—or, at least, alignment with—us positions. There are several reasons for this. First, us calls upon China to obey international law as interpreted by the tribunal invite familiar charges from China of us hypocrisy or double-standards, invoking the us’s failure to accede to unclos, unwillingness to subject itself to binding arbitration akin to the process in the Philippines-China case, or insistence on what (in China’s view) are self-serving interpretations of international law that give a principal potential adversary a seemingly free hand (particularly in military operations in the scs) and imperil China’s own core interests.
Second, the relatively close alignment between the tribunal’s decision and established us positions encourages China to indulge its already-prominent suspicions (or, at least, rhetorical claims) about us behavior and goals. These include notions that: Washington is the “black hand” behind Manila’s successful legal gambit (and possible imitation by other claimants), and is emboldening weaker regional powers to challenge China in China’s pursuit of what it sees as its natural and proper place as the preeminent regional power; and international law and legal institutions continue to reflect the interests and preferences of the us and other status quo powers, to the detriment of China’s legitimate rights and interests as a rising power.39
Third, the tribunal’s decision—by making specific rulings that demand significant changes in China’s behavior and reject long-held Chinese claims about legal rights—increases the complexity for the us of neither pushing too much nor pushing too little for China to follow international legal rules. With the tribunal’s decision seemingly ineluctably part of the “international law” that Washington generally calls on Beijing to respect, and with China’s acceptance and compliance not forthcoming, the us’s choices become more pointed and difficult. If the us fails to press the norms of international law that the us and the tribunal share, or ostensibly presses hard but lacks the will or the ability to induce some degree of compliance by a recalcitrant China, the us could face a version of the “abandonment” problem that is a characteristic risk in alliance relationships.40 Narrowly, the us’s long-running, purportedly robust commitment to international law as a means for addressing the scs disputes could be shown to be relatively hollow. This could deepen broader concerns about the us among its allies and partners in the region. As with critical accounts of the Obama-era “pivot” or “rebalance” to Asia, so too with the us commitment to international law: the us’s formal and informal security partners in the East Asian region (including some that are not scs claimants, most significantly Japan and Korea) may at least incrementally lose confidence in the us’s resolve and commitment to their security and the international rules (both formal legal ones and less formal political ones) that help to safeguard the status quo. This, in turn, could weaken us influence and the us’s ability to pursue its aims (including maintaining peace and stability) in the region.
On the other, somewhat less sharp horn of the dilemma, the tribunal’s decision also may increase the risk of “entrapment” that the us faces in relations with China’s rival claimants in the scs. Although there is much posturing, or paranoia, in some Chinese sources’ claims that Washington is responsible for the Philippines’—and Vietnam’s—temerity in opposing China, an especially ardent (and not obviously hollow) us push to implement the terms of a panel decision—and international legal norms—that so clearly reject China’s position could invite over-interpretation by China’s neighbors. It could encourage regional States to become more assertive and intransigent in dealing with
The behavior of regional States following the arbitral panel’s ruling suggests that serious risks of entrapment are not imminent. With the Aquino government, which had brought the arbitration case, giving way to the very different Duterte government in the Philippines on the eve of the tribunal’s decision, the party that had won the resounding legal victory in the Hague immediately opted for caution, endorsing restraint, sobriety, peace, stability, and peaceful resolution and management, and expressing a willingness to negotiate—alongside its initial celebration of a legal victory.41 Shortly thereafter, Duterte announced that the decision would “take the back seat,” and traveled to Beijing to engage in bilateral negotiations, which has long been China’s preferred mode for addressing the scs disputes, and which yielded modest benefits for Manila in regaining access to parts of the disputed maritime region.42
To some extent, the approach taken by the Philippines under Duterte may reflect differences in leaders’ preferences. In the Philippines, as elsewhere, it matters who is president. But Manila’s post-ruling approach, to a great extent, also may reflect a sober realism about what is possible following so sweeping a decision and in the face of China’s stern rejection of that decision. Negotiation in light of the ruling (rather than simple, and in this case surely futile, insistence on implementation of the award) is an outcome that is relatively common in international practices that are shaped by the parties’ political calculations and power. It is far from unusual even in systems with much more robust enforcement mechanisms than an ad hoc international arbitration tribunal constituted under the dispute resolution provisions of unclos.
Other interested States, including most notably Vietnam, took a tempered approach in response to the arbitral panel’s decision, generally praising the
Taiwan’s reaction was especially complicated and ambivalent, due to unique features of Taiwan’s situation, including: its awkward partial alignment with China on some issues (including claims of broad rights rooted in Chinese historical claims to an area within a dashed line that dated to the pre-prc era); its long-standing alignment with the us on many regional security and related legal issues; its objection to the tribunal’s refusal to accept a formal submission by Taiwan (because Taiwan has been prevented from joining unclos), indication that its consideration of Taiwan’s materials was contingent on the parties’ lack of objection, and reference to Taiwan as the “Taiwan authority of China”; and its strong objection to the tribunal’s determination that the criteria for an eez-generating island were not met by Taiping Island / Itu Aba—the largest naturally occurring landform in the scs and the only significant feature under Taiwan’s control.44
Although the near-term risks of entrapment thus seem small for the us, they cannot be discounted entirely. Although the scs disputes remained relatively quiet more than a year after the arbitration decision, the panel’s ruling did purport to clarify and rearrange economically and strategically valuable legal rights in a region that has been prone to sometimes years-long—but quickly
The risks of the abandonment dynamic might seem relatively remote as well. Indeed, with the Philippines under Duterte eschewing efforts to implement the award, and other claimant States showing little appetite for filing follow-on arbitration claims or adopting other similarly assertive stances, it would seem that the absence of a strong us push for China to comply with the ruling or accept the validity of its conclusions would not be characterized plausibly as “abandoning” allies or partners who were seeking a more proactive approach. Indeed, it would be problematic for the us to be more vigorous than the Philippines in asserting the Philippines’ legal rights. Yet, the situation may not prove to be so simple for the us in the longer run. The us commitment to legal rules and interpretations of those rules that align with us interests, to protect the interests of regional States that are rival claimants of China’s and allies or friends of the us, and to reject China’s views of relevant international law, are deeper and broader than the tribunal’s decision. us actions or statements that back away from prior opposition to China’s land reclamation projects and exclusion of Filipino vessels from waters near Scarborough Shoal or other areas long open to the Philippines’ fishing fleet, or that begin to acquiesce in Chinese forces’ warning off or harassing us ships, and so on, easily could trigger law-of-the-sea-related concerns about abandonment. Indeed, the seemingly rapid decline in the arbitration decision’s salience may have deprived the us of a relatively cheap and easy way of signaling “non-abandonment” by emphasizing support for the decision in principle while eschewing robust efforts in practice that all interested parties would have recognized would be dangerous and possibly counterproductive.
These complexities and challenges would exist even in a context where the us approach remains stable, unaffected by changes akin to those that the Philippines’ stance underwent with the succession from Aquino to Duterte. Prospects for continuity in us policy on issues of international law and the scs are uncertain, however. At a minimum, us positions will adapt to changes in the relevant legal, political, and policy environments. Examples noted above include the Philippines-China arbitration panel’s decision itself and the change of governments in Manila. Other examples, addressed in more detail below, include China’s reaction to the decision and China’s broader—and possibly rapidly evolving—policy choices. But the most obvious and direct cause of uncertainty in us policy is the outcome of the 2016 us presidential election. Although the us approach to scs issues has roots in the Clinton administration, in its contemporary form, it is largely the product of the Obama administration and its response to escalating tensions and a growing number of incidents in the scs (and the East China Sea as well). The prospect of a new president inevitably creates some unpredictability. But if Hillary Clinton had won the election, a high degree of continuity would have been likely. As Secretary of State, she was, after all, the principal framer of the Obama administration’s principles concerning legal and political issues the scs disputes, and the “pivot” or “rebalance” to Asia more generally. Notwithstanding a late-found skepticism toward the Trans-Pacific Partnership trade agreement, her policies on the scs and broadly related legal and policy issues were expected to be in line with her predecessor’s, albeit with a possible proclivity toward being somewhat “tougher” on China (although probably not as much tougher as critical prc observers appeared to expect).
Donald Trump’s electoral victory, a rocky transition period, and a tumultuous early presidency have created much uncertainty. Trump’s strongly anti-China campaign rhetoric suggested that his administration might take a harder line on scs issues. Although candidate Trump criticized China mostly for its economic behavior, a narrative that portrayed China as a bully and a scofflaw on territorial disputes and law of the sea issues seemed to be complementary. Trump’s repeated pledges to “rebuild” us military strength seemed to imply a more assertive stance toward China—the most salient rival in scenarios for which a larger us Navy would be needed. President-elect Trump seemed to signal a tough line toward China on security-related matters with significant international legal aspects when he suggested that the us might not adhere to its long-standing “one China policy” concerning Taiwan, and when a Trump tweet linked continued support for that policy to China’s being less recalcitrant on the scs (with the island-building projects a particular focus) and more cooperative on economic issues. The line of confrontational tweets continued in response to the December 2017 drone seizure: “China steals us
On the other hand, when candidate Trump suggested that even treaty allies such as Japan and Korea might have to rely more on themselves for their own security (amid broader talk of an “America first” foreign policy with a focus on narrowly defined national interests), he raised greater doubts about the us’s future commitments to the security of other friendly or informally allied States that were claimants in the scs disputes and, in turn, long-standing us positions on international legal issues that were generally favorable to those States’ interests. Subsequent assurances by leaders of Trump’s national security team partly—but only partly—assuaged those concerns. As president, Trump soon abandoned his flirtation with abandoning the one China policy and backed
The transition from Obama to Trump included other sources of uncertainty as well. Tough words on China policy from candidates of the out-of-power party often fade—sometimes quickly—once such a candidate takes office. Trump’s apparent ignorance of foreign and security policy and international law, disdain for Obama-era and establishment approaches, and very thinly staffed administration—along with conflicting signals and impulses of the campaign, transition and early incumbency—have made his administration’s positions on scs issues more difficult to assess, both generally and on more narrow and specialized questions such as the Philippines-China tribunal’s decisions on doctrinal issues and implementation of the panel’s award.
The arbitration panel’s adverse and unanimous decision triggered a predictably negative reaction from Beijing. China’s choices in addressing the challenges it
Near the lower end of the range of possible responses are arguments that the tribunal’s decision are inconsistent with a proper understanding of international law and therefore can be lawfully disregarded. In the words of China’s foreign minister, the decision was “just a piece of waste paper,” and was merely a “so-called award.”48 In Beijing’s view, China had been justified in its “four noes” approach to the arbitration: no participation, no acceptance, no recognition, and no enforcement. Drawing in part on long-held positions and on arguments China had made at earlier phases in the arbitration, official Chinese sources launched a sweeping and multipronged denunciation.
On the Chinese account, the tribunal lacked jurisdiction, for several reasons: Deciding the issues presented by the Philippines’ claims concerning rights in maritime zones inevitably implicated issues of territorial sovereignty over the disputed landforms (because sovereignty over landforms is the basis for rights over maritime areas under the principle—pervasive in unclos rules—that “the land dominates the sea”), but questions of territorial sovereignty are beyond the scope of unclos and thus beyond the jurisdiction of the panel as an ad hoc tribunal constituted under unclos.49 Deciding on the Philippines’ claims also inescapably entailed ruling on questions of maritime zone delimitation (given the overlapping claims that the Philippines, China, and others could assert based on their purported sovereignty over disputed landforms) and Chinese military and law enforcement activities (some of which would
On the Chinese account, the panel’s procedures were flawed, in a few overlapping ways: The tribunal’s handling of the decision on jurisdiction (such that the panel determined its jurisdiction over half the claims jointly with its decision on the merits) was suspect. The panel failed to fulfill its obligation to give adequate attention to China’s legal arguments on key issues—a duty that the panel had notwithstanding China’s refusal to participate in the proceedings, and a duty that the panel could have fulfilled, given that China provided an extensive, albeit not formally submitted, brief detailing its positions. The decision lacked adequate basis.52
In China’s assessment, the arbitration tribunal also got the substantive law wrong when it rejected China’s views—many of them long-standing—on crucial issues. These included: the existence of China’s customary international law-based historic rights that survived the advent of unlcos;53 the status of
Some statements from official and orthodox Chinese sources moved from narrowly legal responses toward the more political ones that comprise a zone farther along the spectrum of challenging or provocative responses. They suggested that the panel—although it included prominent and respected international experts—was biased and unfair to China. This was because: China had no role in selecting the members (a consequence of China’s refusal to participate in any part of the proceedings); or the members were from European States that did not represent the full international legal community (or include adherents to interpretations of international law favored by China); or a “right-wing” Japanese jurist—someone from a country unfriendly to China and a party to disputes with China similar to those raised by the Philippines—had played a key role in determining the panel’s composition; or the jurists were improperly influenced by the other side.56
Farther along the spectrum of responses and shading further from legal to political arguments, Chinese sources blamed the us for encouraging the
Moving beyond specific reactions to the arbitral decision, China can, and does, continue its familiar assertions that the Philippines, Vietnam, and other rival claimants have no right to occupy what Beijing claims is Chinese sovereign territory in the scs area or to exercise jurisdiction or undertake various activities in the maritime areas within the nine-dash line over which China enjoys unclos-based and broader historic rights. So, too, China can, and does, continue to insist on the impermissibility of us Navy activities, including fonops near Chinese-controlled islands and maritime features and a variety of activities by surveillance vessels and armed ships in and around the scs.
Both before and after the decision, China often has foregone active and potentially provocative or escalatory measures. Many operations by us Navy ships and aircraft go unchallenged. Duterte’s post-ruling negotiations with Beijing resulted in the Philippines maintaining and expanding access—particularly for fishing—in areas that the tribunal’s decision found to be part of the Philippines’ eez but that China sees as properly under its jurisdiction. China has only rarely sought to expel rival claimant States’ forces from contested islands and maritime features. China has tolerated, and at times cooperated in, the exploitation of economic resources in what China claims to be its eez and continental shelf or areas over which it holds historic rights.58 Such acquiescence and cooperation are, of course, fully consistent with China’s claims of legal rights (as is the Philippines’ non-pursuit of enforcement of the arbitration award). After all, legal rights are, fundamentally, options that the rights-holding State may choose not to exercise or to exercise only selectively.
On the other hand, and still farther along the spectrum of assertive actions, China has, over the years, taken status quo altering steps that enforce or implement its claimed rights, ranging from violently expelling Vietnamese forces from occupied reefs, to deploying oil exploration platforms in contested areas, to stringing a net across the entrance to Philippines-controlled
The panel’s sweeping rejection of China’s positions and China’s sharp rejection of the decision raised concerns that Beijing might move farther along the spectrum of escalating, stability-threatening actions. China could have taken a more unyielding approach to exclude the Philippines (and others) from contested areas addressed in the tribunal’s decision. China could have accelerated the already-substantial and recently-rapid island-building on formations covered by the arbitral award or in other Chinese-controlled areas. Beijing could have proceeded with a long-rumored and much-discussed declaration of an Air Defense Identification Zone over much of the scs. Such a move would have reprised and extended a similar move in the East China Sea that had been a major step in the escalating tensions in the region, and that had prompted significant pushback from the us. Some expressed concern (with varying degrees of plausibility) that China might occupy (and perhaps begin land reclamation) on sensitive landforms that had been controlled by the Philippines, particularly Scarborough Shoal (where China’s deployment of a net to block access had raised the stakes and the temperature in the Philippines-China dispute) or Second Thomas Shoal (where a handful of Filipino servicemen are stationed precariously on a long-grounded ship).59 So far, Beijing has foregone such measures.
Although China’s statements of positions and patterns of behavior since the arbitration panel’s decision are, thus, not new and in some respects are very long-standing, the tribunal’s ruling has altered their meaning and implications
China might take the outcome of the arbitration and the advent of the newly hard or risky choices it faces as reasons to forego a “double or nothing bet,” and adopt a more accommodating approach. Beijing can reinvigorate efforts to seek cooperation on concrete issues (such as resource management and development) with the Philippines and with other rival claimant States.
Here, features of international law, including ones manifested in the tribunal’s decision, can help facilitate a politically desired and potentially desirable solution. China could reinvigorate its long-favored position on “setting aside sovereignty” which at least implicitly recognizes that legal rights are options. A similar perspective is inherent in the Philippines’ willingness to put the award in the backseat and negotiate with Beijing (although recently renewed
Other aspects of uncertainty in the post-arbitral-award environment may give China additional reasons for restraint. Other things being equal, harsher measures from China are likely to increase tensions with the Philippines and other claimant States and to prompt stronger measures from the us. But, again, this aspect of the political implications of the decision is far from definite. Except in the case of Chinese reactions at the extreme ends of the spectrum described above (and perhaps even there), there will be uncertainty (even after some of the confusion sewn by the transition to the Trump presidency abates) about the us’s likely response to various moves that China, or others, might make. And, of course, moves by either side are not a one-off. China, other claimants, and the us will react iteratively to one another’s moves.
iv International Law
The Philippines-China arbitration panel’s decision—by determining a clear winner (the Philippines and, prospectively, other Southeast Asian claimants) and a clear loser (China), rejecting many of China’s claims and long-asserted positions on law of the sea doctrines, condemning many of China’s actions in the region, ordering significant behavioral changes by China, and reaching conclusions on the many and varied claims raised by the Philippines across many doctrinal issues—is, at least on the surface, a bold proclamation of international law’s reach, power, and potential utility in addressing conflict-generating controversies in international politics. This bold outcome diverged from expectations in some quarters that the panel might determine that it had no jurisdiction over especially tough or controversial claims (including some or all of the eight of the original fifteen claims on which it initially deferred a decision concerning jurisdiction), or might decide it had insufficient information to rule on some issues, or might say that China’s nine-dash line claim was ambiguous in its legal nature and potentially acceptable under some but not
But with such boldness come obvious and significant risks for international law and legal institutions—including ones that extend beyond those directly involved in the Philippines-China scs arbitration. Although the panel’s decision is understandably, and likely correctly, seen as an important statement on major issues in the law of the sea, there are reasons to be somewhat cautious in proclaiming that it has definitively settled some major and heretofore uncertain doctrinal issues. Under international law, the panel’s decision is, of course, “final” in the sense that it cannot be appealed. But it is less than “final” in that it has only persuasive, rather than precedential, effect in other international tribunals—the International Court of Justice, the International Tribunal for the Law of the Sea, other ad hoc unclos tribunals, and perhaps others—that can address law of the sea claims.62
To be sure, this is a vulnerability of decisions by international tribunals generally, but it may be especially prominent in this case, for several reasons. First, although the presence of leading experts on the panel gives the decision considerable stature, the status of the arbitral body—an ad hoc entity rather than the icj, itlos or the Permanent Court of Arbitration in the Hague—is a potential weakness.63 Second, some of the panel’s rulings on legal issues—such
More fundamentally, the apparent win for international law faces the challenge that the tribunal all too evidently lacks enforcement power. This obvious and brute fact is what makes China’s calculus of risks and interests and the us’s calibration of its commitment to supporting the decision, and the underlying process, so important and complex. If, in the end, reality on the ground (or, more precisely, on the water) comes substantially into line with the arbitration decision, that will mark at least a partial victory for international law. If an important reason for such an outcome is China’s recognition of the reputational costs of openly flouting international law (and doing so in ways that deeply alarm neighboring States about China’s intentions more generally), or the us’s—and others’—commitment to backing the decision (because of the direct and indirect benefits that flow from adherence to international legal rules), then it will have been a more significant success for international law and the peaceful resolution of disputes by legal procedures.
If, on the other hand, China successfully resists and rejects implementation of the decision, and the us, the Philippines and others are opposed to
University of Pennsylvania and Foreign Policy Research Institute.
pca Case No. 2013-19, South China Sea Arbitration between the Republic of the Philippines and the People’s Republic of China, Award, 12 July 2016 (“South China Sea Arbitration Award (Merits)”).
us Department of State, Daily Press Briefing, 10 May 1995, available at: available at: http://dosfan.lib.uic.edu/ERC/briefing/daily_briefings/1995/9505/950510db.html.
See, for example, Hillary Clinton Statement on the South China Sea, 22 July 2011, available at: https://2009-2017.state.gov/secretary/20092013clinton/rm/2011/07/168989.htm.
Remarks at Press Availability (Hillary Clinton), 23 July 2010, available at: http://china.usc.edu/remarks-press-availability-secretary-clinton-july-23-2010.
These positions, which are addressed sequentially in this section, are articulated in many official us sources, including those cited in the immediately preceding two footnotes.
People’s Republic of China Ministry of Foreign Affairs, The Issue of the South China Sea (June 2000) § 3; “China Opposes Attempts to Internationalize South China Sea Disputes,” Xinhua, 28 September 2011, available at: http://news.xinhuanet.com/english2010/china/2011-09/28/c_131165615.htm; “Ministry of Defense: Outside Intervention Not Welcome,” Xinhua, 31 July 2012, available at: http://news.xinhuanet.com/english/china/2012-07/31/c_123503297.htm; Yang Jiechi Gives Interview to State Media on the So-Called Award by the Arbitral Tribunal for the South China Sea Arbitration, 16 July 2016, available at: http://www.chinaembassy.org/eng/zt/abc123/t1382060.htm (“certain countries outside the region, driven by their own agenda, have frequently intervened in the South China Sea").
pca Case No. 2013-19, South China Sea Arbitration between the Republic of the Philippines and the People’s Republic of China, Award on Jurisdiction and Admissibility, 29 October 2015 (“South China Sea Arbitration Award (Jurisdiction and Admissibility)”) ¶¶ 151–154.
On the centrality of sovereignty to Chinese conceptions of international law, see generally, Xue Hanqin, Chinese Perspectives on International Law: History, Culture, and International Law (2012), pp. 68–97; Wang Tieya, International Law in China: Historical and Contemporary Perspectives, Receuil des cours, 221 (1990), Chapter 4. In relation to China’s views on the law of the sea, see Jacques deLisle, From Accepting to Challenging the International Law of the Sea: China and the South China Sea Disputes, in Chang-fa Lo, Nigel N.T. Li and Tsai-yu Lin, (eds.), Legal Thoughts between the East and the West in the Multilevel Legal Order (2016), pp. 256–260.
See, for example, John G. Odom, South China Sea and Freedom of Navigation, Diplomat, 9 March 2006, available at: http://thediplomat.com/2016/03/south-china-sea-and-freedom-of-navigation/; Lynn Kuok, The u.s. fon Program in the South China Sea: A Lawful and Necessary Response to China’s Strategic Ambiguity, Brookings Center for East Asia Policy Studies East Asia Policy Paper No. 9 (June 2016).
See, for example, Peh Shing Huei, China Will Always Ensure Freedom of Navigation in South China Sea, Xi Says, South China Morning Post, 7 November 2015; China Values South China Sea Navigation Freedom More than Anyone: Spokesperson, Xinhua, 2 March 2017, available at: http://news.xinhuanet.com/english/2017-03/02/c_136097306.htm.
For descriptions of u.s. positions, see Chapter 10: Air, Sea and Space Law, Operational Law Handbook (2015), pp. 173–177; James W. Houck and Nicole M. Anderson, The United States, China, and Freedom of Navigation in the South China Sea, 13(2) Washington University Global Studies Law Review (2014), pp. 443–447; Raul (Pete) Pedrozo, Coastal State Jurisdiction over Marine Data Collection in the Exclusive Economic Zone: u.s. Views in Peter Dutton, (Ed.), Military Activities in the eez (2010), pp. 23–36.
See South China Sea Arbitration Award (Jurisdiction and Admissibility) ¶¶ 155–157; China, Declaration under Article 298, unclos, 25 August 2006, http://www.un.org/depts/los/convention_agreements/convention_declarations.htm#China; United Nations Convention on the Law of the Sea, art. 298 (optional exceptions to applicability of Part xv, Section 2, concerning compulsory dispute resolution procedures).
South China Sea Arbitration Award (Merits) §§ v–vii.
For a discussion of these Chinese arguments, see Jacques deLisle, Troubled Waters: China’s Claims and the South China Sea, 56 (4) Orbis (2012), pp. 632–635; Jacques deLisle, China’s Territorial and Maritime Disputes in the South and East China Seas, in Jacques deLisle and Avery Goldstein, (eds.) China’s Global Engagement: Cooperation, Competition and Influence in the 21st Century (2017), pp. 269–270; People’s Republic of China Ministry of Foreign Affairs, China Adheres to the Position of Settling through Negotiation the Relevant Disputes Between China and the Philippines in the South China Sea, 13 July 2016, ¶ 139, http://www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1380615.shtml (“when exercising freedom of navigation and overflight in the South China Sea, relevant parties shall fully respect the sovereignty and security interests of coastal States”).
South China Sea Arbitration Award (Merits) §vi.b.
Law of the People’s Republic of China on the Territorial Sea and the Contiguous Zone (1992), arts. 6, 12; China, Declaration upon Ratification of unclos, 7 June 1996, available at: http://www.un.org/depts/los/convention_agreements/convention_declarations.htm#China.
South China Sea Arbitration Award (Merits) §vi.b; Law of the People’s Republic on the Exclusive Economic Zone and Continental Shelf (1998) (“eez Law”), art. 11; Surveying and Mapping Law of the People’s Republic of China, art. 7 (1992, 2002); China Demands u.s. Navy End Surveillance Missions, Sina.com, 12 March 2009, available at: http://english.sina.com/china/2009/0311/225194.html (Defense Ministry Spokesperson Huang Xueping).
usns—United States Naval Ships—are auxiliary vessels, staffed by civilians, and charged with a variety of missions, including surveillance. Raul Pedrozo, Close Encounters at Sea: The usns Impeccable Incident, 62 (3) u.s. Naval War College Review (2009), pp. 101– 111; Ji Guoxing, The Legality of the Impeccable Incident, 5 China Security (2009), pp. 16–21; Eric Donnelly, The United States- China ep-3 Incident: Legality and Realpolitik, 9 (1) Journal of Conflict and Security (2004), pp. 25–42; W. Allan Edmiston iii, Showdown in the South China Sea, 16 (2) Emory International Law Review (2002), pp. 639–688.
See, for example, Remarks by us Secretary of Defense Ashton Carter, iiss Shangrila Dialogue: A Regional Security Architecture Where Everyone Rises, 30 May 2015, available at: http://www.defense.gov/News/Speeches/S[eech-View/Article/606676/iiss-shangri-la-dialogue-a-regional-security-architecture-where-everyone-rises; Sam LaGrone, u.s. Destroyer Challenges More Chinese South China Sea Claims in New Freedom of Navigation Operationusni News, 30 January 2016, available at: http://news.usni.org/2016/01/30/u-s-destroyerchallenges-more-chinese-south-china-sea-claims-in-new-freedom-of-navigation-operation%3B; Full Statement of us Dept of Defense on uss Curtis Wilbur’s fonop Past Triton Island, South China Sea Research, 31 January 2016, https://seasresearch.wordpress.com/2016/01/31/full-statement-of-us-dept-defense-on-uss-curtis-wilburs-fonop-past-triton-island/; Idrees Ali and Matt Spetalnick, “u.s. Warship Challenges China’s Claims in South China Sea,” Reuters, October 21, 2016, http://www.reuters.com/article/us-southchinasea-usa-exclusive-idUSKCN12L1O9.
Terri Moon Cronk, “Chinese Seize u.s. Navy Underwater Drone in South China Sea,” DoD News, 16 December 2016, available at: https://www.defense.gov/News/Article/Article/1032823/chinese-seize-us-navy-underwater-drone-in-south-china-sea; Helene Cooper, u.s. Demands Return of Drone Seized by Chinese Warship, New York Times, 16 December 2016.
Bonnie S. Glaser and Peter A. Dutton, The u.s. Navy’s Freedom of Navigation Operation around Subi Reef: Deciphering u.s. Signaling, National Interest, 6 November 2015, available at: http://nationalinterest.org/feature/theusnavy%E2%80%99sfreedomnavigationoperationaroundsubireef14272; Raul “Pete” Pedrozo and James Kraska, Can’t Anybody Play This Game? us fon Operations and Law of the Sea, 17 November 2015, Lawfare Blog, available at: https://www.lawfareblog.com/cant-anybody-play-game-us-fon-operations-and-law-sea; Joseph Bosco, us fonops Actually Conceded Maritime Rights to China, Diplomat,8 March 2017, available at: http://thediplomat.com/2017/03/usfonopsactuallyconcededmaritimerightstochina/.
Secretary Hagel Issues Statement on East China Sea Air Defense Identification Zone, 23 November 2013, available at: http://archive.defense.gov/news/newsarticle.aspx?id=121223; Secretary of State John Kerry, Statement on East China Sea Air Defense Identification Zone, 23 November 2013, available at: https://2009-2017.state.gov/secretary/remarks/2013/11/218013.htm; see also Jaemin Lee, China’s Declaration of an Air Defense Identification Zone in the East China Sea: Implications for Public International Law, 18 (17) asil Insights, 19 August 2014, available at: https://www.asil.org/insights/volume/18/issue/17/china%E2%80%99s-declaration-air-defense-identification-zone-east-china-sea#_ednref2.
Jacques deLisle, International Law in the Obama Administration’s Pivot to Asia: The China Seas Disputes, the Trans-Pacific Partnership, Rivalry with the prc, and Status Quo Legal Norms in u.s. Foreign Policy, 48 (1) Case Western Reserve Journal of International Law (2016), pp. 143–161.
See generally, deLisle, From Accepting to Challenging the International Law of the Sea, supra note 8; deLisle, China’s Territorial and Maritime Disputes, supra note 14 pp. 265–272; Zachary M. Hosford and Ely Ratner, The Challenge of Chinese Revisionism, Center for a New American Security East and South China Seas Bulletin 8 (1 February 2013), available at: http://www.dragon-report.com/Dragon_Report/home/home_files/The%20Challenge%20of%20Chinese%20Revisionism.pdf.
For assessments of China’s “new assertiveness,” see Alistair Iain Johnston, How New and Assertive is China’s New Assertiveness?37 (1) International Security (2013), pp. 7–48; Michael Yahuda, China’s New Assertiveness in the South China Sea, 22 (81) Journal of Contemporary China(2013), pp. 446–459; S. 659 South China Sea and East China Sea Sanctions Act of 2017, 115th Cong. 1st Sess. (15 March 2017), sec. 2 (“Findings”).
United States Department of State, Bureau of Oceans and International Environmental and Scientific Affairs, Limits in the Seas No. 143, China: Maritime Claims in the South China Sea (5 December 2014), available at: http://www.state.gov/documents/organization/234936.pdf.
For a more detailed examination of the issues discussed in this paragraph and the following paragraph, see deLisle, From Accepting to Challenging the International Law of the Sea, supra note 8, pp. 260–271; deLisle, China’s Territorial and Maritime Disputes in the South and East China Seas, supra note 24, pp. 265–272; deLisle, Troubled Waters, supra note 14, pp. 620–635.
South China Sea Arbitration Award (Merits) §v. On us views, see, for example, Remarks at Press Availability (Hillary Clinton), supra note 4. (“Consistent with customary international law, legitimate claims to maritime space in the South China Sea should be derived solely from legitimate claims to land features”).
South China Sea Arbitration Award (Merits) §§vi, vii(d)–(e). On us views, see, for example, Ashton Carter, Secretary of Defense Speech,u.s. Pacific Command Change of Command, 27 May 2015, available at: http://archive.defense.gov/Speeches/Speech.aspx?SpeechID=1944.
Secretary of State John Kerry, Remarks with Philippines Foreign Secretary Perfecto Yasay, 26 July 2016, available at: https://www.state.gov/secretary/remarks/2016/07/260541.htm (“It’s impossible for it to be irrelevant. It’s legally binding… And it’s obviously a decision of a court that’s recognized under international law. It has to be part of the calculation”); John Kirby, Press Statement, Assistant Secretary and Department Spokesperson, Bureau of Public Affairs, 12 July 2016, available at: https://ph.usembassy.gov/statementusdepartmentstatespokespersonjohnkirbydecisionphilippineschinaarbitration/ (“the Tribunal’s decision is final and legally binding on both China and the Philippines. The United States expresses its hope and expectation that both parties will comply with their obligations”). China’s criticisms are discussed in a later section.
American Law Institute, Restatement (Third) of Foreign Relations Law of the United States, vol. 2 (1987) p. 5 "[B]y express or tacit agreement accompanied by consistent practice, the United States, and states generally, have accepted the substantive provisions of the Convention, other than those addressing deep sea-bed mining, as statements of customary law binding upon them apart from the Convention.”); Hillary Clinton Statement on the South China Sea [note 3 above] (“call[ing] on all parties to clarify their claims in the South China Sea in terms consistent with customary international law, including as reflected in the Law of the Sea Convention”).
See, for example, M. Taylor Fravel, The Strategic Implications of the South China Sea Tribunal’s Award, National Interest, 13 July 2016, available at: http://nationalinterest.org/feature/why-the-south-china-sea-tribunals-ruling-may-backfire-16951; Alex G. Oude Elferink, The South China Sea Arbitration’s Interpretation of Article 121(3) of the losc: A Disquieting First, 7 September 2016, available at: http://site.uit.no/jclos/2016/09/07/the-south-china-sea-arbitrations-interpretation-of-article-1213-of-the-losc-a-disquieting-first/.
United Nations Charter, arts. 2(3), 2(4).
See, for example, Kirby, supra note 30. (us “support[s] efforts to resolve territorial and maritime disputes in the South China Sea peacefully, including through arbitration”); Remarks of Susan A. Thornton, Acting Assistant Secretary, Bureau of East Asia and Pacific Affairs, Beijing, 26 May 2017, available at: https://www.state.gov/p/eap/rls/rm/2017/05/271410.htm (expressing us support for “respect for legal processes and diplomatic processes like the arbitral tribunal” and for ongoing efforts to develop multilateral Code of Conduct); Foreign Ministry, People’s Republic of China, China Adheres to the Position of Settling Through Negotiation, supra note 14..
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, i.c.j. Reports 1984, p. 392; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, i.c.j. Reports 1986, p. 14.
Kirby, supra note 30; Nick Wadhams, u.s. Presses China to be Responsible Power after Sea Ruling, (quoting State Department spokesman), Bloomberg, 12 July 2016, available at: https://www.bloomberg.com/news/articles/2016-07-12/u-s-presses-china-to-be-responsible-power-after-maritime-ruling.
See, for example, Simon Denyer, u.s. ‘Hypocrisy’ and Chinese Cash Strengthen Beijing’s Hand in South China Sea, Washington Post, 19 June 2016; Spotlight: u.s. Refusal to Honor Court Ruling in Nicaragua Case Reflects Double Standards,” Xinhua, 14 July 2016, available at: http://news.xinhuanet.com/english/2016-07/14/c_135512985.htm.
For an example of this view from an American scholar that quickly gained currency in Chinese policy intellectual circles, see Graham Allison, Of Course China, Like All Great Powers, Will Ignore an International Legal Verdict, Diplomat, 11 July 2016, available at: http://thediplomat.com/2016/07/of-course-china-like-all-great-powers-will-ignore-an-international-legal-verdict/.
Yang Jiechi, supra note 6. (“Certain countries outside the region have attempted to deny China’s sovereign rights and interests in the South China Sea through the arbitration.”); Abuse of International Law Impacts International Order, Renmin Ribao, 12 July 2016, available at: http://paper.people.com.cn/rmrb/html/2016-07/12/nw.D110000renmrb_20160712_4-03.htm (blaming Western forces led by the United States for manipulation of arbitration and international law more generally); Western Countries Should Stop Playing International Law as Political Card, People’s Daily, 10 July 2016, http://en.people.cn/n3/2016/0710/c98649-9083897.html.
On the twin risks of abandonment and entrapment (discussed below) in alliance relationships, see generally, Glenn H. Snyder, Alliance Theory: A Neo-Realist First Cut, 44 (1) Journal of International Affairs, 2013–123 (1990); in the East Asian context, see Victor D. Cha, Abandonment, Entrapment and Neoclassical Realism in Asia,” 44(2) International Studies Quarterly, 261–291 (2000).
Statement of Foreign Secretary Perfecto Yasay on the West Philippine Sea arbitration case The Republic of Philippines v. The People’s Republic of China, Department of Foreign Affairs, Pasay City, 12 July 2016, available at: http://globalnation.inquirer.net/140968/full-text-dfa-foreign-affairs-perfecto-yasay-west-philippine-sea; Chris Larano, Philippines’ Duterte Asks Ex-President to Begin Talks in South China Sea Dispute, Wall Street Journal, 15 July 2016.
Benjamin Kang Lim, Philippines’ Duterte Says S. China Sea Arbitration Case to Take ‘Back Seat,’ Reuters, 19 October 2016, available at: http://www.reuters.com/article/us-china-philippines-idUSKCN12J10S; Jane Perlez, Philippines’ Deal with China Pokes a Hole in us Strategy, New York Times, 2 November 2016.
Vietnam Welcomes Tribunal Ruling on South China Sea Dispute, Associated Press, 12 July 2016; Remarks of the Spokesperson of the Ministry of Foreign Affairs of Vietnam, 12 July 2016; Press Release Following the Decision of the Arbitral Tribunal on the South China Sea Issue—Statement by Malaysia, 13 July 2016; Amy Searight, Diplomacy and Security in the South China Sea: After the Tribunal, Statement before the House Foreign Affairs Subcommittee on Asia and the Pacific, 22 September 2016, available at: http://docs.house.gov/meetings/FA/FA05/20160922/105354/HHRG-114-FA05-Wstate-SearightA-20160922.pdf (summarizing asean States’ reactions).
See Chinese (Taiwan) Society of International Law, In the Matter of an Arbitration under Annex vii to the 1982 United Nations Convention on the Law of the Sea on the Issue of the Feature of Taiping Island (Itu Aba) Pursuant to Article 121(1) and (3) of the 1982 Convention on the Law of the Sea, pca Case No. 2013-19 between the Republic of the Philippines and the People’s Republic of China, Amicus Curiae Submission, 23 March 2016, available at: http://csil.org.tw/home/wp-content/uploads/2016/03/SCSTF-Amicus-Curiae-Brief-final.pdf; South China Sea Arbitration Award (Merits) ¶¶ 89, 92, 139–142; Jacques deLisle, Why Taiwan President Ma Ying-jeou’s Day-Trip to Taiping Island was Such a Big Deal, fpri Enote, February 2016, available at: http://www.fpri.org/article/2016/02/why-taiwan-president-ma-ying-jeous-day-trip-taiping-island-was-such-big-deal/
Lesley Wroughton and John Walcott, u.s. Launches Quiet Diplomacy to Ease South China Sea Tensions, Reuters, 14 July 14, 2016.
Ros Krasny, Trump Takes on China in Tweets on Currency, South China Sea, Bloomberg, 4 December 2016, available at: https://www.bloomberg.com/news/articles/20161204/trumptakesonchinaintweetsaboutcurrencysouthchinasea (“Did China ask us if it was ok to devalue their currency (making it hard for our companies to compete), heavily tax our products going into their country (the u.s. doesn’t tax them) or to build a massive military complex in the middle of the South China Sea? I don’t think so!”); Trump Slams China’s Seizure of u.s. Drone in Tweet, Politico, 17 December 2016, available at: http://www.politico.com/story/2016/12/trump-china-drone-seizure-232775; Transcript, Confirmation Hearing for Secretary of State Nominee Rex Tillerson, Senate Foreign Relations Committee, 14 January 2017, available at: http://edition.cnn.com/TRANSCRIPTS/1701/14/cnr.04.html (“We’re going to have to send China a clear signal that, first, the island building stops and, second, your access to those islands is also not going to be allowed”); Statement of Secretary of State Nominee Rex Tillerson, Senate Foreign Relations Committee, 11 January 2017, available at: https://www.state.gov/secretary/remarks/2017/01/267394.htm (“We should also acknowledge the realities about China. China’s island-building in the South China Sea is an illegal taking of disputed areas without regard for international norms.”); Sam LaGrone, Spicer South China Sea Comments Draw Negative Beijing Response, usni News, 24 January 2017, available at: https://news.usni.org/2017/01/24/spicersouthchinaseacommentsdrawnegativebeijingresponse (“So it’s a question of if those islands are in fact in international waters and are not part of China proper then yeah we’re going to make sure we defend international territories from being taken over by one country”).
Javier C. Hernandez, Trump’s Mixed Signals on South China Sea Worry Asian Allies, New York Times, 10 May 2017; South China Sea: us Carrier Group Begins ‘Routine’ Patrols, bbc, 19 February 2017, available at: http://www.bbc.com/news/world-asia-china-39018882; Idrees Ali and David Brunnstrom, u.s. Warship Drill Meant to Defy China’s Claim over Artificial Island: Officials, Reuters, 26 May 2017, available at: http://www.reuters.com/article/ususasouthchinaseanavyidUSKBN18K353 (quoting Pentagon spokesman, “We are continuing regular fonops, as we have routinely done in the past and will continue to do in the future”).
Vice Foreign Minister Liu Zhenmin at the Press Conference on the White Paper Titled China Adheres to the Position of Settling Through Negotiation the Relevant Disputes Between China and the Philippines in the South China Sea, 13 July 2016, available at: http://www.fmprc.gov.cn/mfa_eng/wjdt_665385/zyjh_665391/t1381980.shtml; Yang Jiechi, supra note 6.
China Adheres to the Position of Settling Through Negotiation, supra note 14, ¶125; ; Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines, December 7, 2014 ¶¶ 4–29, available at: http://www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1217147.shtml.
China Adheres to the Position of Settling Through Negotiation, supra note 14, ¶¶ 26–31; Position Paper, supra note 49, ¶¶ 30–79; Statement of the Ministry of Foreign Affairs of the People’s Republic of China on the Award of the Arbitral Tribunal in the South China Sea Arbitration Established at the Request of the Republic of the Philippines, 12 July 2016 ¶ 2, available at: http://www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1379492.shtml.
China Adheres to the Position of Settling Through Negotiation, supra note 14, ¶¶ 5, 74–91, 115–120; Position Paper, supra note 49 ¶¶ 80–85; Statement of the Ministry of Foreign Affairs of the prc on the Award, supra note 50, ¶ 3.
See, for example, Yang Jiechi, supra note 6, (tribunal “disregard[ed] China’s staunch position,…went beyond its authority, turned a blind eye to the history and reality of the South China Sea and misinterpreted relevant stipulations of uncls…and overstepped and expanded its authority to render this award”).
Zhiguo Gao and Bing Bing Jia, The Nine- Dash Line in the South China Sea: History, Status and Implications,” 107 (1) American Journal of International Law (2013), pp. 98–123; Foreign Ministry Spokesperson Jiang Yu’s Regular Press Conference, 15 September 2011, available at: http://vancouver.china-consulate.org/eng/fyrth/t860126.htm, (asserting that unclos “does not restrain or deny a country’s right which is formed in history and abidingly upheld”); eez Law, art. 14 (law implementing unclos eez provisions following China’s accession “shall not affect [China’s] historic rights”); Statement of the Ministry of Foreign Affairs of the prc on the Award, supra note 50, ¶ 3, (tribunal “speculatively interprets and applies unclos, and obviously errs in ascertaining facts and applying the law”).
Statement of the Ministry of Foreign Affairs of the prc on the Award, supra note 50, ¶ 3, (tribunal “selectively takes relevant islands and reefs out of the macro-geographic framework” of larger island groups); Negotiation is the Only Way to Solve the South China Sea Problem, Renmin Ribao, 14 July 2016, available at: http://paper.people.com.cn/rmrb/html/2016-07/14/nw.D110000renmrb_20160714_4-03.htm (criticizing “absurd” interpretation of standards for reefs and islands).
China Adheres to the Position of Settling through Negotiation, supra note 14, ¶¶ 56–61, 73, 93–114.
Huang Huikang, Dao Inhabits People’s Hearts,” Ministry of Foreign Affairs of the People’s Republic of China, 21 July 2016, available at: http://www.fmprc.gov.cn/mfa_eng/wjb_663304/zwjg_665342/zwbd_665378/t1383350.shtml; Yang Jiechi, supra note 6; compare Statement of the Ministry of Foreign Affairs of the prc on the Award, supra note 50, ¶ 3 (arbitral panel and its award “substantially impair the integrity and authority of unclos”).
See supra note 39.
See, for example, cnooc, Petro-Vietnam, pnoc, Joint Statement on the Signing of a Tripartite Agreement, for Joint Marine Seismic Undertaking in the Agreement Area in the South China Sea, 14 March 2005, available at: http://ph.china-embassy.org/eng/zt/nhwt/t187333.htm.
Experts Worry China May Soon Establish South China Sea adiz, Voice of America, 29 July 2015, available at: www.voanews.com/content/experts-concerned-china-may-soon-establish-southern-adiz/2882795.html; Charles Clover, Beijing Seeks New Ways to Assert South China Sea Authority, Financial Times, 12 October 2016 (quoting Wu Shicun); Manila Expects China to Build on Scarborough Shoal, South China Morning Post, 7 February 2017; Patricia Lourdes Viray, Think Tank: China Might Occupy Scarborough, Ayungin after un Court Ruling, 13 July 2016, available at: http://www.philstar.com/headlines/2016/07/13/1602433/think-tank-china-might-occupy-scarborough-ayungin-after-un-court-ruling.
Barry Buzan, China in International Society: Is ‘Peaceful Rise’ Possible? 3 (1) Chinese Journal of International Politics (2010), pp. 5–36; Alistair Iain Johnson, Is China a Status Quo Power?, 27 (4) International Security, (2003), pp. 5–56; Kong Qingjiang, Beyond the Love-Hate Relationship: International Law and International Institutions and the Rising China, 15(1) China: An International Journal, (2017), pp. 41–62.
See, for example, Paul Gewirtz, Limits of Law in the South China Sea, Brookings Center for East Asia Policy Studies East Asia Policy Paper No. 8 (2016); Xu Xiaobing, A un Ruling against China Won’t Help Resolve the South China Sea Dispute with the Philippines, South China Morning Post, 6 July 2016; Ian Forsyth, A Legal Sea Change in the South China Sea: Ramifications of the Philippines’ itlos Case, 14 (1) China Brief (4 June 2014), available at: https://jamestown.org/program/a-legal-sea-change-in-the-south-china-sea-ramifications-of-the-philippines-itlos-case/
On these issues, see Stefan Talmon, The South China Sea Arbitration and the Finality of ‘Final’ Awards, 8(2) Journal of International Dispute Settlement, (2017) pp. 388–401.
Notably (and as some of the sources cited above reflect), there was some confusion in media reports and even more specialized commentary, some of which indicated that the tribunal was a panel of the Permanent Court of Arbitration in the Hague (or itlos or the un), rather than an ad hoc tribunal that used some pca resources. Some critics of the opinion emphasized the error, and the distinction, with the hope or expectation that doing so would lessen the decision’s stature and impact. See, for example, Permanent Court of Arbitration Clarifies Role in South China Sea Case, Xinhua, 16 July 2016, available at: http://www.globaltimes.cn/content/994642.shtml; Ambassador Tian Xuejun Gives an Exclusive Interview to the Independent Media on the So-called Award by the Arbitral Tribunal for the South China Sea Arbitration, People’s Republic of China Ministry of Foreign Affairs, 20 July 2016 (question 1), available at: http://www.mfa.gov.cn/zflt/eng/jlydh/sjzs/t1383074.htm.
Chinese sources have stressed this argument. See South China Sea Arbitration Abuses International Law, Threatens World Order, People’s Daily, 29 June 2016; but see Tara Davenport, Why the South China Sea Arbitration Case Matters (Even if China Ignores It), The Diplomat, 8 July 2016, available at: http://thediplomat.com/2016/07/why-the-south-china-sea-arbitration-case-matters-even-if-china-ignores-it/; and Roncevert Ganan Almond, “The South China Sea Ruling,” The Diplomat, 16 July 2016, available at: http://thediplomat.com/2016/07/interview-the-south-china-sea-ruling/.