Asia - a community governed by law or power?

Hugh White
For The Straits Times

Jul 29 2016

The aftermath of the July 12 decision over the South China Sea disputes confirms that big power play dominates Asian geopolitics

The Hague tribunal's historic South China Sea decision on July 12 seems to have settled one set of questions - a set of legal questions - once and for all.

But that hasn't ended the uncertainties because the decision has thrust forward a new and even bigger set of questions which now confront us in Asia more starkly than ever before. They are political and strategic questions about the kind of region we live in here in Asia, and the principles that underpin it.

The questions are these: Is Asia a community of nations governed by rule and laws to which all countries, big and small, must ultimately submit?

Or do we live in a region governed ultimately by power, in which the rules are only what the more powerful states want to make of them, and the ultimate arbiter is armed force?

In other words, now we know what the rules say, we will now find out what the rules really mean - if anything.

Before the decision, the strength of China's legal entitlements in the South China Sea remained unclear. No one could say for sure whether, as a matter of law, it really had any credible maritime jurisdiction within its nine-dash line, whether it had the right to build bases on features in the Spratly Islands, or whether it could claim a territorial sea around the features it occupied.

China's position did not therefore necessarily amount to a repudiation of the rules.

Now there is no doubt.

So far as the Law of the Sea is concerned, China has no basis to assert jurisdiction within the nine-dash line, no right to claim ownership of some of the features it has built bases upon. The tribunal also ruled that none of the disputed features in the Spratlys constitutes "islands" that would merit an exclusive economic zone.

So what happens now? To many people, especially in places like Washington, Tokyo and Canberra, there is only one thing China can do. They say it must plainly abide by the decision and publicly abandon the claims that The Hague judges have dismissed.

But no one can seriously expect this to happen. Beijing's statements both before and after the decisions were handed down leave no room for doubt about that, and nor does the strength and evident spontaneity of Chinese public anger at the tribunal's decision.

Some people hope that China might, however, slowly and surreptitiously step back from its claims, so as to abide by the decision while minimising its humiliation. Alas this seems very hard to do, especially when we look at some of the details of the tribunal's decision.

Most attention has focused on the tribunal's dismissal of the nine-dash line. It is possible that Beijing could quietly step back from that because it has always been a little unclear exactly what China is really claiming there, and even how serious it has been about it.

But there is nothing unclear about China's claim to the features in the Spratlys on which it has built bases, and the tribunal's decision on the status of some of those features is pretty devastating.

The judges had no power to decide between competing claims to territorial sovereignty over the disputed features of the Spratlys. But it did have the power to decide whether some of the features there could be claimed as sovereign territory by anyone because, under the Law of the Sea, no country can claim sovereignty over a feature which is submerged at high tide.

And the judges found that some of the features on which China has created artificial islands and built military bases - including Subi Reef and Mischief Reef - were in their natural state submerged at high tide. That means they are not capable of being claimed as territory by anyone. They are part of the seabed, which means they fall under the jurisdiction of whoever holds an EEZ over that area, and other elements of the judgment clearly mean that if anyone holds an EEZ, it's the Philippines. It's certainly not China.

So accepting the tribunal's judgment would mean asking Manila's permission to leave the bases there, and removing them if Manila refuses. The sheer physical facts in the ground mean there is no discreet way for China to gently back away from these claims, as it could over the nine-dash line. It would have to accept overt humiliation. It's very hard to imagine Beijing doing that.

So China now has no choice but to reject the tribunal's judgment and defy the rules-based regional order which it represents. And that lays bare the brutal power politics that has been underlying this whole issue all along.

For America, the regional rules-based order has always been more than a basis for effective international cooperation. It has been an expression of American power and primacy in Asia, as President Barack Obama made starkly clear when he said that he was determined to ensure that America, not China, wrote the rules.

For China, its ability to defy American power by ignoring the rules that America seeks to enforce has become a crucial demonstration of its re-emergence as a great power, exercising authority over the regional system at least as great as America's.

For all of us in Asia, this carries real dangers because it means the stakes for both America and China are far higher than the control of a few rocks and reefs.

It is a contest of power between America and China, and The Hague tribunal's decision has thrust it right out into the open. How does it go from here?

The ball is now in Beijing's court, and much depends on how it chooses to play it. Will it play it cool, by limiting itself to loud language while avoiding provocative actions in the South China Sea itself - especially military actions?

Or will it decide to push back hard with overt provocations like declaring an air defence identification zone or building a new base on Scarborough Shoals? The signs so far are mixed. The second course would be far more dangerous, but either way, China's defiance of the rules will be plain.

America faces a big choice, too.

Even if Beijing plays it cool, Washington must now decide just how far it is willing to go to uphold and enforce the rules by punishing China. Some in Washington may hope that this might be done by measures short of armed intervention, like trade and diplomatic sanctions. But even this kind of action would hurt America as well as China, escalate tensions sharply and probably only make Beijing dig in deeper.

For both sides, the decision about whether they are willing to risk an armed clash is looming very close. And for the rest of us, the reality that we live in a region ultimately mediated by the power of its strongest states has been starkly confirmed.


Hugh White is professor of strategic studies at the Australian National University in Canberra.