The Hague Ruling: Immediate Versus Longer Term Responses
By Mark J. Valencia

The Hague Ruling: Immediate Versus Longer Term Responses

Aug. 26, 2016  |     |  0 comments

The landmark decision of the Permanent Court of Arbitration (PCA) at The Hague to uphold most of the Philippines’ complaints against China is now history. Officials and analysts from countries both directly and indirectly affected had predictable immediate reactions. Some of their statements were clearly premature and rather emotional. This is the inevitable result of time-dependent policy analysis. But now that the dust has begun to settle, longer term trends are becoming discernible and some are quite different from the initial reactions.

As the major legal loser, China’s immediate reaction was, as expected, rather harsh. It declared the decision “null and void” and that it would not “accept nor recognize” it. It vented with warnings and threats to its immediate opponents as well as against those siding with them, like US allies Australia and Japan, as well as India and Vietnam. Chinese Defense Minister Chang Wanquan even called for a “people’s war at sea” to “safeguard sovereignty.” China also conducted naval exercises in the area and dispatched nuclear capable bombers to overfly Scarborough Shoal. Air force spokesman Senior Colonel Shen Jinke stated that the patrol was “to enhance combat capabilities to deal with various security threats” and to safeguard the country’s sovereignty and maritime rights and interests. Shen said bomber and fighter aircraft, early warning aircraft, reconnaissance planes and those capable of refueling in flight patrolled the airspace around the Spratly Islands and Scarborough Shoal.

Many international lawyers including those that represented the Philippines assumed that international opprobrium would compel China to comply with the decision. But as usual they substituted idealism for reality. China is unlikely to vacate or dismantle the artificial islands it has built. After publicly venting and at least temporarily mollifying and suppressing its nationalists, China has begun to consolidate its positions on the ground. It remains solidly entrenched on seven features. It has built military runways and hangars on Fiery Cross, Subi Reef and most significantly Mischief Reef which the PCA declared was a low-tide elevation in the Philippines Exclusive Economic Zone. It has conducted naval patrols around the still disputed Scarborough Shoal and continued to bar Philippine fishing boats from access to it — contrary to the PCA ruling.

Further it has undertaken live fire exercises east of Hainan closing off the area to shipping and overflight and announced upcoming naval exercises with Russia in the South China Sea. It has also stepped up its Coast Guard patrols in the East China Sea and allowed (and perhaps encouraged) swarming of fishing boats in Japan’s claimed contiguous zone and even its territorial sea around the disputed Senkaku (Diaoyutai) islands. This may well have been in retaliation for Japan’s support of the Philippines position in the aftermath of the PCA decision. It even went so far as to warn Tokyo that it would be crossing a “red line” if it joined the US’ freedom of navigation operations (FONOPs) in the South China Sea. To emphasize its determination, China’s Chief of the PLA Navy Admiral Wu Shengli stressed that China would never sacrifice its sovereignty and interests in the South China Sea, would never stop construction there and would never be caught off guard. China has also reinterpreted its laws so that it may arrest and jail anyone caught fishing in waters Beijing considers its own.

But despite the bluster and bluff, China has apparently decided to play for the longer term, leveraging its strong position on the ground while refraining from raising tension by initiating construction on Scarborough Shoal or declaring an air defense identification zone (ADIZ) in the South China Sea. Diplomatically it has insisted that the PCA decision not be discussed or even raised either with the Philippines or at regional meetings with ASEAN as well as at international meetings like the upcoming G20 in China.

Meanwhile it is offering some carrots like agreeing to a timetable for reaching agreement on a “framework” for a Code of Conduct (“middle of next year”), guidelines for a China-ASEAN hotline and an agreement with ASEAN to implement the code for unplanned encounters at sea. More germane, it has demonstrated a willingness to at least discuss sharing of Scarborough Shoal fisheries resources with the Philippines. The agreed agenda for further bilateral discussions includes marine preservation, avoiding tension and promoting fisheries co-operation. But it does not yet include co-operative development of resources in disputed waters. China’s medium term diplomatic strategy seems to be expressed in Foreign Minister Wang Yi’s words that “the situation should be cooled down.” In sum, China will most likely patiently consolidate its gains on the ground while avoiding actions that could trigger a US military response or coalescence of a Southeast Asian united front against it.

This contretemps may turn into a long term China-US test of wills, interspersed with bluffs and even risk taking — with the Southeast Asian countries watching from the side lines.

Taipei was, if anything, even more indignant regarding the PCA decision than Beijing — blasting it particularly for deeming Taiping Island a rock. It immediately dispatched another coast guard vessel to “defend Taiwan’s territory” even though the decision did not threaten its sovereignty claim.

The Philippines and its supporters’ immediate reaction was jubilation. But this was soon tempered by realism and advice from its main supporter the US to avoid provocative statements or actions. The Philippines now realizes that although it has achieved a legal victory, as a small power facing an unpredictable, humiliated and angry big power, any practical gains will probably depend on its diplomacy and ultimately a negotiated compromise. However, re-entering dialogue may eventually undercut the US-Philippine relations, the US rebalance to Asia, and US attempts to form a block to bunt China’s assertiveness in the South China Sea.

It has therefore proceeded cautiously, by sending out feelers to China for talks and in so doing refraining from bringing up the PCA decision directly. While the Philippines may use the decision as a guide for its position in follow up negotiations, it does not have to and probably will not refer to it directly. Although Supreme Court Judge Antonio Carpio recommended that the Philippines file for monetary compensation, the Duterte administration has rejected this idea.

The US’ initial reaction was to extol the confirmation of the “rule of law” and urge China to comply with the decision. However, it advised the Philippines, its allies and friends in Asia to show restraint and not to taunt China or flaunt the decision in their relations with China. Nevertheless, US nationalists urged the US to step up its FONOPs missions — particularly around Mischief Reef — and declare “red-lines” that China should not cross — like Chinese construction on Scarborough Shoal or declaring and enforcing an ADIZ over the Spratly Islands. They also called on the Obama administration to clarify that its Mutual Defense Treaty with the Philippines includes any attack on Philippine vessels, troops, facilities or territory — including Scarborough Shoal.

While the Obama administration has refrained from follow up “in your face” FONOPs, it has stepped up its military presence in the South China Sea. But it also sent in quick succession three senior security leaders to Beijing — Chief of Naval Operations Admiral John Richardson, National Security Advisor Susan Rice and the Chief of Staff of the Army General Mark A. Milley. The US also went ahead with a naval guided missile destroyer visit to Qingdao. Although these visits were previously scheduled, coming as they did on the heels of the PCA decision, its and China’s possible reactions must have been discussed or at least alluded to in what Rice described as “candid conversations.”

It is not known if US “red-lines” have been explicitly communicated to China but US actions speak louder than words. It deployed two aircraft carrier strike forces into the South China Sea, flew simulated attack missions over Scarborough Shoal and then in an apparent tit for tat move sent three nuclear capable bombers (a B52, a B1 and a B2) on a simulated sortie over the South China Sea. It also deployed on schedule two P8A Poseidon surveillance planes to Singapore. Overall, the US has made clear that it will continue its “rebalance” to Southeast Asia and in particular the South China Sea, regardless of China’s concerns, military advances and policies there.

US ally Japan immediately echoed the US call for China to adhere to the rule of law and the PCA decision. But Japan has also belatedly begun to realize that the PCA decision is disadvantageous to its claims in the Sea of Japan, the East China Sea and around Okinotorishima. Nevertheless, it did not let up on its criticism of China’s behavior in the South China and East China Seas and even hinted that it might help “enforce” the decision. It is this “in your face” diplomacy that may have led to China’s stepped up actions in the East China Sea. Japan continued to deliver patrol boats to the Philippines and also agreed to loan it several billion dollars to build a new railway in the Manila area, perhaps trying to pre-empt China’s “aid diplomacy.”

Vietnam also continued its severe criticism of China’s behavior. It also continued to beef up its military presence in the area by deploying mobile rocket launchers to five features that it occupies. However, it seems to switch back and forth between defiance and willingness to negotiate its overlapping claims with China. It is clearly watching the situation and China and the US’ behaviors carefully to see which road it should take to achieve its national interests.

We are only about a month and a half out from the PCA decision and nations’ relevant policies are still being formulated and implemented in response to it. But there have been indications of longer term trends and some positive surprises. Policy makers and analysts are watching these developments and will digest and incorporate significant new ones as they occur.

What happens next depends on a variety of interrelated variables. These include if and how Beijing decides to moderate its behavior; what carrots and sticks the US offers; and what the Philippines offers China in return for moderating its behavior. Ultimately, this contretemps may turn into a long term China-US test of wills, interspersed with bluffs and even risk taking — with the Southeast Asian countries watching from the side lines.

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