A United Nations tribunal is expected to rule within weeks on the legality of Beijing’s aggressive efforts to dominate the South China Sea, through which a third of global trade passes. The legal details are technical, but the issues at stake are not. Are we going to live in a rules-based world—and is the U.S. prepared to enforce the rules when they’re flouted?
The Hague-based tribunal, known as the Permanent Court of Arbitration, took the case last year after the Philippines filed 15 complaints against Beijing. Central to these is China’s forcible seizure in 2012 of Scarborough Shoal, a rich fishing area well inside the 200-mile exclusive economic zone guaranteed to the Philippines by the U.N.’s Convention on the Law of the Sea. Manila’s complaints also address China’s newly built artificial islands and its 1940s-vintage “nine-dash line” map claiming sovereignty over the sea.
The tribunal isn’t empowered to settle sovereignty claims. But it will rule on what maritime rights derive from certain shoals, artificial islands and other land features, no matter their owner. Manila wants—and is expected to get—confirmation that even if Beijing owns the tiny spits of land and rock it claims, it still isn’t entitled to control all the surrounding waters.
This has made Beijing nervous and angry, and no wonder. For years it has insisted that its claims to the South China Sea are nonnegotiable, and it calls the Hague arbitration “a political provocation in the guise of law.” It has worked furiously to gin up diplomatic support—including, as one Asian diplomat quipped the other day, from “such major maritime powers as Gambia, Sudan and Belarus.”
This arm-twisting has mostly failed, even with regional Chinese clients such as Laos and Cambodia: They understand that Beijing’s territorial ambitions, stretching from the Himalayas to islands off southern Japan, may someday include their own territory. Beijing insists it was the “first country to discover, name and exploit the resources” of the South China Sea. This use of dubious historical claims to assert sovereignty is an inherent threat to the region, since Chinese rulers controlled neighbors like Vietnam and Burma at one time or another.
U.S. policy has been that it “takes no position on the legal merits of the competing claims to sovereignty over the various islands, reefs, atolls and cays” in the sea. But a ruling for the Philippines would underscore China’s brazen defiance of international law—a concept the Obama Administration says it is determined to uphold.
The U.S. insists on freedom of navigation and overflight, as well as the peaceful resolution of disputes. U.S. policy is also explicit that it would “view with serious concern any maritime claim or restriction on maritime activity in the South China Sea that was not consistent with international law, including the 1982 United Nations Convention on the Law of the Sea.” That’s the issue before the Hague tribunal.
This means the Administration needs a serious and credible response if Beijing defies an adverse ruling. Mr. Obama’s decision to lift the U.S. arms embargo on Vietnam was a good signal, as was the recent visit of the USS Stennis battle group to the South China Sea, as was the deployment of U.S. A-10 attack jets to Clark Air Base in the Philippines. But a weak American response to further Chinese provocation would suggest the limits of U.S. resolve. Philippine President-elect Rodrigo Duterte, who has previously suggested a willingness to accommodate Beijing, will be watching.
A serious response would include a significant increase in the frequency and scope of freedom-of-navigation operations (Fonops) by the U.S. Navy in waters illegally claimed by China. Unlike the three Fonops carried out recently under the minimalist doctrine of “innocent passage,” future patrols should challenge China’s territorial claims by conducting standard military maneuvers that are lawful in international waters, such as radar surveillance and helicopter patrols.
They should also be augmented by patrols from regional naval powers such as Australia. The Chinese reaction is hard to predict, but the U.S. should make clear that any military action against these patrols would be met with a forceful military response. Beijing wants to turn the South China Sea into a Chinese lake but preferably without economic, diplomatic and strategic costs. The more multilateral opposition Beijing faces, the more it may think twice about its aggression.
This is a period of international uncertainty about America’s role in the world, driven by President Obama’s strategy of retreat and an isolationist mood in both major parties. That uncertainty is seen in Beijing—and Moscow and Tehran—as an opening to dominate their regions by rewriting the post-Cold War rules of behavior. Mr. Obama claims to believe in international law. His response to the Philippine ruling will show if he means it.