By Priscilla A. Tacujan
The U.S. State Department has put China on notice: international law will be the sole basis for arbitration the settlement of maritime conflicts in the Asia Pacific. In effect, it has rejected Chinese claims based on historical rights, questioning China’s nine-dash line for “lack of any explanation or apparent basis under international law.” In his testimony before the House Foreign Affairs Subcommittee on Asia and the Pacific, Assistant Secretary of State for East Asian and Pacific Affairs Daniel Russel laid down the acceptable legal framework through which to evaluate and resolve the East and South China seas disputes. His testimony provided clarification of the United States’ approach to this maritime conflict in the strongest language to date. While this position may affect U.S. diplomatic overtures with China, it is needed to reassure allies in Asia and encourage China’s cooperation.
Chinese authorities are probably asking what gives the United States the right to declare which frameworks must be used to resolve disputes. To that the United States would say, as Russel did in his testimony, that U.S. foreign policy has long underwritten the freedom of the seas and the laws that ensure it. As nations engage in global business and trade, every country has the right to exercise freedom of movement and navigation. But when claimant countries implement their own rules, they often run into conflict with those of other claimants, creating tension and instability. According to Russel’s testimony, “international law makes clear the legal basis on which states can legitimately assert their rights in the maritime domain or exploit marine resources. By promoting order in the seas, international law is instrumental in safeguarding the rights and freedoms of all countries regardless of size or military strength.”
While the State Department makes clear that it does not take any position on competing claims to sovereignty over disputed territories in the East and South China seas, it does take a strong position regarding conduct of claimant countries, pointing to provocations by China that include establishing an air defense identification zone over the East China Sea and increasing military patrols in disputed waters. By putting the onus on China, the State Department is warning Beijing that it should start complying with the laws of the sea.
So, what are the implications of this international legal framework on maritime conflict settlement in the Asia Pacific? For one, establishing an international legal framework as the basis for dispute settlement will shape the dynamics in the region in a way that facilitates a more resolute and speedy settlement of the conflicts, as it defines the parameters of nations’ behavior toward one another. It also bolsters the case against China by disputant countries entrusting in international law. It puts countries resorting to other measures, such as encroachments and territorial take-overs, on the defensive. It also implicitly calls for a greater role for security alliances and military partnerships between the United States and those disputant countries relying on the merits of international law. This framework also lends support and credibility to ASEAN and other regional organizations as they seek to implement multilateral negotiations and mediations of the disputes.
However, this framework also raises the old question of enforceability in maritime dispute-settlement, as China has announced on multiple occasions that it will not comply with the decisions of international courts. Hence disputant countries relying on the merits of international law must pursue multi-pronged strategies that should include both diplomatic and military approaches. This entails international arbitrations and multilateral negotiations backed by security alliances with friendly foreign military forces.
For its part, China must examine its maritime claims against its larger interests and expanding role on the regional and world stage. As a rising power, China’s clout has expanded worldwide. But in Asia, it plays a particularly critical role in the affairs of its neighbors. As far as its maritime claims are concerned, China must understand that ancient imperial encroachments are inconsistent with modern nation-states’ clearly-delineated sovereignty and boundary rights. As to the marine and oil resources in the disputed territories, China is wealthy enough to invest in their exploration and development by partnering with their rightful owners and making things profitable for both sides.
So how should this maritime game be played? International law provides a set of rules for transactions, negotiations, and dispute resolutions. It is a tool readily available to these littoral states, burdened by the political and economic costs of a maritime conflict that has dragged on for decades and for which no resolution seems in sight. But international law must have teeth. With U.S. endorsement of the legal approach to dispute settlement, vetted by strong military alliances, China has been put on notice.
Dr. Priscilla A. Tacujan is an independent consultant and a Ph.D. graduate of Claremont Graduate University, Claremont, California.