South China Sea

U.S. Response to the South China Sea Arbitration and the Limits of the Diplomatic “Shamefare” Option

By Julian Ku
Tuesday, July 19, 2016, 10:22 AM

In a post last week, I argued that the recent UN Convention for the Law of the Sea (UNCLOS) arbitral award against China opens the legal door to more aggressive U.S. freedom of navigation operations (FONOPs) to directly challenge Chinese artificial islands in the South China Sea. This week, I turn to another possible U.S. response to the arbitral award: diplomatic “shamefare.”

By “shamefare,” I refer to the U.S. strategy of using China’s refusal to comply with the results of the arbitral award as a way to isolate China diplomatically in the region and around the world. Reportedly, the U.S. has been quietly lobbying countries all around the region over the past few months to this end. This “shamefare” tactic would, from the U.S. point of view, impose costs on China by damaging its regional and global reputation.  Although this strategy seems sound, the results after one week of the U.S. diplomatic lobbying campaign are pretty meager and disappointing.

To be sure, the U.S. and Japan issued similar statements on the same day that the award was released. In their initial very brief statements, both countries described the arbitral award as “legally binding” on both China and the Philippines. Both statements also go on to say that the U.S. and Japan, respectively, “expect” both parties to comply with the arbitration award.

But despite some earlier diplomatic arm-twisting by both the U.S. and Japan, only a few other countries came out with similar statements recognizing the “legally binding” nature of the award. Yanmei Xie of the Crisis Group has put together a phenomenal chart here breaking down the statements responding to the arbitral award of all of the key countries. According to Xie, only Australia and New Zealand echoed the U.S./Japan “legally binding” language. Every other country and association resorted to more abstract formulations exhorting the importance of UNCLOS and the principle of peaceful settlement of disputes. While none of these countries explicitly rejected the award, Pakistan and Russia both seemed to embrace China’s complaint about “unilateral” imposition of arbitration awards.

Crucially, neither the European Union nor ASEAN could bring itself to issue a clear statement calling the arbitral award legally binding much less state that China and the Philippines should be expected to comply with the award. Even the United Nations Secretary-General’s office could not bring itself to admit under questioning that the award is legally binding and made a point of distancing itself from the Permanent Court of Arbitration. As someone who has argued that the award is inarguably legally binding, this diplomatic mumbo-jumbo from organizations that should know better is deeply frustrating.

It would have been a more clear victory for “shamefare” if all, or even a majority, of the countries in the region had been willing to state the obvious: the arbitral award is legally binding and that countries that have signed UNCLOS, like China, should be expected to follow it. Instead, the abstract formulations set forth by the majority of key players, especially the EU and ASEAN, could have been easily embraced by China. And that is a problem.

This does not mean there are no diplomatic gains for the Philippines from the arbitral award. Indeed, the U.S. State Department laid out its expectations (or hopes) for how the arbitral award could help resolve disputes in the region in a background briefing.

What I would say is that the important thing, from our perspective, is that this ruling – although it was a technical assessment of maritime rights and doesn’t address or alter the question of who has sovereignty over the land features in the region – does create an important diplomatic opportunity. And we believe strongly that once the dust settles and the rhetoric subsides, this decision opens the door to some very practical and potentially productive discussions among the various claimants in the South China Sea, in part because the ruling significantly narrows the geographic scope of the areas in question.

This certainly seems like a plausible path forward. By ruling that all of the land features are either rocks or reefs, and that China’s Nine Dash Line grants China no maritime rights, the arbitral award opens the door to some possible compromises. Instead of battling over fishing rights and seabed resources, the parties would all be limited to either 12 nautical mile territorial seas or coastal EEZs. In principle, there should be less to fight about since, under the tribunal’s award, no single country (not even the Philippines) can claim maritime rights over the entire Spratly Island chain. Lawyers could be called in and regional joint fishing and undersea development agreements could all be worked out in a civilized manner.

The problem with this happy story, however, is that China still thinks it should be the exclusive maritime rights holder in the Spratly Islands. It is hard to see China accepting a half a loaf, or even three-quarters-of-a-loaf, unless it feels pressure to do so. By thoroughly denigrating the arbitral award, and by screaming loud enough that most countries would prefer to stay neutral on whether China must comply with the award, China is not going to feel much pressure to give up anything now.

Having committed itself to supporting the arbitral award, the U.S. has little choice but to keep reminding China and the world that the award is legally binding. But, at least after one week, it looks like the award has not dramatically changed the diplomatic landscape. Perhaps the next step is for the Philippines to go to the United Nations General Assembly or the annual meeting of States-Parties to UNCLOS to seek a resolution calling on compliance with the award. But China’s diplomatic blitz may have garnered enough support already among smaller nations to block such a resolution.

Diplomacy can accomplish great things. But one week in, it is hard to see how this path will be an especially fruitful one. If the United States wants to use the award to apply pressure or impose costs on China, it has a lot more work to do. And, in the meantime, it needs to more seriously explore its other non-diplomatic options.