South China Sea

Whether the South China Sea Arbitral Award Matters Will Depend Almost Entirely On the U.S.

By Julian Ku
Monday, September 12, 2016, 1:34 PM

It has been two months since the UN Convention for the Law of the Sea arbitral tribunal issued its blockbuster award ruling against China’s maritime claims and activities in the South China Sea. Given all the buildup, it is remarkable how little has changed since the award was released. Was the award much ado about nothing? Not quite, or at least not yet. The award still matters, although the award’s continued significance depends almost entirely on the U.S. government’s reaction. With the exception of Japan, no other nation in the region besides the U.S. has made the enforcement of the arbitral award a meaningful priority.

During the recent round of summitry in Asia, it is striking how the U.S. and Japanese governments seemed to be the only countries publicly pressing China to abide by the award. Not only did the meeting of the Association of Southeast Asian Nations (ASEAN) result in an equivocal statement that did not mention the arbitral award, but Philippines President Rodrigo Duterte cast aside a prepared speech that would have called for China to abide by the award. Instead, Duterte defended the Philippines’ human rights record from international criticism while also reminding his audience of world leaders of the U.S. human rights abuses in his country during the early 20th century.

This leaves the U.S. and Japan in the odd position of being more publicly supportive of the arbitral award than the country that brought the arbitration in the first place. Indeed, President Obama has made this arbitral award a personal priority. Just before he visited China for the G-20 last week, President Obama gave an interview on CNN that criticized China for failing to abide by the arbitral award ruling.

When it comes to issues related to security, if you sign a treaty that calls for international arbitration around maritime issues the fact that you're bigger than the Philippines or Vietnam or other countries, in and of itself, is not a reason for you to go around and flex your muscles. You've got to abide by international law.

Released the day before he arrived in China (and subsequently banned there), these remarks were intended to send a clear message to Beijing. Indeed, President Obama went further in his CNN remarks to issue a “red line” of sorts:

So where we see them violating international rules and norms, as we have seen in some cases in the South China Sea or in some of their behavior when it comes to economic policy, we've been very firm. And we've indicated to them that there will be consequences.

(Emphasis added). The key here is that the president indicated that this warning has already been given to the Chinese government. Indeed, the White House readout of his subsequent meeting with Chinese President Xi shows that President Obama raised the arbitral award directly with President Xi:

The two leaders had a candid exchange on the recent arbitral tribunal ruling on the case between the Philippines and China, with President Obama emphasizing the importance for China, as a signatory to UNCLOS, to abide by its obligations under that treaty, which the United States views as critical to maintaining the rules-based international order.

To recap, President Obama has publicly called on China to abide by the arbitral award, warned there will be “consequences” if China violates certain international “norms,” in the region, and then personally raised the arbitral award directly with China’s President. Coming directly from the President, these statements mean that the U.S. government is as fully committed as it ever gets to defending the political and legal significance of the arbitral award. Given China’s continued rejection of this same arbitral award, one can expect the arbitral award to continue to be an issue of contention between the two countries going forward.

By contrast, the arbitral award will not matter nearly as much with respect to China’s relations with ASEAN countries. I have some thoughts on why this will be the case that I will share later this week. But the U.S. and Japan stand relatively alone on this point. Luckily, the U.S.—and Japan to a lesser degree—are in a position to impose some costs on China for its defiance of the arbitral ruling.

For instance, as I argued this past July, the U.S. can continue its freedom of navigation operations in the region on a firmer and more aggressive footing with the support of the arbitral award. The White House has already indicated such FONOPs will likely resume this fall. And although the U.S.’s diplomatic shamefare campaign has yielded little so far, China is still on the defensive over the arbitral award and the U.S. can keep it that way by continuing to apply diplomatic pressure. And of course, the U.S. can (and already has) threatened “consequences” for China’s continued defiance up to and including military force to defend vital security interests such as the Scarborough Shoal.

None of these options will guarantee that China will actually pull back from the South China Sea. But in the end, if the arbitral award is going to matter, the U.S. government will have to make it matter. So far, President Obama has rhetorically committed the U.S. to just such a course. Whether his administration can or will execute this policy remains to be seen.