17.10.17 |

[Malcolm Jorgensen is a Research Fellow at the Berlin Potsdam Research Group “International Law–Rise or Decline?”]

In their new book The Internationalists: How a Radical Plan to Outlaw War Remade the World, Oona Hathaway and Scott Shapiro assert that Chinese occupation of maritime features in the South China Sea is “worth little as long as the rest of the world refuses to recognize them.” That conclusion follows a sophisticated argument that legal prohibitions against territorial conquest, tracing back to 1928, remain the necessary source of legitimacy for exercising effective global power. Evidence from the South China Sea, however, suggests an important exception to this claim, with China increasingly demonstrating effective exercise of regional power without the authority of international law.

The observation that international law facilitates effective power turns on a globally recognised order in which legal rules inform states’ rational calculations about what actions will likely be challenged as threats to that order. In Hathaway and Shapiro’s words: “Real power—power useful for achieving important political objectives—does not exist in the absence of law. Law creates real power. States can reach their goals only if others recognize the results of their actions.” To demonstrate this point, they argue that the outlawing of war in the 1928 Kellogg-Briand Pact ensured that Japan’s 1931 occupation of Manchuria yielded little benefit, since “it was not enough if no one treated Manchuria as Manchukuo.” The “Stimson Doctrine” of 1932 confirmed this as US policy against recognising territorial claims achieved by conquest.

Excessive Chinese maritime claims are plainly illegal, with the “Nine-Dash line” they have long been based upon firmly discredited in the 2016 award of the Permanent Court of Arbitration, initiated by the Philippines. Yet China now enjoys unchallenged de facto possession of the artificial island features it claims, which have been described as “unsinkable aircraft carriers” allowing the projection of military power far from China’s mainland. Of the seven artificial islands, up to three may be capable of accommodating fighter jets, being equipped with runways, radars and surface-to-air missiles. Likewise, physical possession secures potential Chinese access to maritime resources it has long claimed.

Moreover, the relative decline of US power in the region ensures there is now no reasonable prospect of China being dislodged from its possession of these features – the calculus of the military violence required to disrupt the status quo favours no state or coalition of states. The US military conducts freedom-of-navigation operations, and calls on allies to support them in emphasising the illegitimacy of China’s possession. But this does not extend to measures for returning the region to a legitimate situation under international law. Southeast Asian leaders have now dropped criticisms of “land reclamation and militarization” long included in official statements. The calculus has already shifted from preventing to managing Chinese occupation.

The limitation of The Internationalists is that it does not take account of the way that international law is refracted through geographical configurations of power and thus operates in differentiated ways across regions. The Asia-Pacific now resembles a “geolegal” sphere of Chinese influence, in which China’s growing regional dominance over multilateral institutions and legal development amplifies its rising geopolitical power. China’s primary geostrategic interest is to establish uncontested military power within its “near seas,” rather than global hegemony, and is now leveraging its geolegal sphere to shift states towards acquiescence to a nationalist maritime order, and away from international law.

China’s geolegal sphere is built on its record as an effective rule maker – leading a major diplomatic defeat in establishing the Asian Infrastructure Investment Bank against US objections and promoting the Regional Comprehensive Economic Partnership as a free trade alternative to the Trans-Pacific Partnership. Proponents of Chinese integration into existing rules and institutions have long argued that a Chinese stake commensurate to its growing power will ultimately complement the existing legal order, and is therefore “unlikely to undo the rules, norms, and structures that exist today.” Yet China’s greater legal role arguably now enables rather than constrains incentives to carve out zones of non-law in the maritime domain that are insulated against legal sanctions.

Increasing geolegal power manifests as pressure on states to accede to China’s will, including its preference to resolve disputes bilaterally rather than through legal institutions. In 2012 the Philippines deployed navel assets to protect the disputed Scarborough Shoal, which provoked Chinese economic retaliation – ranging from tourism bans to leaving tonnes of banana imports rotting at port. Increasing governance of international economic rules will only heighten such powers, and increase costs of opposition. The Philippines has now effectively set aside the definitive 2016 legal ruling made in its favour, to pursue a joint development agreement with China. This so-called “modus vivendi” leaves the status quo legal position of China undisturbed, who frames the agreement as a mere political concession.

The submission of the Philippines speaks to a broader dynamic in China’s favour, which is the unwillingness of individual states to risk isolation when openly defying Beijing. This is a classic prisoner’s dilemma, in which China divides and conquers opponents until they submit to its rules whether legal or not. The core problem for the arbitral ruling, and the broader legal system it represents, is that they are now sufficiently detached from regional geopolitical power that China can openly assert alternative non-legal principles for allocating rights and resources, and that these facilitate effective use of political power. As between the pronouncements of the PCA and the CPC, the latter’s account is increasingly a more accurate description of effective rules operating in the South China Sea.

China continues to assert claims in the language and symbols of international law, but drawn from “historical rights” as a concept largely unknown to the law. China’s latest iteration of the Nine-Dash Line adapts the rules of the UN Convention on the Law of the Sea itself to make territorial claims around the “Four Sha” island groups located within that line. Yet these are rights only available to an archipelagic state – which China is not. At best these various claims resemble “Folk International Law”: “a law-like discourse that relies on a confusing and soft admixture of [principles] to frame operations that do not, ultimately, seem bound by international law.” Yet, the geographically limited aim of controlling China’s near seas means that lack of global legal recognition is of secondary relevance. China’s sui generis rules now inform states’ rational calculations about what actions will likely be challenged as threats to the existing order.

The assumption of a positive relationship between a rising Chinese stake in the international legal system and respect for that system does not appear to be holding, as China leverages its geolegal sphere to carve out a maritime domain of non-compliance. There is thus no prospect of returning to an Asia-Pacific in which maritime order aligns with the rules set out in UNCLOS – previously signed or ratified by all states in the region, including China. Continued denial of the legality of this nascent order remains crucial, as it undoubtedly renders Chinese power less efficient, but the terms of UNCLOS are no longer an effective blueprint for rational behaviour by regional stakeholders.

Hathaway and Shapiro’s conclusions are dangerous if they treat the ideal of the rule of international law as a description of political reality. Their own argument concludes that the foundation of an effective international legal order remains American willingness to underpin it with real hard power – the continuation of Pax Americana. Here the Trump administration’s withdrawal from the TPP may well have foreclosed the last major initiative capable of meaningfully slowing the transfer of geolegal power. The TPP was crucial not merely as the embodiment of liberal trading rules, but as a demonstration of the US role as anchor to that order. The region is now witnessing the global pretentions of international law following the fate of fragmenting geopolitical power.

The South China Sea remains an ongoing dialogue between embryonic Chinese maritime rules and the rule of international law, but one that will be increasingly difficult to untangle. The anchor of Western legal policy in a regional “rules-based order” is thus almost literally one embedded in shifting sands. The strategic objective for regional stakeholders should be effective geolegal balancing by denying the lawfulness of Chinese claims, but as complimentary rather than an alternative to effectively balancing geopolitical power. Failing to defend the rule of international law will ensure that the pockets of non-law asserted by a single state expand to eclipse the previous order, and ultimately become international law itself.