How can a hulking schoolyard bully be restrained from harming smaller and weaker peers? This is the central problem vis-à-vis China’s hegemonic intimidation and railroading of neighbours in East Asia to accept its maximalist territorial demands in maritime disputes. Militarily unbeatable and economically indispensable to all neighbours, China is throwing its weight around to redraw boundaries as per its whims with no credible countervailing entity to stop it. The infamous “nine-dash line”, which lays claim to 80 per cent of the South China Sea, is a fictional creation of Chinese nationalists based on concocted historical facts of possessing vast waterways. Heedless to the pleas of other helpless parties to the conflict like Vietnam, the Philippines, Malaysia, Brunei and Taiwan, China’s mighty naval fleet is grabbing marine spaces in a hurry.
China’s dredging and reclamation of over four million square metres of land, building of artificial islands with military intent, as well as the pushy and combative posture of its Navy, which has been quarantining most portions of the South China Sea and blocking access to vessels of other nations, reek of supreme arrogance of power. In a well-functioning school, a bully would be tamed by authorities —they’d have rules and administrative tools to do so. But in East Asia today there is hardly a law or code to constrain China. Inspired by President Xi Jinping’s “four confidences doctrine” — “confidence in our chosen path, confidence in our political system, confidence in our guiding theories, and confidence in our culture”— China is forcing its expansionist designs in the absence of any fear of punishment or consequences.
A little pushback is occurring, but it lacks teeth to really compel China’s aggressive militarism to be dialled down. Last week, a legal tribunal under the Hague-based Permanent Court of Arbitration (PCA) announced over Chinese objections that it does have jurisdiction to decide on a complaint against China brought by the Philippines. The Philippines v. China case argues that China’s “nine-dash line” violates the United Nations Convention on the Law of the Seas (UNCLOS) and that Chinese unlawful naval activity is destroying the marine environment and preventing fishing by Filipinos in shoals and reefs of the South China Sea.
China first tried to deny that the tribunal had a standing to hear such a case by contending that the matter pertains to its sovereignty. But this ruse failed. Now that the legal verdict is expected in mid-2016 and it is obvious to unbiased experts that China will lose, the noise from Beijing has grown shriller and more nonchalant. The Communist Party’s mouthpieces have retorted that the PCA tribunal is an “irrelevant third party” and that the whole legal proceeding is “a political farce”. Anticipating that international justice will deem China as the wrongdoer, Beijing has not only refused to defend itself in the tribunal but also announced in advance that its ruling would be “null and void”.
Just as the bully pretends innocence and even victimhood when he is sought to be disciplined by the school, China is hitting back at the tribunal for “severely violating the legitimate rights that China enjoys.” Unlike the school management, though, the PCA tribunal is not a superior governing body which can sanction and alter Chinese browbeating of Asian littoral countries. The impotence of judicial instruments to control hegemons when they trample over customs, norms and laws is the core dilemma of international law. Legal inability to stop China in its tracks is not a new phenomenon. In 1986, the International Court of Justice (ICJ) ruled in favour of Nicaragua against the United States, which was found to have violated international law by launching a proxy war in the strategically located Central American country.
Just as China is harrumphing and pooh-poohing the PCA tribunal today, the US had refused to participate in the ICJ case and blocked the enforcement of the court’s compensation award to Nicaragua by misusing American veto power in the UN Security Council. Quite like the Chinese foreign ministry which is ridiculing the PCA tribunal, a foreign policy bigwig in the Ronald Reagan administration, Jeane Kirkpatrick, dismissed the ICJ as a “semi-legal, semi-juridical, semi-political body which nations sometimes accept and sometimes don’t.” In other words, the big powers like China and the US consider themselves to be above international law.
Since it is guaranteed that China will not abide by the PCA tribunal’s judgment, what other hope is left for the minions of Southeast Asia cowing before the dragon? The Barack Obama government has lately attempted to reassure its hapless Asian allies by sending a guided missile destroyer ship, USS Lassen, to patrol within the 12 nautical miles territorial water limit of China’s artificially reclaimed Subi Reef. Boasts by American officials that “we will fly, sail and operate wherever international law permits”, and earlier US and Japanese aerial forays into an exclusive “Air Defence Identification Zone” established by China, do challenge China to an extent. But Beijing knows that President Obama has no stomach or inclination for a full-on confrontation with China, either in the South China Sea or the East China Sea (where the Chinese Navy is trying to make inferior Japan to submit to its territorial ambitions).
USS Lassen barely entered the zone forbidden by China, avoided drawing close to Chinese built facilities, and departed in a short time. Believing that it can call Washington’s bluff, Beijing admonished the US “not to make a fool out of themselves in trying to be smart.” The hawkish Chinese state media howled that their proud nation is “not frightened to fight a war with the US in the region”.
Worst of all, for small nations in the region who are watching anxiously, Beijing has declared that the American trespass has made it “realise that we have to strengthen and speed up relevant construction activities”, i.e. take over more submerged reefs and create military outposts to shove out competitors from the South China Sea. In this jungle-like ambience, where some Southeast Asian countries like Indonesia, Cambodia and Laos are cautiously standing neutral or even siding with China, might is right. China is devouring land and water, taking minimal opposition in its stride, and establishing a new regime. The bully has commandeered the school.
The writer is a professor and dean of the Jindal School of International Affairs
