June 19, 2016

Article at Washington Post

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U.S. ‘hypocrisy’ and Chinese cash strengthen Beijing’s hand in South China Sea

Activists protest in front of the Chinese Consular Office in Manila on June 10. They shouted slogans against China’s reclamation and construction activities in the South China Sea. (Noel Celis/AFP/Getty Images)

BEIJING — The latest was Kenya. Before that: Lesotho, Vanuatu and Afghanistan.

The list of countries backing Beijing’s stance in the South China Sea just keeps growing — China’s Foreign Ministry boasted last week that nearly 60 had swung behind the country’s rejection of international arbitration in a case brought by the Philippines.

The numbers are questionable, and the idea of gaining the support of distant, landlocked Niger in a dispute about the South China Sea could seem faintly ludicrous.

Yet China’s frantic efforts to rally support ahead of a ruling from an international tribunal in The Hague may not be as meaningless as they might seem. Cold, hard Chinese cash and what many see as American double standards are undermining efforts to build a unified global response to Beijing’s land reclamation activities in the disputed waters and employ international law to help resolve the issue.

The lure of Chinese money is having an impact in the Philippines, where President-elect Rodrigo Duterte has made wildly contradictory comments on the issue but has suggested some openness to bilateral negotiations — if China builds railways there.

A farcical display of disunity from the Association of Southeast Asian Nations was another case in point. On Tuesday, China sensed a mild rebuke when ASEAN appeared to issue a statement expressing “serious concerns” over rising tensions in the South China Sea, urging restraint in land reclamation and full respect for international law.

Within hours, the statement had been retracted for “urgent amendments.” No revised statement ever emerged.

Beijing, experts said, was riled because the statement was issued at a meeting held in China and at a sensitive time in the run-up to the arbitration ruling, expected anytime in the next three months. It was withdrawn after China lobbied close ally Laos, an official at the talks told Bloomberg News.

Ian Storey, a senior fellow at the ISEAS-Yusof Ishak Institute in Singapore, called it another “embarrassing” episode of ASEAN disunity.

“China didn’t create the disunity in ASEAN, but it does exploit the divisions and uses its economic clout to try to get its way,” Storey said. “China didn’t want ASEAN to in any way support the arbitration process.”

The Philippines took China to court in 2013 after the Chinese navy seized control of Scarborough Shoal, set amid rich fishing grounds off the main Philippine island of Luzon. Among other things, it wants the court to rule on whether China’s “nine-dash line” — under which it claims most of the South China Sea — is consistent with international law.

China vehemently rejects arbitration and says it will ignore the court’s rulings. It argues that the Philippines had previously agreed to settle the dispute bilaterally and that the court has no jurisdiction over issues of territorial sovereignty.

Julian Ku, a professor of constitutional law at Hofstra University, says Beijing has “a very weak” case. The court, he points out, has already spent a year considering the question of jurisdiction and ruled that it does have the authority to consider many of the issues raised by the Philippines.

“While I have expressed strong criticism of the Philippines’ use of arbitration (and the U.S. role in supporting it) from a strategic perspective, I don’t have any such criticism of their legal arguments,” Ku wrote in a blog post. “China’s claim that it can legally ignore the pending arbitral award is not only wrong, it is legally insupportable.”

The weakness of China’s legal case may explain the vehemence of some of its propaganda. Officials portray China as the victim of a “vicious” and deceptive legal case. They accuse the United States of militarizing the region through President Obama’s strategic rebalance to Asia and encouraging Asian nations to seek confrontation with China.

“The U.S. cannot tolerate others challenging its global hegemony,” China’s ambassador to ASEAN, Xu Bu, wrote in the Straits Times, calling Washington “dictatorial and overbearing.”

But legality is only part of the argument, since the court is not in a position to enforce any rulings. In the end, the matter will be settled militarily, in the chess game of global power relations or in some notional court of global public opinion.

And this is where American double standards come in. Despite efforts by the Bush and Obama administrations, the Senate has never ratified the United Nations Convention on the Law of the Sea (UNCLOS).

So when the United States, the European Union and Japan urge China to respect a “rules-based” international system, the admonishments often come across here as insincere.

Japan, experts point out, has ignored a 2014 ruling from the International Court of Justice (ICJ) against its whaling operations, and the United States ignored a 1986 ICJ ruling against the Reagan administration’s support for contra rebels in Nicaragua.

“More importantly, because the United States has never ratified UNCLOS, countries that have maritime disputes with it are unable to take it to legal arbitration,” said Storey, arguing that the issue has become “even more glaringly apparent” in the run-up to the ruling.

Although the U.S. government says it follows UNCLOS as “customary international law,” its failure to submit itself formally to its provisions rankles many nations — especially China.

“China is trying to emulate components of American exceptionalism that place the U.S. above other nations and international law,” said Yanmei Xie, a senior analyst at the International Crisis Group. “The U.S. not ratifying UNCLOS just proves China’s point.”

Wang Dong, an associate professor in the School of International Studies at Peking University, underlined China’s frustration with American “hypocrisy.”

“Big powers rarely subject themselves to international law,” he said. “That’s the reality we have to face.”

Aside from Russia, experts note that none of China’s supporters are major maritime powers, and some question Beijing’s tally. The Center for Strategic and International Studies (CSIS) says that only eight countries have explicitly supported China’s position, while Cambodia, Slovenia and Fiji have disavowed China’s description of their views.

“The 60-country claim is complete nonsense,” said Gregory Poling, head of the Asia Maritime Transparency Initiative at CSIS. “The vast majority have made very vague comments — in support of peaceful resolution or that negotiations are the best way to deal with conflict — and China takes that and says, ‘See, they side with us in the arbitration.’ ”

Nevertheless, China’s ability to get poorer countries on its side could be important if the issue ever comes up at the United Nations.

“China can also portray this as the West against the Third World, of the developed world bullying the developing world,” Xie said. “The narrative matters.”

But however the arbitration panel rules — and however Manila reacts — China won’t be giving an inch on its territorial claims in the South China Sea. A move to declare an Air Defense Identification Zone — under which foreign planes would be asked to inform Chinese authorities before entering airspace above the South China Sea — would be seen as provocative and seems unlikely for now, but Beijing won’t be letting up in its drive to expand its military presence in the South China Sea, experts say. That spells more tension with the United States.

Emily Rauhala and Xu Jing contributed to this report.

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