Maritime and Territorial Disputes in the South China Sea: Faces of Power and Law in the Age of China’s Rise 2020043876, 2020043877, 9780367476854, 9781003035855

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Maritime and Territorial Disputes in the South China Sea

This edited volume rethinks the relationship between power and law in the age of China’s rise by examining recent developments in the South China Sea (SCS). The contributors explore different interpretations of international law on the legal status of the contested islands and rocks and provide detailed analyses of the contested concepts and provisions, the 2016 ruling by the SCS arbitration tribunal, as well as the environmental, economic, and political impacts of the ruling. This book facilitates a more meaningful and productive dialogue over the intersection, interaction, and interdependence between power and law in the context of the SCS. Assessing the interactions between political, legal, and normative forces, it provides insights into the specific dynamics of the dispute and the shifting security landscape in the region, but also offers a basis for thinking more deeply about the broader rise of China. This book will appeal to both students and scholars of IR, International Law, and Asian Studies and those engaged in research on the SCS disputes, the rise of China, and with a theoretical interest in law and power in international affairs. Yih-​Jye Hwang (PhD, Aberystwyth) is Assistant Professor of International Relations at Leiden University in the Netherlands. Edmund Frettingham (PhD, Aberystwyth) is Assistant Professor of International Relations at Leiden University in the Netherlands.

Rethinking Asia and International Relations Series Editor –​Emilian Kavalski, Li Dak Sum Chair Professor in China-​Eurasia Relations and International Studies, University of Nottingham, Ningbo, China

This series seeks to provide thoughtful consideration both of the growing prominence of Asian actors on the global stage and the changes in the study and practice of world affairs that they provoke. It intends to offer a comprehensive parallel assessment of the full spectrum of Asian states, organisations, and regions and their impact on the dynamics of global politics. The series seeks to encourage conversation on: •

what rules, norms, and strategic cultures are likely to dominate international life in the ‘Asian Century’; • how will global problems be reframed and addressed by a ‘rising Asia’; • which institutions, actors, and states are likely to provide leadership during such ‘shifts to the East’; • whether there is something distinctly ‘Asian’ about the emerging patterns of global politics. Such comprehensive engagement not only aims to offer a critical assessment of the actual and prospective roles of Asian actors, but also seeks to rethink the concepts, practices, and frameworks of analysis of world politics. This series invites proposals for interdisciplinary research monographs undertaking comparative studies of Asian actors and their impact on the current patterns and likely future trajectories of international relations. Furthermore, it offers a platform for pioneering explorations of the ongoing transformations in global politics as a result of Asia’s increasing centrality to the patterns and practices of world affairs. For more information about this series, please visit:  www.routledge.com/​ Rethinking-​Asia-​and-​International-​Relations/​book-​series/​ASHSER1384 Recent titles The Asian Infrastructure Bank Power, Interests and Reputation Ian Tsung-​yen Chen Maritime and Territorial Disputes in the South China Sea Faces of Power and Law in the Age of China’s Rise Edited by Yih-​Jye Hwang and Edmund Frettingham

Maritime and Territorial Disputes in the South China Sea Faces of Power and Law in the Age of China’s Rise Edited by Yih-​Jye Hwang and Edmund Frettingham

First published 2021 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2021 selection and editorial matter, Yih-​Jye Hwang and Edmund Frettingham; individual chapters, the contributors The right of Yih-​Jye Hwang and Edmund Frettingham to be identified as the authors of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-​in-​Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-​in-​Publication Data Names: Hwang, Yih-​Jye, editor. | Frettingham, Edmund, editor. Title: Maritime and territorial disputes in the South China Sea: faces of power and law in the age of China’s rise /​ edited by Yih-​Jye Hwang and Edmund Frettingham. Description: Milton Park, Abingdon, Oxon; New York, NY: Routledge, 2021. | Series: Rethinking Asia and international relations | Includes bibliographical references and index. Identifiers: LCCN 2020043876 (print) | LCCN 2020043877 (ebook) | ISBN 9780367476854 (hardback) | ISBN 9781003035855 (ebook) Subjects: LCSH: South China Sea–International status. | Territorial waters–Southeast Asia. | Maritime boundaries–Southeast Asia. | China–Boundaries. Classification: LCC KZA1692.M37 2021 (print) | LCC KZA1692 (ebook) | DDC 341.4/​480916472–dc23 LC record available at https://​lccn.loc.gov/​2020043876 LC ebook record available at https://​lccn.loc.gov/​2020043877 ISBN: 9780367476854 (hbk) ISBN: 9781003035855 (ebk) Typeset in Times New Roman by Newgen Publishing UK

Contents

List of contributors  Introduction 

vii 1

YI H - ​J YE H WA N G A N D ED MU N D FR ETTI N G HAM

1 The rebalance under the Obama administration: Transformational leadership and selective engagement 

24

TAN G U Y ST RUY E D E SWI ELA N D E

2 ‘The Dialogue of East and West’: Joseph Needham revisited 

45

BART D E S SE I N

3 Sovereignty and identity: Taiwan’s claims in the South China Sea 

69

YI H - ​J YE H WA N G A N D ED MU N D FR ETTI N G HAM

4 Power, international law, and the Philippine hedging strategy in the South China Sea 

91

C H I H -​MAO  TAN G

5 Japan, China and the territorial disputes in the China Seas: The uncertain dynamics of Asian-​Pacific geopolitics 

116

E L E NA ATANASSOVA -​C O R N ELI S

6 All at sea? Japanese conceptions of regional order in response to the South China Sea disputes  L I N D SAY  B L AC K

137

vi Contents

7 Whose ‘freedom of navigation’? Australia, China, the United States, and the making of order in the ‘Indo-​Pacific’ 

160

C H RI S T I AN  WI RTH

8 Reflections on the awards concerning the legal status and maritime entitlement of maritime features in the South China Sea Arbitration: A legal and political analysis 

188

XU  QI

Index 

218

Contributors

Editors Yih-​Jye Hwang (PhD, Aberystwyth) is Assistant Professor of International Relations at Leiden University in the Netherlands. His research focuses on culture and identity politics in East Asia, East Asian approaches to human security, China’s strategic and just war thinking, post-​Western IR, post-​ structuralism, and theories of nationalism. He has published widely on politics and international relations in the Asia-​Pacific region. Edmund Frettingham (PhD, Aberystwyth) is Assistant Professor of International Relations at Leiden University in the Netherlands. His research interests include IR and security theory, global IR, and religion in world politics.

Authors Elena Atanassova-​Cornelis is Senior Lecturer in International Relations of East Asia. She teaches in the Department of Politics, University of Antwerp, and the School of Political and Social Sciences, Université Catholique de Louvain. She is also Visiting Professor at the Brussels School of International Studies, University of Kent. Her research interests and expertise include Japanese foreign and security policy, alignments and major power relations in the Asia–​Indo-​Pacific region, geopolitics and regional security cooperation in Asia, and EU–​Asia security relations. Lindsay Black is Assistant Professor in the International Relations of East Asia at the Leiden University Institute for Area Studies (LIAS) in the Netherlands. His most recent major publication is Japan’s Maritime Security Strategy –​The Japan Coast Guard and Maritime Outlaws (Palgrave MacMillan, 2014), and he has published numerous articles and book chapters on the international relations of East Asia. Tanguy Struye De Swielande is Professor in International Relations at Université Catholique de Louvain (Belgium) and Director of the Centre

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viii Contributors for Studies in International Crises and Conflicts (CECRI). His research interests are US–​ China relations, geopolitics, power politics, middle powers, and the Indo-​Pacific region. Bart Dessein (PhD, Oriental Languages and Cultures, Ghent University, 1994) is the head of the research group ‘East Asian Culture in Perspective: Identity, Historical Consciousness, Modernity’ of Ghent University. This research group focuses on early modern Chinese philosophy and history, two topics on which he has published extensively. Chih-​Mao Tang is Assistant Professor in the Department of Political Science, Soochow University, Taiwan. His main research interests are international relations of the Asia-​Pacific region, international political economy, conflict, and cooperation. His most recent publication is Small States and Hegemonic Competition in Southeast Asia:  Pursuing Autonomy, Security and Development amid Great Power Politics (Routledge, 2018). Christian Wirth is Research Fellow at the German Institute for Global and Area Studies in Hamburg and Adjunct Research Fellow at the Griffith University Asia Institute in Brisbane. He is author of Danger, Development and Legitimacy in East Asian Maritime Politics: Securing the Sea Securing the State (Routledge, 2018). Xu Qi is a lecturer in the law school of Jinan University, China. He obtained his doctoral degree from the University of Groningen. His main research interests are international law, law of the sea, and the South China Sea. He has published several articles in international journals, including the Chinese Journal of International Law and Ocean Development & International Law.

Introduction Yih-​Jye Hwang and Edmund Frettingham

This edited volume rethinks the relationship between power and law in the age of China’s rising power by examining some recent developments in the South China Sea (SCS) after the UN arbitration. During the past decade, the SCS has become a theatre for great-​and middle-​power rivalry and a test of the utility of international law in managing and resolving disputes. The Obama administration’s ‘pivot to Asia’ gave China notice of the United States’ commitment to the status quo in the SCS. Sending aircraft carriers and military planes near Chinese-​held islands in ‘freedom of navigation operations’, the US framed its actions in terms of international law, as defending a set of basic rules of regional international order that benefit all states. China responded by pressing its claims on the territory through constructing artificial islands and installing drilling rigs. It also provocatively disputed the judgement of an international tribunal in The Hague in July 2016 that ruled overwhelmingly in favour of claims by the Philippines to rocky outcrops in the SCS. The US President, Donald Trump, signalled his intent to take a hard line on the issue during his presidential campaign, and his nominee for Secretary of State, Rex Tillerson, promised in January 2017 that the United States would prevent China from accessing islands it claims in the SCS. The CCP-​ owned newspaper, Global Times, reacted to his remarks by warning that any move to blockade the islands could provoke a ‘large-​scale war’. In the first year of his administration, though, Trump’s attention was focused on other issues, and the SCS was not high on the agenda. China has taken advantage of the Trump administration’s focus on North Korea to continue its civilian and military building projects on the disputed islands and reefs. In the meantime, the US has taken little substantive action, beyond increasing its freedom of navigation operations. The situation remains tense though: at the time of writing, there are signs that the Chinese are adopting more confrontational tactics during encounters with US naval vessels around the islands, while the US and China have been embroiled in a trade war for the past three years. The territorial disputes in the SCS have thus remained a potential flashpoint in world politics, and the topic has accordingly attracted serious attention from scholars, policy makers, and commentators. Of the many

2  Yih-Jye Hwang and Edmund Frettingham edited volumes and monographs on the subject, a number offer excellent general introductions to the interstate dimensions of the dispute (Raine and Le Mière 2013, Huang and Billo 2014, Buszynski and Roberts 2015, Jenner and Thuy 2016, Hsieh 2018) and the perspectives and roles of non-​state actors (Spangler et al. 2018). Much of the literature on the topic takes either power or law as its central organizing concept. These themes are sometimes treated in relative isolation from one another (e.g. Hong 2012, Buszynski and Roberts 2015, Hsiung 2018). But even when both strategic competition and legal claims are included in the analysis, studies are often implicitly organized around one of these problems in their understanding of what the dispute is ultimately about. Thus, on the one hand, a number of studies have viewed the conflict through the lens of realist international relations theory (Daniels 2014, Hayton 2014, Kaplan 2014, Fels and Vu 2016, Roy 2016, Storey and Lin 2016, Corr 2018, Hawksley 2018). These works suggest that such regional tension is a predictable consequence of a rising power (i.e. China) strengthening within the sphere of influence of the existing great power (i.e. the US). Realists of all persuasions are apprehensive about China as a rising power in the international system, given the heightened risk of war they anticipate in such a situation. They disagree over whether these circumstances are likely to lead to war, or whether it will naturally stabilize over time through a rebalancing of power, but they agree that regional order is a function of material power. Others have been primarily concerned with the international legal dimensions of the dispute (Jayakumar et al. 2014, 2018, Song and Zou 2014, Talmon and Jia 2014, Tran and Le 2015, Wu et al. 2015, Wu and Zou 2016, Borton 2017). This work explores different interpretations of international law on the legal status of the contested islands and rocks, and provides detailed analyses of the United Nations Convention on the Law of the Sea’s (UNCLOS) (contested) concepts and provisions, the 2016 arbitration case itself, as well as the environmental, economic, and political impacts of the ruling. Apart from a few works (e.g. Talmon and Jia 2014, Wu and Zou 2016) that aim to offer Chinese perspectives on some of the legal issues pertaining to the territorial disputes of the SCS, many other works in this body of literature argue that China is a rule-​violating state at present. For this literature, the dispute is ultimately about maritime entitlement and delimitation, and competing claims to sovereignty over maritime features in the SCS. This divergence of focus is partly a specialization resulting from the disciplinary division of labour: international lawyers explore the legal significance of the dispute, while IR theorists are better positioned to explain its strategic and geopolitical aspects. Such specialization is obviously necessary for the advance of knowledge and for thorough and rigorous criticism of what we think we know. But specialization often leads to abstraction, which has its own costs. For example, the relative neglect of the international legal dimensions of the conflict by strategic thinkers in IR reflects the movement towards more parsimonious, abstract theories of state behaviour in neorealism.

Introduction  3 International law had some significance for classical realists, such as Hans Morgenthau, but they regarded it as strictly limited in its power to restrain strong states. International law reflects the interests of the most powerful states in the system, Morgenthau argued, but it will only be obeyed when it aligns with their respective interests. In most cases, states do have an interest in upholding the system because they also benefit from a rule-​governed order. But they won’t comply with international law if they believe it may give other states a relative power advantage that could ultimately endanger their security (Morgenthau 1960, pp. 295–​296). The world has no global Leviathan that can enforce compliance with international law, and material power is an unavoidable reality of international relations. If this view is correct, then arguments about the international legal status of maritime features in the SCS have limited importance and may even be another theatre of geopolitical struggle; the real questions concern the distribution of hard power in the region and the strategies adopted by rival states. With the rise of neorealism, classical realism’s limited and sceptical interest in international law became a casualty of the naturalist desire to strip away all extraneous clutter from theories of international relations. The merely conditional significance of international law meant it had bearing on the most fundamental processes of international political life. Law may be an important feature of domestic politics, but the international realm is one in which ‘power, struggle and accommodation’ are the only relevant phenomena in the long term (Waltz 1979, p. 113); law could safely be left out of the most powerful explanations of state behaviour. International lawyers have not been blind to power, but they do often work on the assumption that international law has its own independent efficacy as a constraint on state behaviour. They point out that it is widely regarded by states as binding, and is often complied with, even in situations when it conflicts with the perceived self-​interest of the state. Those well-​publicized cases in which states break international law are the exception rather than the rule. International law must only be perceived as legitimate by states for it to be an effective constraint on state behaviour (e.g. Franck 1988). Once this case has been made, international lawyers can proceed with their core tasks of parsing the emerging and evolving regimes of international law, in abstraction from geostrategic and power–​political concerns that can be left to the political scientists. Thus, even if realist theorists recognize the quotidian significance of international law, and lawyers are conscious that power is always present in relations between states, they have produced quite different literatures about the SCS conflict that take for granted certain understandings of the relationship between power and law in the dispute. Their different disciplinary locations, the prevailing theoretical assumptions in each field, and the scholarly and institutional pressure to specialize, have all played a part. Strong arguments can be made for both specialization and abstraction, but notwithstanding the gain in sophistication and rigor that can often follow, there

4  Yih-Jye Hwang and Edmund Frettingham are two problems with the exclusive pursuit of these approaches. One is that these are not the only ways of thinking about power and law; there are a number of other sophisticated theoretical perspectives on their relationship in the IR literature that may enrich our understanding of the SCS dispute. If we follow liberal and constructivist traditions, for example, we might argue that the future direction of the dispute will be shaped as much by the interaction between strategic and legal agendas as by factors internal to them. A second problem is that we risk distorting our understanding if we always treat the relationship between law and power as a theoretical axiom rather than an empirical question. The social world is only ever half predictable, and what is generally true may not always hold in particular circumstances. By attending to the actual political and legal practices that have brought us to this point, the pre-​judgements we derive from our theoretical frameworks may be confirmed, but we may also find that the realities of the SCS situation force us to revise our preconceptions. This does not mean setting aside our theoretical frameworks, so much as holding them open as always provisional. This edited collection aims to explore these themes in relation to several important recent developments that have affected the SCS disputes. It provides a forum in which a more meaningful and productive dialogue pertaining to the intersection, interaction, and/​or interdependence between power and law in world politics in the context of the SCS can be conducted. In the remainder of this introduction, and before we summarize the contributions of the chapters that follow, we develop in more detail our claim that further perspectives from international relations theory could provide useful resources in this discussion.

Perspectives on the connections between power and law in IR theory Resources for thinking further about the connections between power and law exist in abundance. Liberal institutionalists, for example, agree that international law has its origins in the interests of states, but disagree with the realist contention that military-​strategic interests always come first and that international law is merely an instrument of the interests that sustain it. State support for international rules, norms, and laws reflects economic interests as well as geopolitical and strategic interests, they propose, and once legal regimes are in place they can play an independent role in shaping state behaviour in ways that may conflict with states’ short-​term interests, as well as fostering habits of cooperation that can spill over into the peaceful resolution of more militarized disputes (e.g. Keohane 2003, pp. 117–​189). Liberal institutionalists argue that the political dynamics created by complex interdependence can have a restraining effect on how states pursue their military security interests and reduce the utility of military force as an instrument of policy (Keohane and Nye 2012). States are mutually dependent on flows of money, goods, people, and communication across borders, and all involved in such exchanges lose out if they are interrupted. At the same time, habits of cooperation developed around non-​military issues can promote

Introduction  5 more cooperative action around military security. Some have argued on this basis that peaceful evolution of the SCS disputes is a more likely outcome than open warfare. War would disrupt the growing networks of transnational economic production and exchange in the region, and cooperation around non-​military issues is encouraging the development of less militarized forms of dispute management, such as the Association of Southeast Asian Nations (ASEAN; Magcamit and Tan 2016). Liberal institutionalism offers other reasons for believing that international law may have a more independent role to play in the disputes than realists allow because it draws our attention to the incentives for compliance that make international law effective in constraining state behaviour. Economic interests are often better served by cooperation rather than confrontation, and cooperation is most efficient and effective when it is supported by regimes of principles, rules, and institutions that reduce uncertainty and transaction costs and promote trust between states. States bound in relations of mutual dependency by transnational social and economic relations have an interest in maintaining international regimes, of which international law is a formalized example. Through complying with them and sanctioning states that don’t comply, even if breaking the rules would be more beneficial in the short-​term, states maintain the regimes that benefit them over the longer term. States that break the rules risk damage to their reputation that will make other states reluctant to cooperate with them, and they face the more general problem of retaliatory rule-​breaking by other states that will undermine mutually beneficial regimes and make cooperation around other issues harder in the future (Keohane 1984, pp.  98–​106). States therefore have an interest in working within the constraints of international law, because lawless behaviour risks spill-​ over damage to the law-​ governed regional order that their welfare depends on in other respects. There is no suggestion here that rule governed cooperation will always prevail over lawless strategic manoeuvring. Writers such as Keohane and Nye are careful to point out that in some situations, realist power politics will be more prominent, while in others, the cooperative behaviour explored by neoliberal theory will be more evident (Keohane and Nye 2012, p.  20). Self-​interested behaviour can issue in law-​governed international cooperation as well as power politics. If liberal institutionalists are correct in saying that all particular interstate relations exist somewhere on a continuum between militarized strategic rivalry and rule-​bound cooperation, power and law are not so easily separated. If militarized strategic competition is but one political logic at work in the SCS –​existing alongside and in tension with laws, rules, and norms –​a new set of questions about their relationship emerges. It still makes sense to ask about the strategic choices China and other states face and what international legal rights and duties they have. But we should also ask how and to what extent these choices and concerns shape one another; why and how hard power or legal strategies are advocated by policymakers and chosen by

6  Yih-Jye Hwang and Edmund Frettingham states; what consequences they have for the states concerned and the region. On a more abstract level, we might ask how far legal and normative concerns intrude on the struggle for power in the SCS, and how far power politics are implicated in the legal and normative claims pursued. Liberal institutionalists view these questions through the lens of interest, no less than realists do. They agree that states may in some rare circumstances be motivated by moral considerations that take priority over their self-​interest, but these instances of altruistic behaviour exist only on the fringes of international life, while rational egotism is the norm (Keohane 1984, pp. 120–​130). The question of whether power politics or cooperative, rules-​based action wins out comes down to self-​interested calculations of costs and benefits. To understand international conflict in the SCS entirely in terms of abstract, universal rationality may miss important dimensions of the dispute though. This is a point of difference between the English School and liberal institutionalism. The English School agrees with the latter that legal and normative–​ moral principles matter, arguing that such rules bind states together in a limited form of society. But for Hedley Bull, as for Martin Wight, to understand international cooperation entirely in terms of abstract, universal rationality (or subjective, emotional deviations from rationality) is to miss the historical and cultural forces that have shaped how states have come to understand their interests, values and purposes in ways that commend cooperation with other states (Hurrell 2012, p. xxii). The very fact that the current international order has international law as one of its institutions, Bull argued, is a legacy of Western Christendom in which law –​Roman, canon, natural, and revealed –​ was an especially important social institution; international order can also be organized around other kinds of authoritative moral and religious principles (Bull 2012, p.  137). The law itself, in domestic and international contexts, reflects the moral, social, and political ends and values of its framers, and these also influence decision-​making within the legal system and about its rules (Bull 2012, p. 132). In some instances, states comply with international law from coercion by more powerful states intent on enforcing it; in many other instances, they comply from an interest they have in reciprocal compliance by other states. But another powerful motive for compliance, even if it is not the primary motive, is when the law is seen as valuable as an end in itself or as the route to realization of other values. These can be ‘interests’ in the blunt materialist sense, but they can also be less tangible moral principles and values (Bull 2012, p. 136). The rules of international society, and compliance with those rules, can therefore be partly explained by the operations of power and calculations of self-​interest, but such explanations can’t be exhaustive. Moral principles and the contingent historical and cultural commitments of particular peoples have also shaped contemporary international society, and they continue to shape the actions of states. The English School perspective suggests the importance of looking not only at the interplay between power and law in the

Introduction  7 South China Sea disputes, but also the forms of instrumental, ethical, and cultural–​religious rationality that informs political action in the SCS disputes. The English School’s interest in the cultural and religious background of international society raises more specific questions about the political significance of cultural difference that are relevant to both China’s rise and the SCS dispute. In the English School, these questions arose in a debate about the relationship between international order and shared culture. This question does not interest realist scholars, for whom international order is primarily a product of the distribution of material power, or for liberal institutionalists, who assume that order can be founded purely on rational egotism. The English School rejects these assumptions, arguing instead that international society is social in a much thicker sense than either realists or liberals allow. But they have disagreed on the extent to which shared language, culture, and religion are necessary preconditions of cooperation between states. Martin Wight observed that all the best known historical instances of states forming norm-​ governed societies  –​in ancient China, the ancient Greek Mediterranean, and the modern Western states system –​developed within a common culture (Wight 1977, pp. 33–​35). For Wight, this raised the question of whether states will only agree on the rules and principles of an international society if they are grounded in a common religious or moral culture. Later scholars have followed the more rationalist Hedley Bull in doubting that a common culture is necessary. For Bull, a shared culture will strengthen the sense of common interests, but international society itself only needs a pragmatic recognition of the value of a rule-​governed order, combined with a thin elite culture of diplomatic norms and practices (Bull 2012, pp. 304–​305). The contemporary significance of this debate over the relative significance of shared culture and pragmatism derives from China’s increasing desire to emphasize its distinctive cultural values and political traditions. From an English School perspective, we might ask whether international society can absorb, without any significant change to its central institutions and rules, a new great power keen to emphasize its cultural difference from the states that created and maintained this order. If Bull is right that international order can be sustained primarily on a pragmatic and self-​interested acknowledgement of the mutual benefits that flow from a more ordered, rule-​governed world, the necessary adjustments to that order are likely to be less radical. If Wight is correct that culture has a greater significance in holding international society together, however, China’s assertion of cultural distinctiveness may have more radical implications. And conversely, the rules and principles of international society will be less of a constraint in the SCS disputes than we might expect if Bull is correct. This English School framing is one way of understanding the current debate over the question of whether China is a status-​quo or revisionist power. At the heart of this debate are the questions of what kind of international order China wants, and how it is likely to pursue it. Barry Buzan’s typology of great powers provides a useful orientation to the debate. He identifies four kinds

8  Yih-Jye Hwang and Edmund Frettingham of great powers based on the degree to which they conform to international law: status-​quo powers, orthodox revisionists, reformist revisionists, and revolutionary revisionists. According to Buzan (Buzan 2014, p. 387, 2018, p. 13), status-​quo powers are ‘generally happy with both the rules and the status distribution of the prevailing international society’. Orthodox revisionists are ‘generally happy with the rules, but wanting changes in the distribution of status’. Reformist revisionists pursue ‘changes in the rules, but doing so mainly within the existing diplomatic framework of international society’. And finally, revolutionary revisionists want ‘to change both the rules and the status hierarchy, and prepared to resort to fair means or foul’. In the IR literature, some scholars have claimed that China, after Mao’s period, has become a status-​quo power (Johnston 2003). As such, if we follow Buzan (2018), China is supposed to conservatively support ‘nearly all of the accepted institutions of Global International Society’ –​including international law –​even though it might be uncomfortable with efforts to embed liberal Western priorities, such as democracy, human rights, and environmental protection, as norms of international society (p.  14). Buzan notes that, from China’s perspective, ‘it is the liberal West that is aggressively revisionist, seeking to impose its liberal values on the rest of the world’ (ibid.). Indeed, China has shown that it has a strong desire to have a good standing in the international community and its diplomats have worked hard to build its reputation as a good global citizen and a regional unifier. As Ikenberry (2008) argues, ‘China . . . [is] rising up inside rather than working around the rules and institutions’ of international relations. What is meant by this is that by being members of numerous international institutions (like the UN, WTO, IMF, and World Bank), China is showing that its intentions are not conflict-​oriented and its main ambition is integrating as much as possible into the international community to ensure political and economic stability, not only in China itself, but also in the region. China quite clearly accepts the established principles of international society through its conflict avoidance and reliance on diplomatic tools. This is taken further with its recent actions that deepen China’s commitment to strengthen international institutions. In the context of the SCS, while China rejected an attempt to solve the dispute through the Philippines’ appeal to the Permanent Court of Arbitration (PCA), it remains open to the bilateral approach and interparty diplomacy in order to avoid conflict. An example is the 2002 ASEAN–​China Declaration on the Conduct of Parties (DOC) in the SCS, which includes not only non-​violent resolution, but also international law and self-​restraint (Davenport 2017, pp. 52–​53). In 2004, the two parties came together and set up the ASEAN–​ China Joint Working Group on the Implementation of the DOC to provide recommendations that would put the DOC into concrete practice. In 2011, China and the ASEAN adopted the Guidelines for the Implementation of the DOC, which state that a step-​by-​step approach will be used to implement the DOC and this will ultimately lead to a legally binding Code of Conduct (COC; ibid.). The 2017 ASEAN Summit in Manila, hosted by Rodrigo Duterte in

Introduction  9 May 2017, made progress in the crafting of a framework for a COC on the SCS, a move China has announced it supports. In August 2018, China and the ASEAN arrived at a single draft negotiating text of the COC in the SCS, which will serve as a basis for future COC negotiations. Although it remains uncertain if and when this legally binding Code will be realized, the DOC still prompts the critical question of how China is responding to the current international order, and whether the shift from bilateral to multilateral negotiation signifies a change in China’s attitude to normative, legal, and power–​political aspects of regional and international order. Meanwhile, other scholars dispute that China is a status-​quo power. This body of literature contends that China, like all rising powers, is in practice likely to challenge the existing international order, with its conservative laws, norms, and institutions. As noted by Buzan (2018), ‘the flaw in the status quo designation is that while China broadly accepts the institutional structure of global international society, it certainly wants to increase its status, which makes post-​Deng China at least orthodox revisionist’. This has been particularly true of Xi Jinping’s administration, whose policies have indicated an interest in changes to the global distribution of power and current practices of great power management, along with a desire to resolve territorial disputes on this basis (Buzan 2014, p. 394, 2018, p. 14). China is thus moving towards a reformist-​revisionist challenge to the rules of international society. Orthodox or reformist-​revisionist tendencies have been especially evident in China’s relations with international organizations. China has been participating in an increasing range of international regimes and institutions since the 1980s, becoming a significant player in the main international organizations, including the World Bank and IMF (Wang 2018). How deeply China has been socialized into the international order is open to question, though. China has not fully adopted and internalized the norms and values of the Western international order, even as it works within the institutional frameworks of that order (Kent 2002, Johnston 2008, Acharya 2011). Wendt’s social constructivism is useful here, in particular, his hypothesis about three degrees to which actors are socialized into observing norms (Wendt 1999, p.  250). The first is compliance with norms because non-​compliance may bring punishment. Actors in this case do not act because they accept the norms’ legitimacy, nor because they believe there are substantial benefits for them in compliance. China experienced this first degree of internalization with the partial colonization by the West and the treaties they imposed. At the other end of the scale is compliance because norms are believed to be legitimate. Actors internalize the norms and identify who they are through observance of these norms. Those who regard China as a revisionist power argue that its involvement with international regimes has not reached this third degree of internalization, but is better described in terms of Wendt’s second image, in which actors conform to norms because they see it as being in their interest. This instrumental acceptance has characterized China’s international relations since its rise to economic power in the 21st century. China wants to

10  Yih-Jye Hwang and Edmund Frettingham decrease the influence of Western powers in international politics, but they propose that this be done without direct political competition and conflict. Wang’s study of China–​IMF relations (Wang 2018) demonstrates the ways in which China has collaborated with the IMF in pursuing leadership in global governance of monetary policies to weaken the US dominance in the international monetary system. China wants ‘more authority and more of a role within [the] system, not some kind of global transformation’. Others agree. On a more general level, Buzan (2018, p.  8) writes, ‘China is also broadly happy with the classical, pluralist, “Westphalian” set of institutions that came out of early modern European international society:  sovereignty and non-​ intervention, territoriality, balance of power, great power management, war, international law, and diplomacy’. As Steinfeld (2010) succinctly puts it, China is ‘playing our game’. This game, Kent (2002) notes, may be self-​reinforcing, because involvement in international organizations does not only make it easier for states to transact with other states in pursuit of their interests. It can also push states into rethinking their interests or discovering new ones, and regulate their behaviour through habits of consensus and cooperation developed as they interact with other states (Kent 2002). Still, some observers believe that even if China is not yet the dominant power in East Asia, it will one day take (or re-​take) its position as the regional hegemon. In this scenario, China might become a revolutionary power, not only to challenge the United States’ military pre-​eminence and push the US out of in the western Pacific, but also to establish an alternative order based on its own cultural, ideological, and socioeconomic trajectories. Its advocates argue that China’s leaders and people have a strong aspiration to restore China as the dominant power in East Asia, and the aim of China’s grand strategy is some kind of regional hegemony in East Asia. For example, Breslin (2010) asserts that ‘Beijing is laying the foundations for a new regional order with China as the natural leader and the United States as the outsider’. China’s self-​promotion as a ‘different’ kind of power, one that does not seek to impose its own worldview, is not necessarily any indication that China has no aspirations for shaping the normative order of international society. Breslin argues that China’s self-​conception as a ‘responsible great power’, interested primarily in harmony and peace between states that are free to do what they want within their own sovereign territory, implies a certain normative conception of international order:  its ‘non-​normative ideology becomes a normative position in itself’. This line of speculation raises a set of interrelated questions: (1) what sort of hegemonic power would China become; (2) what kind of international order would China want; and (3) what role would international law play in this China-​centred world order in East Asia? Questions of hegemony are questions about the sources of power and the means of its exercise. Ian Clark (2011) approaches these questions with a useful distinction between ‘primacy’ and ‘hegemony’. For Clark, primacy is ‘grounded in material resources only’ whereas hegemony is ‘also grounded in legitimacy’. Legitimacy here refers to a social condition in which ‘the right

Introduction  11 of any actor to lead is acknowledged by a substantial group of followers’. Hegemony does ‘not reside simply in indices of concentration of material power, taken in isolation from societal responses to it’ (p. 6). Rather, hegemons must elicit ‘societal endorsement for their leadership initiatives’ (p. 6). Thus, hegemony is a social relationship that exists through its acceptance by the other members of international society. Material preponderance is a ‘necessary’ but not ‘sufficient’ condition. Leadership, as Clark argues, ‘is not just something that the hegemon “does” or “has”, but something that international society “sees” ’ (p.  19). Therefore, ‘only a normative account provides a convincing concept of hegemony in international society’ (pp. 23–​24). Hegemonic power thus involves both material/​coercive and normative power. Clark’s work exposes the limitations of materialist approaches in understanding relations between hegemonic and subordinate states, as well as the nature of conflict between a status-​quo power and a rising power. Analyses of hegemony often emphasize the material benefits that accrue to the hegemon, and the material motives other actors have for consenting to the hegemonic order; this is especially true of realist approaches (Layne 2006) but also of neo-​ Gramscian analyses, which tend to emphasize the measure of material benefit that secures the acquiescence of subordinated peoples (Cox 1983, 1987, 1996). Yet great powers claim and are given managerial responsibilities in relation to an international order whose laws and norms become one of the indispensable instruments to establish their great-​power status. Each great power accordingly has an incentive to agree to international laws, norms, and institutions, as long as it can be assured of involvement in the establishment of those regimes. As Lebow (2003, p. 283) rightly points out, a great power can exert its influence ‘through bribes or compelled by force’, but this way of obtaining influence is too costly and usually has a short life. A demonstrable commitment to rule and law is a more efficient and effective way to translate power into influence. Therefore, ‘hegemony is a juridical category dependent on the “recognition” of “rights and duties” and the consent of other states in the system’ (Simpson 2004, p. 70, quoted in Clark 2011, p. 27). Clark’s emphasis on the moral dimension of hegemony echoes a broader revival of interest in the role of norms in international relations. The English School approach developed by Clark was, for a long time, the only approach that retained a systematic interest in the normative dimension of international relations, after the decline of liberal idealism and the turn towards forms of scholarship modelled on the natural sciences. We have already referred to Wendt’s constructivism above, and it is constructivism that has engaged in the most thorough and sustained investigation of the role of norms in world politics. A vast body of research has explored how norms shape and constrain actors’ behaviour; how norms are diffused and adopted; and how new norms emerge and existing norms are altered and contested through argument and action (for an overview, see Hoffmann 2010). A related debate, influenced by this constructivist work, has explored the idea that norms can ground a distinctive mode for the exercise of power. The

12  Yih-Jye Hwang and Edmund Frettingham debate was initiated by a much-​discussed article by Ian Manners, who argued that European power was distinctive in two respects: firstly, it has primarily normative goals in that it aims to shape the behaviour of foreign actors in normatively desirable ways, rather than seeking purely selfish material advantage; and secondly, it pursues these goals through normative means, rather than relying on material military and economic power (Manners 2002). Manners (2002) described this phenomenon as ‘normative power’, ‘the ability to shape conceptions of “normal” in international relations’ (p. 239). The debate that ensued has generated fruitful lines of inquiry on the relationship between power and norms that can be usefully extended to East Asia. Manners’ originally developed the concept through an analysis of the EU and proposed that normative power is a distinctive feature of European external relations. Yet, as Thomas Diez pointed out, Europe is not unique in having normative influences and aims in its foreign relations, nor in projecting power through spreading its own norms. While the relative importance of normative, military, and economic power may vary, along with the means used to spread or impose certain norms, the question is not so much whether international actors display normative power but when, how, and how much they do so (Diez 2005). The concept of normative power, and Clark’s understanding of hegemony as a social relationship involving relations of consent and recognition between members of international society, offer useful ways to understand premodern regional order in East Asia. In the traditional tributary system before the encroachment of Western powers in the 19th century, the hierarchy of social relations was determined by the acceptance of China’s hegemony. China was regarded as the ‘Middle Kingdom’, and tributary relations were performed through a set of rituals and ceremonies, wherein tributary states were required to acknowledge China’s superiority by paying tribute to the emperor and adopting Chinese diplomatic etiquette and practices. In return, tributary states were able to trade with China through the legalization of controlled trade economically, and they received validation of their political power from the Chinese emperor politically. Here, a key element of this pre-​ modern, China-​centred hierarchical order is a social acceptance of China as hegemon by a substantial group of followers in East Asia. There are clear parallels here with the kinds of relationships Clark conceptualizes in terms of hegemony. As Zhang and Buzan (2012) note, The tributary system, in this sense, constitutes a social milieu not just of Imperial China’s own making . . . The tributary system is . . . also a bundle of fundamental institutions constitutive of a broad social order in East Asia. Only insofar as these fundamental institutions and common institutional practices become shared norms and conventions, constitutive of deep rules of the game in the relations between imperial China and other constituent states, does the tributary system constitute the social structure and become the articulation of international society in East Asia. (p. 18)

Introduction  13 They therefore conclude that: There was clear acknowledgment of the legitimacy of the authority of Chinese hegemony derived from its cultural achievements and not from material power. There was explicit . . . acceptance of the civilizational hierarchy and associated rank order for constituent states. (Zhang and Buzan 2012, pp. 25–​26) According to Zhang Chi-​hsiung (2014; see also Qin 2016, p. 38), this China-​ centred hierarchical order formed a pattern of interdependence, co-​existence, and co-​prosperity wherein the centre protected the periphery and the periphery was subordinated to the centre. The dependence of the traditional tributary system on social acceptance by a substantial group of followers has informed a sense of relatedness to others in China’s international relations. Chinese scholar Qin Yaqing has argued that social actors always actively make use of relational circles for instrumental purposes. They act ‘to achieve self-​interest, utilizing relational circles to facilitate the achievement of instrumental objectives’ in terms of both immediate tangible and material gains, as well as intangible and nonmaterial gains over the longer term. And above all, they act to maintain a social order in which individually different actors can live in harmony (Qin 2016, p. 38). Therefore, from this perspective, neither soft nor hard power is possessed by the actors, as most Western IR theorists usually presume, but rather it ‘comes from relations’. Relations are power. Moreover, relational power is closely connected to the term mianzi (face or reputation) in Chinese tradition. To have mianzi is to be powerful in changing the attitudes and behaviour of others to conform to one’s will. Power resides in the size of an actor’s relational circles, their closeness to others in their circles, and the prestige and social importance of those others. Accordingly, ‘the favour giver does not expect a symmetrical or reciprocal transaction in terms of material payoffs; rather she seeks social capital such as face/​reputation or merely desires reinforcement of the ties over long terms’ (Qin 2016, p. 42). Governance, in this respect, is ‘a process of negotiating socio-​political arrangements that manage complex relationships in a community to produce order so that members behave in a reciprocal and cooperative manner with mutual trust evolved over a shared understanding of social norms and human morality’ (Qin 2016, p. 43). Accordingly, China’s international behaviour is more concerned with its relational circles, incorporating more intimate and important actors into these circles and gaining more social prestige  –​or a ‘relational power’ –​to (re)shape the attitudes and behaviour of other states. That is to say, China seeks social acceptance of its hegemony by a substantial group of followers in East Asia. Clark’s notion of hegemony as grounded in social relations as well as material power thus provides a useful lens for understanding the tributary system. The claim that China is a hegemonic power (in Clark’s conception) depends on China assuming managerial responsibilities in world politics,

14  Yih-Jye Hwang and Edmund Frettingham as well as its self-​image as a normative power. As for the former, China has indeed intended to construct itself as a responsible and reliable international player and provide viable alternatives to models acceptable to Western actors and organizations. China’s recent mediating for the United States and the West with its formal ally, North Korea, could be interpreted as a deliberate self-​depiction as a more cooperative actor and responsible great power in international relations. If the concept of hegemony puts the accent on power more broadly, the concept of normative power draws our attention back to the specifically moral dimensions of international order. And in the Chinese understanding, relational power is always related to morality. Abstractly, true power as put forward in traditional Chinese philosophy comes from the ability to persuade others with moral principles and reason. This idea describes the right way to govern as the ultimate way to exercise morality through power. Morality is linked to the source of power as well as intentions in exercising power. As Yan Xuetong (2011) notes, within Chinese philosophy, humane authority is not something that one can strive for. Rather it is acquired by setting an example of virtue and morality, in other words, by exerting the soft power of persuasion and attraction of morality and virtue on the one hand, and the existence of hard power on the other. Yan argues that humane authority relies on a combination of soft power and hard power driven by morality and virtue. China’s self-​image as normative power is part of its political identity in international relations, but the stability of this understanding also depends in part on whether other actors perceive it in the same way. Recognition by others is a crucial condition of China being a normative power (Kavalski 2013). As Yan (2011, p. 238) notes, norms are ‘the behavioural standards observed by the majority’, not just by the dominant members of the international community. Accordingly, to shape conceptions of the normal, a normative power must be recognized by the majority of the international community, or its relational circles. As a result, when China becomes a hegemonic power in East Asia, it will claim (and be given) managerial responsibilities in relation to international order (like any other hegemon in history) as well as establishing its own relational circles. Recognition is not inevitably forthcoming however, and norm diffusion is not inevitable or one-​sided; hegemony and normative power always involve contest over the meaning and acceptance of the norms propagated (Diez 2012). The transformation of the normative structure of international society happens both parallel to and as a result of power struggle. In short, as discussed above, China cannot simply claim or reclaim its hegemonic status through its material power. As Zhang Yongjin (2015) rightly points out, [even] at a time when American power and political authority are pivotal to the establishment of an effective and legitimate global order, the United States as a global leader has experienced severe loss of its ‘hegemonic

Introduction  15 legitimacy’. This is particularly true in the wake of the US invasion of Iraq without the mandate of the United Nations Security Council. (p. 312) Likewise, China needs to command social acceptance of the legitimacy of its great power status. A  recognition of China as a normative power in international relations must fulfil three requirements:  ‘outsiders accept that a political entity is a power in world politics with a normative power role; a normative power possesses a clear norm-​set; and others must perceive a normative power’s practice to be in line with its own stated role and norms’ (De Zutter 2010, p. 1113). To do so, it is vital for China to (re)negotiate its relationship with the rest of the world, and engage with international legal rules, practices, and norms. There is certainly a clear contradiction between two dimensions of China’s recent strategy. One the one hand, China has assertively pursued its maritime and territorial claims in the SCS with a view to regional primacy; on the other, it has aspired to recognition and acceptance by the international community of its great and normative power status, a status that comes with the responsibility to manage and promote international order. Thus China has mounted selective and sometimes stiff resistance to adopting international law, disavowing the unfavourable ruling of the PCA on the issue, and yet has not withdrawn its recognition and legitimacy of international law as such. China’s continuation of the negotiation with the ASEAN over the COC in the SCS is one example of its acceptance of some aspects of the existing regime. What China has questioned is the universality of current international law. It has publicly articulated its discontent about the continued Western domination of the international legal regime, and has actively sought to increase its stakes and voice in the regime. If what China might do in the future would probably be mixed, then we still need to ask what institutions and rules of law China’s leaders will continue to support, and which ones they will seek to change. Complex interconnections between power and law may therefore be an integral dimension of China’s rise. Whether and how China will support key norms of international order and work within the international legal regime or try to replace them with Sinocentric alternatives remains unclear. But the goals China pursues and the way it proceeds –​whether it chooses confrontation, coercion, or persuasion –​will have crucial implications for the future of regional and global order. Just as crucial will be the choices made by other actors in the region about how they respond to China. It is neighbouring states, and the US as the current dominant power, that stand to be most directly affected by any move towards a Sinocentric regional order, but their actions also shape the normative and strategic conditions in which China must act. China’s assent to great power status naturally also depends on recognition by other states. The success of China’s attempts to gain recognition of its leadership and reshape political and legal order in the region will partly depend on acceptance by ASEAN member states, Japan, or Australia.

16  Yih-Jye Hwang and Edmund Frettingham The SCS dispute is a revealing case through which to reflect on the broader implications of China’s rise. Crucial questions about China’s understanding of its own power and the significance of the international legal order are found in microcosm in this dispute. The re-​emergence of the territorial disputes in the SCS provides us with a window into the kind of international order, both regional and global, China wants to promote, and how well other actors in the region and beyond might accept the key institutions promoted by China in the coming decades. The dispute also sheds light on the likely responses of the US, but also of middle powers with the capacity to influence norms and legal precedents as well as the strategic situation. Their responses to the SCS disputes are not only revealing of understanding the immediate issues at stake, but also of the broader relationships between international power, law, and norms in China’s rise and the kinds of institutions that may structure it. This edited volume therefore sets out to investigate why and how key regional actors have engaged with the SCS disputes, and what this might reveal about the relationships between law and power in East Asia’s evolving regional order. At the centre of this inquiry is China, but the US is also a vital actor, along with regional powers, such as Japan, the Philippines, and Australia. The questions we have focused on are: •

How far do China’s strategic and legal actions in the SCS dispute represent an acceptance of or a challenge to the legal, political, and strategic status quo in the region? • How has the US sought to maintain its hegemony in the region? • To what extent have China’s actions been accepted by the US and neighbouring countries, such as the Philippines, Japan, or Australia, and why? • What responses and strategies have China’s neighbouring countries adopted, and what impacts are they having on the regional legal and political orders with which other actors must reckon? In short, our aim is to explore the interactions between power, law, and norms in the maritime and territorial disputes in the SCS from a variety of disciplinary perspectives. Through assessing these interactions, we hope to provide insights into the specific dynamics of the dispute and the shifting security landscape in the region, but also a basis for thinking more deeply about the broader rise of China.

Outline of the book The SCS dispute is inseparable from wider questions of regional order, and the prospect that this order may be remade by the rise of China. The first two chapters examine this background, analysing the factors conditioning the attitudes and actions of the US and China towards the current order. Tanguy Struye de Swielande explores the drivers and impacts of changing US policy in

Introduction  17 the region, and how the Obama administration sought to preserve the US-​led status quo. He explains US policy in the context of the power shift from ‘the West to the Rest’ and the emergence of the Asia-​Pacific region as a new hub of world affairs. In the context of this power transition, the area extending from the Gulf of Bengal to the Sea of Japan has become an increasingly vital interest for Washington. The United States remains dominant in the region, and its interests are served by the preservation of the existing order. International law is here a tool serving US political and economic interests, underwritten by US power. But this dominance is potentially threatened as Asia undergoes profound changes, and as the document Sustaining US Global Leadership: Priorities for 21st Century Defense makes clear, the US has reached an ‘inflection point’. The SCS issue is the most significant illustration of an emerging challenge for Washington: the possibility of US dominance in Asia being replaced by a Chinese regional order. Struye de Swielande examines how the United States under Obama adapted its policies in response to these new realities. Building on defensive realism and transformational leadership, he argues that the ‘pivot’ or ‘rebalancing’, despite American relative decline, aims to adjust American grand strategy to guarantee its leadership in the region by promoting a retrenchment policy characterized by offshore balancing, selective engagement, and more autonomy to trusted followers. In Struye de Swielande’s account, the US’s approach to order in the Asia-​ Pacific is ultimately a product of its interests and the limits of its material power to defend those interests. In the second chapter, Bart Dessein takes a different tack, interpreting China’s orientation to regional order through the ideas that inform its self-​understanding. He takes an address by Joseph Needham as the starting point for a discussion of the re-​emergence of China’s traditional Confucian philosophy. A Confucian worldview, in a modernized form, has been an integral component of China’s return to the world stage. Dessein argues that China’s approach to international affairs, including conflicts over the East and South China Sea, are the product of a broader vision that positions China as a normative power and bearer of superior Confucian values. The political rhetoric associated with this Confucian philosophy  –​first ‘peaceful rise’, and more recently ‘harmonious world’ and ‘Chinese dream’  –​sounds inclusive and conciliatory. Dessein argues, however, that this rhetoric presents a potentially radical challenge to the current Western-​led international order, as some interpretations of the philosophy behind it seem to imply goals of Sinicisation and conformity with the policies of the CCP elite. It is still unclear what this discourse will come to mean in theory or practice, and there is no guarantee that a Confucian form of normative power will be accepted domestically, let alone internationally, yet China’s approach to the SCS conflict may partly depend on how these ideas are interpreted in practice. The remaining chapters of the book examine how other state and non-​state actors have responded to the SCS disputes and the changing regional order. In Chapter 3, Yih-​Jye Hwang and Edmund Frettingham argue that Taiwan’s

18  Yih-Jye Hwang and Edmund Frettingham narratives of its sovereign rights over the SCS are mainly responses to wider crises of ontological security that each government in Taiwan has faced. The claims on the SCS under Chiang Kai-​shek’s regime was initially driven by the ontological need for gaining the legitimacy associated with the Republic of China (ROC) identity in its fight against communist China. Since the 1990s, Taiwan’s narratives have diverged. On the one hand, those who wish to maintain the legitimacy of the ROC claim that all waters within the U-​shaped line published in 1947 are under Taiwan’s sovereignty. On the other hand, those who wish to jettison the ‘ROC’ believe that the narrative in which the historic waters of the SCS come under the sovereignty of Taiwan on account of its historical ties with China adversely and paradoxically undermine the ‘sovereignty’ of Taiwan. Analysis of the controversies surrounding the SCS from Taiwanese perspectives must reckon not only with the material interests at stake, but also with the broader concerns about ontological security at play in regional and domestic politics, and the politics of identity through which these concerns are narrated domestically and internationally. In Chapter 4, Chih-​Mao Tang looks at how the Philippines has used legal and power-​political strategies in response to China’s increased assertiveness in the SCS. He argues that the Philippines uses domestic and international legal processes to strengthen the legitimacy of its sovereignty and other rights claims in the region. In addition to legal measures, though, the Philippines is also taking advantage of the US military presence and Japan’s security assistance to deter China’s growing military presence in the SCS. The legal side of this dual strategy culminated during the Benigno Aquino III administration in the submission of an arbitration application to the PCA against China over the determination of certain maritime features in the SCS, and the maritime claims to which these features were entitled. At the same time, the Aquino administration also sought stronger collaboration with the US, including the Obama administration’s policy of ‘Rebalancing to Asia’. For Tang, law and power are mutually reinforcing in the SCS dispute, even if power is ultimately primary. The Philippines’ legal claims provide a justification for the use of hard power to secure its sovereignty rights in the SCS, but these claims will carry little weight if they cannot be enforced, and enforcement depends on material power rather than normative appeals. Whether or not states adhere to international law depends on the costs and benefits involved; in its conflict with China, the Philippines must therefore be able to impose costs that would outweigh any potential benefits of rule-​breaking. As a relatively weak state, the only way it can do this is through security and defence cooperation with the US, Japan, and Australia. Elena Atanassova-​Cornelis agrees that it is ultimately power–​political considerations that shape states’ attitudes to the rule of law in the region. Her chapter examines how Sino–​Japanese relations and the tensions over disputed territories in the East and South China Sea have been shaped by strategic uncertainties that currently characterize regional geopolitics. She argues that the territorial disputes should not be understood as a driver of international

Introduction  19 competition, but rather as manifesting China’s and Japan’s concerns about the changing geopolitical environment in the Asia-​Pacific. The most worrying uncertainties for Tokyo are the durability of the US security commitments in the region, on the one hand, and the People’s Republic of China’s regional intentions, more specifically in the realm of maritime security, on the other. For its part, Beijing is concerned about US objectives in the Western Pacific and its China policy, as well as to the role of Japan, both in the framework of its alliance with America and as a more autonomous maritime security actor (in the China Seas). Japan and China have each responded to these uncertainties by seeking to constrain the other in the Asia-​Pacific region. This has involved military measures, with each state strengthening their military presence around the disputed territories, but also wider efforts to build alliances and exert pressure on ASEAN states to prevent the other state building a coalition that could leave them isolated and vulnerable. For Atanassova-​Cornelis, Japan’s enthusiasm for the rule of law in settling territorial disputes is part of this strategic competition. If this manoeuvring has not yet got out of hand, it is because both Beijing and Tokyo have limited the ways their forces engage in the region and kept bilateral channels of communication open. Yet it is the danger of escalation rather than any intrinsic respect for the principles of international law that are constraining the parties. In Chapter  6, Lindsay Black looks at Japan’s response to the disputes through the lens of regional order. Black argues that how states manage the SCS disputes depends on how they conceptualize order. Academic debates have traditionally understood regional security order in terms of a teleological progression from a balance of power to a security community. An alternative explanation is that such orders may overlap. Prior to the current Abe administration, Japanese governments sought to both balance against China as well as socialise China into abiding by regional norms. Since Abe took power in 2013, Japan’s approach has relied on alliance building and containing China’s rise alone. The Abe administration’s reluctance to engage in multilateral security fora as a means to resolve the disputes leaves Japan isolated in the region, as well as reliant on and subservient to an increasingly demanding US. Black’s analysis indicates the ways in which rhetoric about the rule of law, which was earlier invoked in more ‘liberal’ terms as the basis for mutually beneficial exchange and cooperation, has increasingly been used instrumentally to isolate China and justify Japan’s power-​balancing strategy in ways that leave the latter open to charges of hypocrisy, given its own territorial claims in the region. Black highlights the potential for the rule of law to be invoked as part of a politics of multilateral cooperation or a politics of power and rivalry. Christian Wirth’s chapter on freedom of navigation suggests that these two forms of politics can be very closely entwined. Given their use as some of the world’s busiest trade routes, freedom of navigation through the Malacca Straits and the SCS has long been of concern to naval powers. Increasing tensions caused by territorial disputes in the Spratly Islands propelled the issue

20  Yih-Jye Hwang and Edmund Frettingham to the forefront of foreign and security policy making in the Asia-​Pacific. Yet, despite its frequent deployment for the justification of naval operations and for the strengthening of military alliances, the meaning of ‘freedom of navigation’ remains ambiguous. Wirth analyses in Chapter 7 the changing meaning that naval powers, particularly Australian authorities and think tanks, have attributed to this concept. Starting from the original provisions on navigational regimes in the UN Convention on the Law of the Sea, and focusing on political rather than legal discourses, Wirth asks: freedom of navigation for what, and for whom? He finds that while the public understands freedom of navigation as the safety of maritime transport, the concept is not simply about trade facilitation for governments. Specifically, governments pursue this goal as part of an effort to secure their prerogatives to freely move their warships in East Asian seas, and thereby shore up long-​standing alliance relationships across the Asia-​Pacific. A sceptical view of international law in the region informs the final chapter, by Xu Qi. Xu analyses the SCS arbitration, in which the arbitral tribunal was asked to rule on whether it had jurisdiction in the dispute, and then on the merits of a series of claims by the Philippines contesting China’s assertion of historic rights over resources and maritime features in the region. The tribunal ruled in favour of the Philippines in many of the claims brought. Xu, however, argues that in ruling on its jurisdiction in the matter, the tribunal overlooked significant passages of the UNCLOS. Had the tribunal taken proper account of these sections, it would have had to decline jurisdiction over many of the Philippines’ claims. Xu also suggests that the Tribunal’s interpretation of UNCLOS article 121 on the islands, and its handling of evidence in the case, were both deficient in important respects, calling into question the Merits Award in favour of the Philippines. He argues that the arbitration has not achieved the Philippines’ objectives insofar as China has contested and, in practice, ignored the decision. The only practical effect of the ruling has been to enflame tensions in the region as it harmed the diplomatic relationship between the two contestants, and provided a rationale for the US to increase its maritime security and freedom of navigation operations.

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1  The rebalance under the Obama administration Transformational leadership and selective engagement Tanguy Struye de Swielande

Introduction At the end of the Cold War, the thesis of the “end of history” argued that democracy and capitalism would represent the future, and the Western model would conquer the world. Twenty-​five years later, this model is being challenged. For Layne (2011): The end of America’s unipolar moment will cause major changes in international politics. Under the Pax Americana the world has enjoyed a long era of great power peace and international prosperity. This holiday from history, however, is coming to an end and international politics is headed back to the future. With the end of American primacy, the real post-​American world will enter an era of de-​globalization, rising nationalism and neo-​ mercantilism, geopolitical instability and great power competition. (p. 160) Indeed, new centres of power have emerged. Today the world is a complex environment, characterized by both near-​and long-​term challenges where different interactions at play remain to be apprehended and understood. There is also an economic and partially political shift, a redistribution of power from the “West to the Rest” on the classical state power chessboard. In this regard, the Asia-​Pacific region is now the new hub of world affairs. The region currently forms the epicentre of world affairs and brings together the majority of great powers (emerging and confirmed), most nuclear powers, and more than one third of the world population. Even though the region is globally the new major economic driving force, many security challenges remain, such as piracy, terrorism, proliferation, natural resources, and border issues. Indeed, economic interdependence has not evacuated the risk of war. This risk is especially present in the case of the Korean peninsula, the issue of Taiwan, and the maritime border disputes in the South China Sea.

Rebalance under the Obama administration  25 In the current context of transition of the balance of power towards the Asia-​Pacific, the zone extending from the Gulf of Bengal to the Sea of Japan is of an ever-​growing vital interest for Washington. Although the United States is still dominating the region, its control is less impressive than in the past as Asia undergoes profound changes. Furthermore, as mentioned in the document Sustaining US Global Leadership: Priorities for 21st Century Defense, the United States has reached an “inflection point”, and while the words “relative decline” or “overstretch” are not pronounced, the “unipolar moment” as defined by Krauthammer is ending (Kennedy 1987, Department of Defense 2012, p. 1). With that in mind, the Obama administration established its priorities and reinforced its diplomatic and military presence in a push to ensure the Pax Americana in the Asia-​Pacific. The possibility of a Chinese regional order in Asia, and specifically in Southeast Asia, appears to worry the United States, which has long dominated the region without any real challenger, the South China Sea issue being the best illustration. This chapter explains how the American approach towards the South China Sea is part of a bigger grand strategy in the Asia-​Pacific. The first part of the chapter studies the logic and rationality behind the Obama administration’s grand strategy of leading from behind. The second part examines the famous “pivot” or “rebalancing” and examines the logic of transformational leadership that was behind it. Finally, the third part analyses how the Obama administration handled the South China Sea issue.

Leading from behind It is stated that a state’s power is mobilized to comply with and fulfil its national interest, which is generally formulated in a grand strategy. Brands (2012), in his article “The Promise and Pitfalls of Grand Strategy”, defines grand strategy as “the theory, or logic, that binds a country’s highest interests to its daily interactions with the world” (p. 3). A state’s grand strategy thus represents a guideline establishing the ultimate objectives of foreign policy. Under President Obama, the United States became aware of the “Lippmann Gap” that characterizes situations in which the engagements of a nation’s foreign policy exceeds its power (Lippmann 1943, pp. 7–​8). Akin to what Paul Kennedy conceptualized in his work under the term “imperial overstretch”, this results in the exhaustion of resources and energy, tolling the bell that signals the end of the country’s domination (Kennedy 1987). As a consequence, the objectives of the Obama administration consisted in sharing risks, costs, and blood with allies and partners with all the hazards these entail. Most notably, a possible hazard occurs when more autonomous partners wish to further their own agendas, which do not always correspond to the agenda of the United States (Department of Defense 2014, p. 6). The financial crisis, which laid a severe blow to the economic pillar of American power, pressured Washington to focus on some pivotal states capable of serving its

26  Tanguy Struye de Swielande interests in different regions to hold back some potential challengers and contain regional as well as local threats. In the last two decades, the United States has too often lost sight of the fundamental principle of any foreign policy, which is, as Richelieu noted, “the thing which must be sustained as well as the force sustaining it have to be geometrically proportional” (Kissinger 1994, p. 63). This fundamental principle is precisely what the Obama administration strived to realize in its foreign policy. The precarious economic situation, the presence of American forces on several theatres of operation (i.e. Afghanistan, Iraq, Somalia), the scepticism of the American population regarding imperialist or hegemonic proclivities, and so forth, have nurtured a more selective and managerial foreign policy. The American administration realized quickly that a going-​it-​alone approach and overextension means the end of American dominance in world affairs. Instead, because of the relative decline, the United States needed to replace its smaller capacity by reinforcing its alliances and partnerships to compensate for these losses. Furthermore, the US had to prioritize its national interests, emphasizing high politics instead of low politics. Thus, the motto of President Barack Obama appears to have been the following: only a policy further calibrated on a narrow definition of national interest can make the difference between what matters on a strategic level and what is peripheral. In fact, the policy of the Obama administration has mainly been characterized by an affiliation to defensive realism and a stricto sensu interpretation of the national interest.1 Defensive realism argues that the right way to survive, and thus defend your national interests in an anarchical structure, is to adopt policies that guarantee your security by defending a kind of balance of power and to not seek power maximization to assure dominance.2 Accordingly, this argument led to a redefinition of American priorities on the international scene, accurately illustrating “the butter and gun dilemma” to which Washington was confronted. Without a strong economic pillar, there would not be an American leadership in the future. Thus, the objective was to ensure economic growth while disengaging from peripheral theatres of operation, hereby avoiding the endangerment of American national interest, while in parallel asking allies to step in. Indeed, due to its relative decline, the United States needed to share the burden, the risks, and the costs with its trusted followers more than in the past. As a result, the United States policy translated into the “leading from behind” doctrine and the concept of “strategic patience” (The White House 2015a).3 In practice, the Obama administration rejected liberal interventionism rooted in theories of the democratic peace and privileged instead selective engagement. Advocates of selective engagement “do start from the premise that US resources are scarce: it is simply impossible to muster sufficient power and will to keep domestic and international peace worldwide, or to preserve the United States as the undisputed leader in a unipolar world” (Posen and Ross 1996, p. 16). Consequently, selective engagement, in the words of James Baker, “recognize(s) that the United States has core interests in the world and

Rebalance under the Obama administration  27 must protect them. At the same time, it also acknowledge(s) the reality that (the American) power is limited”.4 Selective engagement “understand(s) and appreciate(s) the complexity of the real world–​a world of hard choices and painful trade-​offs”. Furthermore it “avoid(s) both the cynicism of ‘realism’ and the impracticality of ‘idealism’ ” (Baker 2016). This selective engagement translates in practice by establishing priorities, such as balance of power; peace among major powers; containment or discriminate interventions in regional conflicts, ethnic conflicts, or humanitarian missions; preservations of alliances; and promotion of a divided Eurasia (Posen and Ross 1996). As a result, President Obama did not want to get entangled in what he considered peripheral crises that would require boots on the ground at high cost and that would endanger the economic recovery (i.e. Syria, Ukraine, South China Sea). At the same time, he realized that, as the superpower, doing nothing was not an option. Consequently, if the core national interests were not endangered, the priority was to contain and/​or manage the situation and count on allies and partners to fill the void. In such policies characterized by selective engagement (or retrenchment), allies and partners, more particularly those that are located at the intersection of different spheres of influence, take a whole new dimension (Sweijs et al. 2014, p. 6). Therefore, if the United States wanted to keep its predominant position in the Asia-​Pacific  –​and thus safeguard its capacity to defend its interests there  –​it had to focus on a certain number of pivotal states. The Americans needed to be able to lean on partners who had to be more proactive and avoid buck-​passing or free-​riding. By giving more autonomy to trusted followers, Washington engaged a social process “through which the leader changed the way followers envisioned themselves” (Collinson 2006, p. 180). Obama thereby tried to shift from a transactional form of American leadership towards one that was more transformational. The former is a “process of exchanges analogous to contractual relations in the economic field [and] depending on the participants’ good faith” (Goethals et  al. 2004, p.  1558). This style of leadership relies on the duo of rewards and punishments; the leader sets goals without necessarily including the followers. It implies an effective control over means of threat or reward by the dominant power. The latter encompasses motivations and ideas of followers and induces a change in their reflection. This reflection repurposes their actions and becomes a source of inspiration. In theory, the leader increases everyone’s welfare and fulfils a common goal through mutual stimulation, underlining that “any organization is a triad consisting of leaders and followers joined in a common purpose” (Chaleff 2009, p. 13). Without this common goal, no leader–​follower relation is possible. We may quote Lao Tzu in this regard: “The wise leader settles for good work and does not take all the credit for what happens. When the work is done, let them say with pride, we have done this together” (Hollander 2009, p. 12). The distinction between transactional and transformational leadership is gradual and incremental rather than absolute. The greater the asymmetry

28  Tanguy Struye de Swielande of power between leader and followers, the more the leader will be able to impose itself via its capacities, hence the more transactional will be the leadership. On the contrary, if the gap continues to shrink –​provided the leader wishes to stay at the top of pyramid  –​the dominant power must increasingly consider its followers’ needs and interests and should share parts of the leadership’s responsibilities with them. Thus, the Obama administration adapted its strategy by using determinants of power other than the traditional capacities and means. Having less of the latter, Washington compensated by emphasizing social power. Being less transactional and more transformational, the United States, to guarantee the survival of the liberal world order, involved a greater number of other states through the recognition of a new satisfying status by sharing the burdens of regional leadership (as analysed below) devoted to the rebalancing. Therefore, leadership, in that sense, was about providing enough incentives to protect the status quo, while being a follower meant enjoying the status quo without entertaining revisionist objectives. The system had to be established so that it was “much more advantageous for subordinates to pursue their individual goals and interests within, and according to the parameters set by the system than to challenge it” (Diefenbach 2013, p. 105). This policy led by the Obama administration did not only allow the leader to distribute the costs of leadership among its allies, but it also put the allies at the forefront of the international scene by empowering them with part of the responsibility of the world order’s stability (empowerment), while giving them the means to achieve it (enablement). In brief, the foreign policy of President Obama has been characterized by measure, restraint, and openness towards allies and new partners. On the subject, a little over a century ago, President Theodore Roosevelt remarked that “Nine-​tenths of wisdom is being wise in time”. The rebalancing is an excellent example of the Obama administration putting this approach into action.

Adapting traditional alliances to new realities and developing new partnerships Facing the rise of China in the Asia-​Pacific –​and in particular in the South China Sea  –​who deployed its power akin to an octopus deploying its tentacles, the Obama administration heavily reinforced its strategic positions in Northeast Asia, Southeast Asia, and in the South Pacific, like in a game of chess, through its rebalancing policy.5 In the document Sustaining US Global Leadership: Priorities for 21st Century Defense of January 2012, Washington reaffirmed the importance of the region: United States economic and security interests are inextricably linked to developments in the arc extending from the western Pacific and east Asia into the Indian Ocean region and south Asia, creating a mix of evolving challenges and opportunities. Accordingly, while the United States

Rebalance under the Obama administration  29 military will continue to contribute to security globally, we will of necessity rebalance toward the Asia-​Pacific region. (Department of Defense 2012, p. 2) The document also insisted on the protection of the “global commons, those areas beyond national jurisdiction that constitute the vital connective tissue of the international system” (Department of Defense 2012, p.  3). To these ends, the United States, having less capacity, had to make its followers feel part of the rebalancing. Follett (1924) is right when she points out that “leadership is not defined by the exercise of power but by the capacity to increase the sense of power among those led. The most essential work of the leader is to create more leaders” (p. 3). Those who are powerful are not those who hold power but those who are able to enrol, convince, and enlist others into the project. Thus, the traditional alliances with Japan, South Korea, Australia, the Philippines, and Thailand still had to form the bedrock of the rebalancing, but in a less asymmetric patron–​client approach. Additionally, the policy had to go beyond core allies to develop relationships with new partners and integrate them in the project. The American strategy in the Asia-​Pacific relied for many decades primarily upon its traditional hub-​and-​spoke system, leaning on Japan, South Korea, Australia, the Philippines, and Thailand. Under the rebalancing, the relations with these followers had to be reinforced, granting them more autonomy. If the relationship between Japan and the United States would still be determined by the spirit of the United States–​Japan Treaty of Mutual Cooperation and Security of 1960, the relationship would be less asymmetric (The United States of America and Japan 1960). As such, the relationship, noted in the common declaration of October 2013 (“Towards a More Robust Alliance and Greater Shared Responsibilities”), focuses on three main issues: 1) common strategic objectives; 2) roles, missions, and capacity of the two countries; and 3)  the repositioning of American forces. Furthermore, in April 2015, the United States and Japan redefined the guidelines of their bilateral defence cooperation to achieve a partnership, which headed towards mutual defence (greater flexibility, autonomy, and interoperability) and thus towards greater burden and risk sharing. As a result, the United States and Japan stated that: The new Guidelines for US–​Japan Defense Cooperation will transform the Alliance, reinforce deterrence, and ensure that we can address security challenges, new and old, for the long term. The new Guidelines will update our respective roles and missions within the Alliance and enable Japan to expand its contributions to regional and global security. The new Guidelines will enable the United States to work more closely on issues including maritime security, and to partner with other countries that share our aspirations, in the region and beyond. (The White House 2015b)

30  Tanguy Struye de Swielande Hence, Washington encouraged Tokyo to participate in an increasingly direct way to regional stability and security. The relationship between South Korea and the United States, which was based on the ROK/​US Mutual Security Agreement of 1954, was also transformed. This gave more leeway to South Korea as Seoul looked for a more autonomous course, encouraged in this endeavour by Washington, who wished to see Seoul take on more regional responsibilities. For Seoul it was therefore important not to be considered as the “junior partner” anymore, to affirm its own national interests and to develop its own regional strategic approach. The two governments also agreed that the United States forces stationed in the country  –​the United States maintains about 28,500 troops in the Republic of Korea  –​could serve as a rapid reaction force in East Asia (Seoul would have to consent to their deployment) and accordingly fulfil a more global role (Medeiros et  al. 2008, p.  82). Due to the tensions on the Peninsula in 2010 (i.e. the Cheonan and Yeonpyeong-​do incidents), 2012 (missile launches), and 2013 (nuclear test), the two countries decided in March 2013 to conclude a new military agreement, which foresaw a common response in case of a North Korean provocation, and not only in case of a conflict, as was the arrangement before. If the US already had access to Australian bases and facilities, the agreement concluded in November 2011 concerning a permanent presence of US Marines at Darwin went even further (2,500 Marines will be rotating to the base in the coming years). This location gave the US Army better control over the main Sea Lines of Communication (SLOCs) around Indonesia and the Philippines (Lombok, Sunda, Makassar, Timor Sea, and Andura Sea), and direct access to the Indian Ocean. In parallel, Washington encouraged Canberra to take more responsibilities in its immediate neighbourhood. Still, in the region there was also a rapprochement between the US and New Zealand (i.e. the Declaration of Wellington in 2010)  on the one hand, and between the US and the Pacific Islands on the other. China’s economic and diplomatic breakthrough forced the US to reengage the region both bilaterally and through regional interactions (Pacific Island Forum, Secretariat of the Pacific Community; Campbell 2010). Indeed, these ‘micro-​states’ have a certain strategic significance related to the control of some SLOCs (Guam–​ Australia–​New Zealand) of their weight in both regional and international organizations and to their maritime resources. Partially left aside under the Bush administration, the Association of Southeast Asian Nations (ASEAN) became a priority under the Obama presidency because of its transformational leadership approach. As Kurt Campbell, Assistant Secretary of State for Asian Affairs, explained:  “[w]‌e are diversifying our strategic and military approach. We will keep a strong commitment in northeast Asia, but we will focus more of our attention in Southeast Asia” (Harlan and Whitlock 2012). In the past, the United States privileged bilateral relations with ASEAN members, but the ASEAN was also

Rebalance under the Obama administration  31 seen by the Obama administration more as one unified actor and was treated as such. Bilateral ASEAN–​US summits were organized, a permanent US Mission to ASEAN was established in 2010, and the United States elevated the US–​ASEAN relationship to a strategic partnership in 2015. Both sides 1) “committed to a rules-​based approach in Asia, respect for international law and the peaceful resolution of disputes”; 2) emphasized “ASEAN centrality in the evolving rules-​based architecture of the Asia-​Pacific” and reaffirmed “the importance of maintaining peace and stability, ensuring maritime security and safety, and freedom of navigation including in and over-​flight above the South China Sea”; and 3) stressed “the resolution of disputes in ‘accordance with universally recognized principles of international law’ ” (Association of Southeast Asian Nations 2015). Furthermore, trade between the US and ASEAN reached US$227 billion in 2015 (Office of the United States Trade Representative 2016). This renewed engagement or interest for the ASEAN was motivated partially by a more multilateral approach from the Obama administration, but it was also based on realpolitik considerations, namely, reinforcing the US military presence to better control the global commons and the maritime Rimland. Still, bilateral relations with some ASEAN members remained at the centre of the American engagement in Southeast Asia. In April 2014, Washington and Manila signed, for example, a new defence agreement, the Enhanced Defense Cooperation Agreement, which became operative in 2016 and allowed an increase in US military presence within the archipelago in the form of access of American troops to the Philippines’ military installations, the arrival of Littoral Combat Ships, and more regular rotations of American forces.6 In 2012, the United States reasserted its engagement towards Thailand via the Joint Vision Statement for the Thai–​ US Defense Alliance (Panetta–​Sukumphol). Going beyond the reassertion of the alliance, the document focused on four topics: 1) partnership in regional security in Southeast Asia; 2) stability support in the Asia-​Pacific and beyond; 3) bilateral and multilateral preparation and interoperability; and 4) multilevel collaboration and coordination. The May 2014 coup d’état notwithstanding, the United States continued to export arms to Thailand and kept participating in the Cobra Gold exercise, though the US scaled down to 3,600 the US military participating in the exercise in 2015 and 2016. The central reason for this continuity stemmed from the American fear that Thailand could turn itself towards Beijing. Despite the fact that there is no official alliance between Singapore and the United States, the country is the major American asset in Southeast Asia. In 2015, the two states signed a new enhanced defence cooperation agreement, enhancing cooperation in five key areas, namely, in the military, policy, strategic and technology spheres, as well as cooperation against non-​conventional security challenges, such as piracy and transnational terrorism. Both sides also agreed to enhance cooperation in new areas, including humanitarian

32  Tanguy Struye de Swielande assistance and disaster relief (HADR), cyber defence, biosecurity and public communications. (Ministry of Defense 2015) During her visit in February 2009, Secretary of State Hillary Clinton declared that the partnership between Indonesia and the United States would “provide a framework for advancing [US and Indonesian] common interests on the range of regional and global issues, covering environmental protection and climate change, trade and investment, democracy promotion, health, education, regional security and counter-​terrorism” (Xinhua 2009). The visit of President Obama in 2010 confirmed the geostrategic importance of Indonesia for the US (US–​Indonesia Comprehensive Partnership) not only because of its pivotal role in Southeast Asia, but also because it is the country with the largest Muslim community worldwide. In 2015 the two states expanded their Military Cooperation Agreement and upgraded the relationship to the US–​ Indonesia Strategic Partnership. A dramatic change also took place in the bilateral relations between the US and other ASEAN countries, such as Malaysia, Vietnam, or even Cambodia and Laos, not to mention Myanmar. During Obama’s visit to Malaysia at the end of April 2014, the American president and Malaysian Premier Najib intensified the relationship between Kuala Lumpur and Washington through a global partnership. The latter included, among many topics, a deepening of cooperation in the economic, diplomatic, and security fields. In late 2016, tensions arose between Kuala Lumpur and Washington due to corruption scandals involving a fund owned by the Malaysian government. Quite interestingly, the US was deeply engaged in a process of rapprochement with Vietnam. In October 2014, the United States partially lifted the weapons embargo on Vietnam (specifically, the section tied to maritime security and surveillance equipment), and in June 2015, the two states concluded a Joint Vision Statement, thus encouraging greater operational cooperation.7 Eventually, during his visit to Hanoi in 2016, President Obama announced the full lifting of the arms embargo. In addition to Vietnam, the US also improved its relations with Cambodia and Laos. Even if those are still nascent and limited to some formations and exchanges, the two states are clearly in the Chinese sphere of influence. Following the promising democratization process of 2011, the rapprochement between Myanmar, a traditional preserve of India and China, and the United States materialized itself through Clinton’s visit at the end of 2011, Obama’s in mid-​November 2012, and by Burmese President Thein Sein’s journey to the White House in May 2013. Nevertheless, the slow-​paced democratic transition forced the United States to reduce military cooperation in 2015, creating an absence of the International Military Education and Training program (IMET) and the Foreign Military Financing program (FMF). That being said, Washington was clearly on the move toward the ASEAN mainland states, despite their traditionally closer ties with China.

Rebalance under the Obama administration  33 Additionally, the rebalance also contained an economic dimension to foster free trade. Washington launched the Trans-​Pacific Partnership (TPP) initiative, a free-​trade agreement between the United States and several other countries of the Asia-​Pacific Economic Cooperation (APEC: Australia, Canada, Brunei, Mexico, Chile, Japan, Malaysia, New Zealand, Peru, Singapore, and Vietnam), representing one-​third of global GDP and excluding China. Although the TPP formed the economic aspect of the United States’ pivot to the Asia-​Pacific, it represented much more. Namely, it is rather a struggle whose endgame is none other than the definition of the rules of globalization, its dual meaning [in English] reveals all its geostrategic dimension  –​the word rule designates at the same time the regulation and the action of “ruling” or governing. (Velut 2014, p. 144, emphasis in original) Belin (2014) upheld that the TPP is synonymous with “alliance reinforcement, proposal of alternatives to the Chinese model, normative and regulatory influence” (p. 157). From an economic standpoint, there was a will to implicitly reinforce the American presence through a network of relations that would let Washington continue to determine the rules and the agenda of international trade. The rebalance had undoubtedly an objective of the legitimation of American power by other states (Flemes 2009). As Nabers puts it (2008, p. 2), leadership is efficient and durable when foreign elites acknowledge the leader’s vision of the international order and internalize it as their own. Indeed, “great powers must choose to play their role and ensure their recognition by the international society” (Donnelly 2006, p. 153). When a pursued goal falls in a long-​term and strategic category, the dominant power must succeed in setting up a system in which the followers will automatically and naturally comply with the leader’s objective, which is therefore seen as legitimate. The hegemon needs to legitimize its status; it must clearly express the norms, principles, and values to be recognized by others –​which happen to be in the leader’s interests –​thus simplifying the creation of an international order in its image. Hence, the rebalance was also a process of socialization with an aim to (re) adjust, (re)model, and (re)configure the relationship between the leader and the followers. This process made sense as it increased the sense of responsibility and fulfilled the need for recognition of these states to which leadership was delegated (i.e. prestige-​sharing). Thus, the United States witnessed the growing Chinese influence and presence in the region as a potential threat, adjusted its relations with traditional allies, and developed new partnerships with the countries of Southeast Asia to reinforce its presence in the region and ensure the control of maritime sea lanes. For the United States, the priority was to rely on local partners  –​what the military defines as the “by, with, and through” philosophy. According to this view, “[w]‌hether conducting operations ‘by’ us,

34  Tanguy Struye de Swielande namely, the Western nations, for those states without the necessary capability, or ‘with’ those countries to secure their borders, the goal is, in the end, to work ‘through’ those same countries by empowering them to conduct their own operations . . . , with the ultimate goal of regional and international security” (Spencer 2014). This approach was advocated for two main reasons. First, it allowed for sharing the burden of maintaining order by delegating the management of regional issues to regional actors. Such a strategy made sense as these actors usually have a better understanding of their region and its issues. Second, it increased the sense of responsibility and fulfilled the need for recognition of these states to which leadership is delegated (prestige-​ sharing). This “co-​management”, “the sharing of power and responsibility between the government and local resource users”, led to greater interaction, increased collaboration, and coordination (Berkes et al. 1991, p. 12). Through this regional approach, the US implicitly encouraged a) a shared vision, goal, and/​or problem definition providing a common focus; b) a high degree of dialogue, interaction, and collaboration among multi-​scaled actors; c) a shared responsibility for action and decision-​making; d) a degree of autonomy for different actors at multiple levels (Armitage et al. 2007, p. 6). Furthermore, the objective, still in the logic to reinforce the followers’ autonomy, was also to bolster the relationship between the different partners and allies among themselves. The Obama administration exhorted intra-​allied cooperation and encouraged bilateral or trilateral dialogues:  “Australia–​ Japan–​US”, “Japan–​India–​US”, “Australia–​India”, “Australia–​South–​ Korea”, “Australia–​Japan”, “India–​Japan”, etc. In June 2016, US Secretary of Defense Ash Carter laid out this vision of the Asia-​Pacific’s Principled Security Network at the Shangri-​La Dialogue. It is interesting to quote at length some passages: In addition to the ASEAN-​centric security network that’s developing in Southeast Asia, nations across the entire Asia-​Pacific are increasingly working together –​and networking security together. And yet, as the region continues to change, and becomes more interconnected politically and economically, the region’s militaries are also coming together in new ways. They are building connections for a common purpose: upholding the security and stability critical to a principled and prosperous future. Now, this Asia-​Pacific security network is more than some extension of existing alliances. It weaves everyone’s relationships together –​bilateral, trilateral, and multilateral –​to help all of us do more, over greater distances, with greater economy of effort. It enables us to take coordinated action to respond to contingencies like humanitarian crises and disasters; to meet common challenges, such as terrorism; and to ensure the security of and equal access to the global and regional commons, including vital waterways. (Carter 2016)

Rebalance under the Obama administration  35 A well-​ managed network would provide broader opportunities to the United States if it acted in a proactive and adaptive fashion, diversified networks, and strategically positioned itself. From a vertical hub-​and-​spoke approach, the US headed towards a more horizontal network-​ centred approach, expecting allies and partners to take more regional responsibilities and to assume the costs and risks in their direct zone of influence (for an in-​ depth analysis, see Struye de Swielande 2012). Until now, numerous American allies had found an advantage in buck-​passing or free-​riding. To be successful, the rebalance strategy required allies and partners to develop their respective political and security ties with each other. The objective was “burden shifting”, “getting other states to do more for their security so the United States can do less” (Layne 2012). The Obama administration, in a certain way, reactivated the Guam/​Nixon Doctrine of the ‘70s. The evolving situation in the South China Sea would prove an excellent test of these new policies.

The South China Sea: A flopped attempt of the new policies? The policy towards the South China Sea under the Obama administration was part of the global rebalancing towards the Asia-​Pacific: 1) allies and partners should take the lead; 2) an unwillingness to be dragged into a new conflict in the region; and 3) a prioritisation of defending the core interests. In the South China Sea, these core interests were freedom of navigation (security of sea lanes) because of economic and military interests (trade and power projection) and thus stability (see also Department of Defense 2015a). These interests were considered by the Obama administration to be threatened by China due to its territorial claims and military modernization, as explained above. The first important statement under the Obama administration about the South China Sea was delivered by Secretary of State Clinton at the ASEAN Regional Forum in July 2010 and emphasised three points:  1) “a national interest in freedom of navigation”, 2)  opposition to “the use or threat of force by any claimant”, and 3)  “not taking sides” in the territorial claims (Fravel 2014, p. 5). Although there were other statements made in the next few years, they all confirmed the 2010 statement. The only important evolution in some of the following testimonials and declarations was the singling out of China by name (Fravel 2014, pp.  5–​7). That said, the United States began to counter the A2/​AD threats, fearing the impossibility to project its power in the future and thus defend the SLOCS, by developing the concept of AirSea Battle in 2010 (Krepinevich 2010).8 The concept was absorbed in 2012 in the Joint Operational Access Concept (JOAC), and the latter became, in 2015, the Concept for Access and Maneuver in the Global Commons (JAM-​ GC; United States Army 2012, Department of Defense 2015b). The Obama administration also reacted, but timidly, to the Chinese construction of artificial islands, launching in 2013 and 2015, respectively, the Southeast Asia Maritime Law Enforcement Initiative (to train and equip partner Southeast Asian Maritime law enforcement agencies) and the Southeast Asia Maritime

36  Tanguy Struye de Swielande Security Initiative (to improve regional maritime domain awareness; Bureau of Public Affairs 2015, Parameswaran 2015). The latter initiative was announced at the Shangri-​La Dialogue in May 2015 during a speech by Defense Secretary Carter, where he also explicitly targeted Chinese behaviour in the region: “There should be no mistake: the United States will fly, sail, and operate wherever international law allows, as US forces do all around the world”. He also drew attention specifically to the construction of artificial islands: “China is out of step with . . . international rules.” “After all,” Carter told regional leaders, “turning an underwater rock into an airfield simply does not afford the rights of sovereignty or permit restrictions on international air or maritime transit.” (Carter 2015) Despite these initiatives and the condemnations, it took the Obama administration until October 2015 to order the first freedom of navigation operation (FONOP).9 The objective of FONOPs is to ensure that when other nations impose what the United States considers excessive restrictions on the freedom of navigation (FON) in any place in the world, the Pentagon will send naval ships or aircraft to demonstrate that the United States will not accept such restrictions. (Etzioni 2016, pp. 1–​2) In some cases, these FONOPS require the approval of the Joint Chiefs of Staff or the President in order to avoid excessive political risk (Etzioni 2016, p. 4). Not desiring to provoke the Chinese, the Obama administration was not keen to allow FONOPs in close proximity of the artificial islands. Nevertheless, pressured by members of Congress, President Obama allowed the USS Lassen to execute a first FONOP sailing within 12 nautical miles of one of China’s artificial islands (Subi and Mischief reefs) in October 2015 (Wagner 2016).10 In January 2016, the USS Curtis Wilbur executed a FONOP close to Triton Island, and two other FONOPs would follow the same year (Paul 2016). In May, the USS William P. Lawrence transited within 12 nautical miles of Fiery Cross Reef in the Spratly Islands, and in October, the USS Decatur transited near Triton Island and Woody Island in the Paracel Islands, but not within the 12 nautical miles (Graham 2016, LaGrone 2016). These actions, though, were considered too little, too late by many allies and partners in the region. The consequence was threefold. Firstly, China was not impressed by the American statements or low-​level FONOPs and continued its aggressive rhetoric and the fortification of the artificial islands. Secondly, partners and allies, not knowing if they could count on the United States, did not unconditionally bandwagon with the United States, but privileged hedging, which refers to

Rebalance under the Obama administration  37 the strategic calculus of second-​tier states that wish to avoid confrontation with the system leader in the short run, while simultaneously preparing for long-​term contingencies like military disputes with the leading state, or the loss of public goods being provided by it. (Tessman 2012, p. 208) Thirdly, a positive side-​effect of the indeterminacy of the United States was nonetheless the reinforcement of mutual security cooperation among small and middle powers (e.g. Indonesia–​ Malaysia, Vietnam–​ Australia, Japan–​ Australia, South Korea–​ Indonesia) in the region. Such mutual security cooperation expressed itself through memoranda of understandings (MoU), strategic partnerships, “2+2” meetings, exchange of personnel and military-​ to-​military dialogue, regular joint military exercises (from natural disaster and humanitarian relief through transnational crime, piracy, and cyber operations), to joint operations, military sales, and common projects of weapon development (for an in-​depth analysis, see Struye de Swielande 2019). To conclude in the case of the South China Sea, we observe the limits of the grand strategy of selective engagement and transformational leadership adopted by the United States. Indeed, a grand strategy of selective engagement “requires to have and communicate a firm understanding of [y]‌our interests, the objectives for achieving those interests, and the policies [that states] are willing to employ to achieve them” (Hicks 2014). A  grand strategy cannot only be reduced to project definition. It must consist in what Mintzberg calls a “strategic process”, which is an implementation process. Among others, the strategic process needs to include a well-​constructed “strategic narrative”. And this is where the Obama administration partially failed. The strategic narrative has not been sufficiently and clearly explained to Washington’s allies and partners, hereby instigating doubt among them regarding American endeavours. The passive reaction of the Obama administration towards the Chinese military build-​up of artificial islands, with the exception of some timid freedom of navigation operations, led to a fait accompli  –​ although one has to recognize China’s skill in staying below Washington’s awareness threshold and acting without trespassing American redlines by using salami tactics. While each Chinese move had no big impact when considered separately, these bore a tactical or strategic advantage when aggregated, having as a result the militarization of reefs and islets and, at times, effective control over the South China Sea (Sa and Resnick 2015, p. 2). Consequently, the Obama administration was “repeatedly caught flat-​footed” by Chinese grey zone tactics and was unable to develop an appropriate and overarching strategy to deal with the situation.11 Nonetheless, the (almost) total absence of reaction –​with the exception of some statements –​towards Chinese construction of artificial islands between 2012 and 2015 was considered by many allies as a sign of weakness. Too many times the American administration reacted too slowly, due to a lack of flexibility and adaptation capacity. This tardiness spread some distrust to the minds of allies and partners, who were

38  Tanguy Struye de Swielande required to assume more responsibilities over local and regional theatres. Due to the case-​by-​case application of the policy, it was difficult to determine for allies and partners which minor issues in the “peripheral areas” “would merit US involvement” and be backed by, or have the support of, the United States (Posen and Ross 1996, p. 21). This inconsistency created some unnecessary doubts among the followers because of American unpredictability, unreliability, and hesitations. Furthermore, by applying selective engagement, the United States depended more on allies and partners who did not necessarily pursue the same goals, interests, or priorities. This application of selective engagement also limited the United States’ ability to persuade others on more important international questions. When assessing the Obama doctrine of selective engagement, it is precisely there that the problem emerged. The administration, due to its regular indecision and its incapacity to completely fulfil its role as leader, gave China the opportunity to take the initiative and even set the agenda from time to time. In the case of the South China Sea, the Obama administration neglected the fact that leading from behind still meant leading.

Conclusion Once in power, the Obama administration realized the United States could no longer be the sole guarantor of world order, as it had been over the last two decades. If the United States wanted to keep its predominant position in different regions –​and thus safeguard its capacity to defend its interests there –​it had to focus on partners and allies, reduce direct engagements (i.e. no boots on the ground), have a lighter footprint within world regions, and avoid buck-​passing and/​or free-​riding. The grand strategy under President Obama, plainly appearing in his policy in the Asia-​Pacific, is thus characterized by: 1) maintaining a world order structured around the United States through transformational leadership; 2)  granting more autonomy and responsibilities to allies and partners; 3) a narrow interpretation of the national interest, characterized by high politics; and, thus, 4) selective engagement. Although, the United States attempted accordingly to lead from behind, it was not (pro)active when required and did not avoid the trap of premature delegation and empowerment. Furthermore, strategic clarity (i.e. defining objectives, outcomes, etc.) accompanied by strategic narrative was absent and, consequently, the Obama administration failed to reassure regional allies and partners of the American commitment. Additionally, the reputation of war-​ aversion under the Obama administration hurt the American status, prestige, and reliability. This trait sometimes created a leadership vacuum, weakening the allies and partners of Washington and strengthening potential adversaries. As explained by Lieber (2016): Skillful integration of power and diplomacy, wielded with prudence and informed judgment strengthens deterrence, provides reassurance to allies,

Rebalance under the Obama administration  39 and can actually lessen the need for military action. Moreover, in enhancing the credibility of US commitments and signalling to potential adversaries, it reduces the risks of war by inadvertence where an adversary might otherwise dangerously underestimate American resolve. Even if mistakes were made and the strategy did not always adequately articulate itself, as seen in the South China Sea, the Obama Doctrine laid the founding principles of the direction that American foreign policy can take if the United States wants to maintain its primacy in the world in the next two decades. In fine, if the rebalancing was a partial success on the strategic level, but less in the South China Sea, as explained in this chapter, it is still unfinished business and thus an ongoing process that the Trump administration has to continue. To be successful, the rebalance strategy has to imply that allies and partners of the United States further develop their respective political and security ties with each other, while remaining anchored in and dedicated to defending the American-​led system. In the end, we stand at the dawn of a long historical reconfiguration of the Asian Rimland, a complex struggle with multiple facets, including security, cultural, political, and economic stakes.

Notes 1 Although defensive and offensive realism share a lot (e.g. importance of power, anarchy, internal self-​help), they are distinct in the manner in which they handle the uncertainty produced by other states’ intentions. Offensive realism suggests that states maximize their relative power (when the benefits outweigh the costs) as the only strategy to guarantee their survival. On the contrary, defensive realists contend that the maximisation of capacities will lead to a balancing policy. Consequently, defensive realism argues that states generally ought to exercise restraint to guarantee security and that a certain degree of cooperation in certain circumstances is possible for security reasons. Offensive realism aims at achieving maximum security by increasing power and weakening the other actors of the system. Instead, defensive realism, through relative security, considers that security will always depend on others, and alliances will be built up for defensive purposes (Tang 2010, pp. 21, 28, 102; see also, for example, Taliaferro 2001). 2 It is preferable for the United States to follow the concept of primus inter pares rather than primus solus (e.g. for the Bismarck system, see Struye de Swielande 2015). 3 “It is better to lead from behind and to put others in front, especially when you celebrate victory when nice things occur. You take the front line when there is danger. Then people will appreciate your leadership” (Lizza 2011). 4 Several scholars have offered a theoretical approach on selective engagement (e.g. Van Evera 1990, Posen and Ross 1996, Art 1998, Macdonald and Parent 2011, Posen 2014) 5 Part of Hainan Island was turned into an important military base (Sanya base), which will serve in the future as a harbour for nuclear submarines and aircraft carriers. Other examples include the militarization of the Paracel Islands (Xisha), taken from Vietnam in 1974; the transformation of some reefs into militarized

40  Tanguy Struye de Swielande artificial islands (Fiery Cross Reef, Mischief Reef, and Scarborough Shoal); the setting up of an Air Defence Identification Zone (ADIZ) in the region, thus enforcing aircraft identification and flight plan communication (radio identification, transponder, logo); the deployment of paramilitary forces around the Spratly Islands to escort its fishing ships; the use of power projection capacities to intervene not only in the South China Sea (domination of the first chain of islands), but also in the long term in the Pacific and beyond; and the possible re-​establishment of a modern version of the tributary system (Tianxia 2.0; for a discussion on a potential new version of Tianxia, see Callahan 2008, 2012, Dreyer 2015, Struye de Swielande 2018). In fine, China seemed to transform the region in a sort of Mare Nostrum, or Monroe Doctrine, for economic, historical, ideological, and strategic reasons. 6 These include Antonio Bautista Air Base; Basa Air Base, Fort Magsaysay; Lumbia Air Base; and Mactan-​Benito Ebuen Air Base. 7 This involved the transfer of five patrollers in 2015. 8 Anti-​Access (A2) represents those actions and capabilities, usually long-​range, designed to prevent an opposing force from entering an operational area. Area-​ Denial (AD) includes those actions and capabilities, usually of shorter range, designed not to keep an opposing force out, but to limit its freedom of action within the operational area (United States Army 2012). 9 On May 11, 2015, the USS Fort Worth executed a FONOP in the Spratly Islands, but not within 12 nautical miles of the islands. 10 “The Lassen engaged in the most benign type of FONOP, namely, an ‘innocent passage’ operation. In such an operation, the warship’s passage is continuous and expeditious, entails no usage of on-​board weapons and aircraft, and abstains from any attempt to interfere with the coastal state’s communications system or other facilities” (Sa and Resnick 2015, p. 4). 11 Following the analysis of Nathan Freier (2016), “gray zone challenges are some hybrid combination of adverse methods and strategic effects. Second, they menace American defense and military convention because they simply do not conform neatly to a linear spectrum of conflict or equally linear military campaign models. Finally, they are profoundly risk-​confused; as such, they disrupt strategic risk calculations by presenting a paralyzing choice between action and inaction. The hazards associated with either choice appear to be equally high and unpalatable” (p. xiii).

References Armitage, D., Berkes, F., and Doubleday, N., eds., 2007. Adaptive Co-​Management: Collaboration, Learning, and Multi-​Level Governance. Vancouver: UBC Press. Art, R.J., 1998. Geopolitics Updated:  The Strategy of Selective Engagement. International Security, 23 (3), 79–​113. Association of Southeast Asian Nations, 2015. Joint Statement on the ASEAN–​US Strategic Partnership. Available from https://​obamawhitehouse.archives.gov/​the-​ press-​office/​2015/​11/​21/​joint-​statement-​asean-​us-​strategic-​partnership. Baker III, J.A., 2016. “Selective Engagement” Offers Best Hope for US Foreign Policy. Senate Foreign Relations Committee, 12 May. Belin, C., 2014. La politique commerciale des Etats-​Unis au service des ambitions stratégiques américaines. In:  M. Kandel and M. Quessard-​ Salvaing, eds. Les

Rebalance under the Obama administration  41 stratégies du smart power américain:  Redéfinir le leadership dans un monde post-​ américain. Études de L’Irsem 32. Paris: Ecole Militaire. Berkes, F., George, P., and Preston, R.J., 1991. Co-​Management:  The Evolution in Theory and Practice of the Joint Administration of Living Resources. Alternatives, 18 (2), 12–​18. Brands, H., 2012. The Promise and Pitfalls of Grand Strategy. Carlisle, PA: Strategic Studies Institute, US Army War College. Bureau of Public Affairs, 2015. Southeast Asia Maritime Law Enforcement Initiative Fact Sheet [online]. US Department of State. Available from http://​2009-​2017.state. gov/​r/​pa/​pl/​240798.htm. Callahan, W.A., 2008. Chinese Visions of World Order:  Post-​Hegemonic or a New Hegemony? International Studies Review, 10 (4), 749–​761. Callahan, W.A., 2012. Tianxia, Empire and the World:  Chinese Visions of World Order for the Twenty-​First Century. In: W.A. Callahan and E. Barabantseva, eds. China Orders the World: Normative Soft Power and Foreign Policy. Baltimore: Johns Hopkins University Press. Campbell, K., 2010. Testimony Before the House Committee on Foreign Affairs Subcommittee on Asia, the Pacific, and the Global Environment. US House Foreign Affairs Committee, 17 November. Carter, A., 2015. IISS Shangri-​La Dialogue: “A Regional Security Architecture Where Everyone Rises”. US Department of Defense, 30 May. Available from www. defense.gov/​Newsroom/​Speeches/​Speech/​Article/​606676/​iiss-​shangri-​la-​dialogue-​ a-​regional-​security-​architecture-​where-​everyone-​rises/​. Carter, A., 2016. Remarks on “Asia-​Pacific’s Principled Security Network” at 2016 IISS Shangri-​La Dialogue. US Department of Defense, 4 June. Available from www.defense.gov/​Newsroom/​Speeches/​Speech/​Article/​791213/​remarks-​on-​asia-​ pacifics-​principled-​security-​network-​at-​2016-​iiss-​shangri-​la-​di/​. Chaleff, I., 2009. The Courageous Follower Standing Up To & For Our Leaders. 3rd ed. San Francisco: Berrett-​Koehler. Collinson, D., 2006. Rethinking Followership:  A Post-​ Structuralist Analysis of Follower Identities. The Leadership Quarterly, 17 (2), 179–​189. Department of Defense, 2012. Sustaining US Global Leadership:  Priorities for 21st Century Defense. Washington, DC: Department of Defense. Department of Defense, 2014. Quadrennial Defense Review 2014. Washington, DC: Department of Defense. Department of Defense, 2015a. The Asia-​Pacific Maritime Security Strategy: Achieving US National Security Objectives in a Changing Environment. Washington, DC: Department of Defense. Department of Defense, 2015b. Concept for Access and Maneuver in the Global Commons (JAM-​GC). Washington, DC: Department of Defense. Diefenbach, T., 2013. Hierarchy and Organisation:  Toward a General Theory of Hierarchical Social Systems. 1st ed. New York: Routledge. Donnelly, J., 2006. Sovereign Inequalities and Hierarchy in Anarchy: American Power and International Society. European Journal of International Relations, 12 (2), 139–​170. Dreyer, J.T., 2015. The ‘Tianxia Trope’: Will China Change the International System? Journal of Contemporary China, 24 (96), 1015–​1031. Etzioni, A., 2016. Freedom of Navigation Assertions: The United States as the World’s Policeman. Armed Forces & Society, 42 (3), 501–​517.

42  Tanguy Struye de Swielande Flemes, D., 2009. Regional Power South Africa: Co-​Operative Hegemony Constrained by Historical Legacy. Journal of Contemporary African Studies, 27 (2), 135–​157. Follett, M.P., 1924. The Creative Experience. New York: Longmans Green. Fravel, M.T., 2014. US Policy Towards the Disputes in the South China Sea Since 1995 (SSRN Scholarly Paper No. 2469832). Rochester, NY:  Social Science Research Network. Freier, N., 2016. Outplayed: Regaining Strategic Initiative in the Gray Zone. Carlisle, PA: Strategic Studies Institute, US Army War College Press. Goethals, G.R., Sorenson, G.J., and Burns, J.M., eds., 2004. Encyclopedia of Leadership. Thousand Oaks, CA: SAGE Publications. Graham, E., 2016. US Navy Carries Out Third FONOP in South China Sea. The Interpreter, 10 May. Harlan, C. and Whitlock, C., 2012. US Likely to Scale Down Plans for Bases in Japan and Guam. Washington Post, 9 Feb. Hicks, K., 2014. When Is Selective Engagement too Selective? [online]. Center for Strategic and International Studies. Available from www.csis.org/​analysis/​when-​ selective-​engagement-​too-​selective [Accessed 14 Mar 2020]. Hollander, E.P., 2009. Inclusive Leadership: The Essential Leader–​Follower Relationship. New York: Routledge. Kennedy, P., 1987. The Rise and Fall of the Great Powers. 1st ed. New York: Vintage  Books. Kissinger, H., 1994. Diplomacy. New York: Simon & Schuster. Krepinevich, A.F., 2010. Why AirSea Battle? Washington, DC: Center for Strategic and Budgetary Assessments. LaGrone, S., 2016. US Warship Conducts South China Sea Freedom of Navigation Operation. USNI News, 21 Oct. Layne, C., 2011. The Unipolar Exit: Beyond the Pax Americana. Cambridge Review of International Affairs, 24 (2), 149–​164. Layne, C., 2012. The (Almost) Triumph of Offshore Balancing. The National Interest, 27 January. Available from https://​nationalinterest.org/​commentary/​ almost-​triumph-​offshore-​balancing-​6405. Lieber, R.J., 2016. Diplomacy’s Aversion to Power: Consequences of Retreat. World Affairs, 179 (1), 35–​45. Lippmann, W., 1943. US Foreign Policy:  Shield of the Republic. Boston:  Little, Brown & Co. Lizza, R., 2011. Leading from Behind. The New Yorker, 26 April. Available from www. newyorker.com/​news/​news-​desk/​leading-​from-​behind. Macdonald, P.K. and Parent, J.M., 2011. Graceful Decline? The Surprising Success of Great Power Retrenchment. International Security, 35 (4), 7–​44. Medeiros, E.S., Crane, K., Heginbotham, E., Levin, N.D., Lowell, J.F., Rabasa, A., and Seong, S., 2008. Pacific Currents: The Responses of US Allies and Security Partners in East Asia to China’s Rise. 1st ed. Santa Monica, CA: RAND Corporation. Ministry of Defense, 2015. Joint Statement by US Secretary of Defense Ash Carter and Singapore Minister for Defence Dr. Ng Eng Hen. US Department of Defense, 7 December. Available from www.defense.gov/​Newsroom/​Releases/​Release/​Article/​ 633200/​joint-​statement-​by-​us-​secretary-​of-​defense-​ash-​carter-​and-​singapore-​ minister-​for-​defence/​. Nabers, D., 2008. Leadership and Discursive Hegemony in International Politics. Paper presented at the Regional Powers Network Conference, German Institute of Global and Area Studies, Hamburg, Germany.

Rebalance under the Obama administration  43 Office of the United States Trade Representative, 2016. US and ASEAN Trade Ministers Strengthen Trade Ties [online]. Office of the United States Trade Representative. Available from https://​ustr.gov/​about-​us/​policy-​offices/​press-​office/​press-​releases/​ 2016/​february/​us-​and-​asean-​trade-​ministers [Accessed 30 Mar 2020]. Parameswaran, P., 2015. US Launches New Maritime Security Initiative at Shangri-​ La Dialogue 2015. The Diplomat, 2 June. Paul, M., 2016. The United States, China and the Freedom of the Seas: Washington’s FONOPs Conflict with Beijing (No. SWP Comment 2016/​C 15). Berlin:  Stiftung Wissenschaft und Politik (SWP), Deutsches Institut für Internationale Politik und Sicherheit, Posen, B., 2014. Restraint:  A New Foundation for US Grand Strategy. Ithaca, NY: Cornell University Press. Posen, B. and Ross, A.L., 1996. Competing Visions for US Grand Strategy. International Security, 21 (3), 5–​53. Sa, H. and Resnick, E., 2015. Reciprocal Salami-​Slicing in East Asia (RSIS Commentary No. CO15275). Singapore: RSIS, Nanyang Technological University. Spencer, E., ed., 2014. “By, With, Through”:  A SOF Global Engagement Strategy. Kingston, ON: Canadian Defense Academy Press. Struye de Swielande, T., 2012. The Reassertion of the United States in the Asia-​Pacific Region. Parameters,  75–​89. Struye de Swielande, T., 2015. Duel entre l’aigle et le dragon pour le leadership mondial. Brussels: Peter Lang. Struye de Swielande, T., 2018. Première puissance mondiale en 2049? La stratégie de la pieuvre chinoise à l’oeuvre. Diplomatie, 45, 54–​59. Struye de Swielande, T., 2019. Middle Powers in the Indo-​Pacific: Potential Pacifiers Guarantying Stability in the Indo-​Pacific? Asian Politics & Policy, 11 (2), 190–​207. Sweijs, T., Oosterveld, W.T., Knowles, E., and Schellekens, M., 2014. Why Are Pivot States so Pivotal? The Role of Pivot States in Regional and Global Security. The Hague: The Hague Centre for Strategic Studies. Taliaferro, J.W., 2001. Security Seeking Under Anarchy: Defensive Realism Revisited. International Security, 25 (3), 128–​161. Tang, S., 2010. A Theory of Security Strategy for Our Time:  Defensive Realism. New York: Palgrave Macmillan. Tessman, B.F., 2012. System Structure and State Strategy:  Adding Hedging to the Menu. Security Studies, 21 (2), 192–​231. The United States of America and Japan, 1960. Treaty of Mutual Cooperation and Security Between Japan and the United States of America. Available from www. cia.gov/​library/​readingroom/​docs/​CIA-​RDP07-​00469R000100950001-​2.pdf. The White House, 2015a. National Security Strategy. Washington, DC: The White House. The White House, 2015b. US–​Japan Joint Vision Statement. Available from https://​ obamawhitehouse.archives.gov/​ t he-​ p ress-​ o ffice/ ​ 2 015/ ​ 0 4/ ​ 2 8/ ​ u s- ​ j apan- ​ j ointvision-​statement. United States Army, 2012. Joint Operational Access Concept (JOAC). Available from https://​archive.defense.gov/​pubs/​pdfs/​JOAC_​Jan%202012_​Signed.pdf. Van Evera, S., 1990. Why Europe Matters, Why the Third World Doesn’t: American Grand Strategy After the Cold War. Journal of Strategic Studies, 13 (2), 1–​51. Velut, J.-​B., 2014. La politique commerciale des Etats-​Unis au service des ambitions stratégiques américaines. In:  M. Kandel and M. Quessard-​ Salvaing, eds. Les

44  Tanguy Struye de Swielande stratégies du smart power américain:  Redéfinir le leadership dans un monde post-​ américain. Paris: Ecole Militaire. Wagner, B.K., 2016. Lessons from Lassen:  Plotting a Proper Course for Freedom of Navigation Operations in the South China Sea. Journal of East Asia and International Law, 9 (1), 137–​166. Xinhua, 2009. Clinton: US, Indonesia to Form Comprehensive Partnership. Xinhua, 19 Feb.

2  ‘The Dialogue of East and West’ Joseph Needham revisited Bart Dessein

Introduction In 1955, Joseph Needham delivered a presidential address to the Britain–​ China Friendship Association, entitled ‘The Dialogue of East and West’ (Needham 1969, 11–​30). The opening lines of this lecture read as follows: For three thousand years, a dialogue has been going on between the two ends of the Old World. Greatly have they influenced each other, and very different are the cultures they have produced. We have now good reason to think that the problems of the world will never be solved so long as they are considered only from a European point of view. It is necessary to see Europe from the outside, to see European history, and European failure, no less than European achievement, through the eyes of that larger part of humanity, the peoples of Asia (and indeed also of Africa). (p.11) In this lecture, Needham argues that since modern science and technology have developed in Europe after the period of the Renaissance, and since modern science and technology have become the science and technology of the world, the West has taken on the attitude that it is self-​evident that everything else should become shaped after the Western viewpoints as well. This European attitude of applying Western categories to a non-​Western (i.e. Chinese) object is characteristic for the modernity concept. When a given category is not found in the Chinese counterpart, it is not the validity of the categorization as such that is put to question, but the validity of the object. An important outcome of this process in which the question is posed, why does the Chinese object not conform to the ‘universal’ Western categorization?, is that the non-​West (i.e. China) is valued as sub-​standard and as lagging behind in a spatio-​temporal hierarchy. That is to say, the object is interpreted as not having reached the level of ‘modernity’ of the West yet. This ‘lagging behind’, it should be noted, also applies to the issue of the position of and the value attributed to law.

46  Bart Dessein One possible reaction of the non-​West is to redefine their own tradition according to the ‘modern’ categories, and thus to try to catch up with the ‘advanced West’. For China, Thomas A. Metzger (2012) formulated this as follows: ‘From this normative standpoint, modern Chinese history essentially is the story of a troubled progression toward increasing discontinuity with the Chinese tradition and increasing convergence with Western modernity’ (238).1 How, then, can we, against the above background, explain the apparent contradictory tendency of a reviving Confucianism in contemporary China? Indeed, China may have become one of the leading economic powers in the world through adopting ‘universal’ Western science and technology, but it is also increasingly becoming evident that the country is not automatically ‘harmonizing’ with the values –​including the domain of the juridical –​of Western Enlightenment thinking. This does not only suggest that the ‘ideological conflict’ between East and West that was addressed by Joseph Needham in the above quoted words continues, but it also raises the question as to the extent to which a self-​confident China is able, to refer to the words of Joseph Needham, ‘to see China from the outside, to see Chinese history, and Chinese failure, no less than Chinese achievement, through the eyes of that larger part of humanity, the peoples of Europe (and indeed also of Africa)’. The following pages will therefore elaborate on China’s return to Confucian concepts that is concomitant with the country’s (self-​proclaimed) return on the world stage, as well as on the relation between this rediscovered Confucianism and what may be perceived as an increasingly offensive Chinese nationalism that comes along with a military build-​up.2 It will hereby be discussed how practical policies –​including those policies that regard such issues as the conflict over the East and South China Seas  –​are also the outcome of much deeper philosophical convictions, and risk to jeopardize any true ‘he er bu tong 和而不同’ (harmony without sameness), the Confucian aphorism that resurfaces in China’s international relations rhetoric and that follows suit to such expressions as ‘peaceful rise’ (heping jueqi 和平崛起), ‘peaceful development’ (heping fazhan 和平發展), ‘harmonious society’ (hexie shehui 和諧社會) and ‘harmonious world’ (hexie shijie 和諧世界).3 A failure of a true ‘he er bu tong’ will unavoidably render the creation of a world of ‘great unity’ (datong 大同) –​that other Confucian concept –​as utopian as it has always been.

Harmony in traditional Confucian society The concept ‘he er bu tong’ –​harmony without sameness –​is first mentioned in the Lunyu 論語 (Analects, n.d.), a work that assembles all aphorisms attributed to Confucius (trad. 551–​479 BCE) and that must have been compiled by later generations of disciples, based on the notes of Confucius’s direct disciples.4 Lunyu 13.23 more precisely states: ‘The Master said: “Cultivated persons harmonize, but do not equalize; ordinary men equalize, but do not harmonize”; 子曰，君子和而不同 ，小人同而不和’ (Lunyu, Zi Lu, n.d.). The judgment that ordinary men are inferior to noblemen that is evident from this saying

Joseph Needham revisited  47 is also visible in Lunyu 8.9, where we read: ‘The Master said: “The common people can be made to follow it [i.e. the Confucian Way], but they cannot be made to understand it”; 子曰，民可使由之，不可使知之’ (Lunyu, Tai Bo, n.d.). This statement not only judges ordinary men morally inferior to noblemen, as Lunyu 13.23 did, but also judges them intellectually inferior. Furthermore, the Mengzi (n.d.), the work attributed to Confucius’s disciple, Mengzi (ca. 371–​289 BCE), judges the common people in this way. In Mengzi 孟子 7A5, we read: ‘Mencius said: “The multitude do not realize what it is they practice, do not examine what they repeatedly do, and do not understand the path they follow all their lives”; 孟子曰，行之而不著焉，習矣而不察焉, 終身由之而不知其道者，眾也‘ (Jin Xin I; see also El Amine 2015, 33). When Confucianism was installed as state orthodoxy in 136 BCE,5 the views of Xunzi (ca. 300–​230 BCE) gained prominence.6 In line with the above ideas of Confucius and Mengzi, Xunzi stated the following (Xunzi 8.7): ‘For the common people, inner power consists in considering goodness to be following customary usages, considering the greatest treasure to be wealth and material possessions, and taking the highest Way to be nurturing one’s life; 以從俗為善，以貨財為寶，以養生為己至道是民德也’.7 That, on the one hand, common people are primarily oriented towards the satisfaction of their direct material needs and, on the other hand, material goods are in short supply, explains why Xunzi insists on the importance of drawing boundaries between social classes. In Xunzi 5.4, he states: What is it that makes a man human? I  say that it lies in his ability to draw boundaries. […] Of such boundaries, none is more important than that between social classes (fen 分). Of the instruments for distinguishing social classes, none is more important than ritual principles (li 禮) 人之所以為人者何已也 ，曰以其有辨也 […] 辨莫大於分，分莫大 於禮.8 According to Xunzi, rituals that are in accordance with social order –​itself a faculty of the intellect –​avoid that everyone feels entitled to the same things, which would, given the scarcity of goods, lead to chaos (luan 亂). It is human intellect that creates these rituals in conformance with social distinctions. As Loubna El Amine (2015) states:  ‘Rituals, by clarifying positions and social distinctions, contribute to the avoidance of conflict in society, because they have the ability to assure that commoners delay the immediate satisfaction of their desires, and thus create order (zhi 治)’ (99). While such rituals may, on the one hand, provide a guideline for individual proper conduct, they, on the other hand, also serve to adjust this same individual conduct to the needs of society at large (El Amine 2015, 92). This makes the Confucian political order ‘a simple idea: the administration of people who live together in a given territory for the sake of security and cooperation’ (El Amine 2015, 29). Therefore, as Heiner Roetz (1998) stated, ‘in general, the Confucians legitimize political rule as a precondition of a safe, peaceful, and

48  Bart Dessein civilized living together of men in a hierarchical society organized by division of labor’ (91). The common people are thus expected to behave in such a way that an orderly society that is ruled by the Confucian elite is not disturbed. A ‘harmonious society’, to again quote El Amine (2015) is ‘achieved through the maintenance of a system of rituals (li) that all members of society abide by’ (14). In Xunzi 4.11, we thus read that social distinctions (fen) ‘will cause anyone born to the world to consider the long view of things and think of the consequences, thereby protecting a myriad of generations; 將為天下生民之屬長慮顧後而保萬世也’.9 It goes without saying that political participation of the masses has no place in such a hierarchically structured society (Pines 2009, 209–​211). Moreover, as in the Confucian society, rituals as publicly visible patterns of behaviour functioned to maintain social distinction over generations, Michael Nylan (2008) has claimed that:  ‘These rituals further had the possibility to bestow on the commoners a sense of belonging to an “imagined community” of supremely civilized subjects of the realm’ (61).10 Prior to Xunzi, such a state view had already been expressed by Mencius when he stated (Mengzi 3A4): ‘There are those who use their minds and there are those who use their muscles. The former rule (zhi 治); the latter are ruled; 或勞心，或勞力，勞心者，治人，勞力者，治於人’. This suggests that ‘People should learn about rites (li 禮) and right conduct (yi 義)’.11 In a previous publication (Dessein 2016), I have outlined the ‘international’ ramifications that the establishment of the territorially unified Qin empire in 221 BCE, the installation of Confucianism as state orthodoxy in the succeeding Han dynasty (206 BCE–​220 CE), and the development of this unified empire as the dominant economic power in the East and Southeast Asian regions have had on the way the Chinese Confucian elites perceived their own country and the surrounding world. Their perception of the world was laid down in the politico-​cultural concept ‘all-​under-​heaven’ (tianxia 天下). ‘All-​under-​heaven’ comprised the world as it was known at any particular moment in time, and this world was interpreted in terms of the co-​ existence of Chinese and non-​Chinese (yi 夷) who surrounded them and who did not follow the ‘Chinese way’ (Townsend 1996; Harnisch 2016, 39–​40). This worldview is devoid of political or other borders or boundaries (i.e. tianxia) and is a universalizing cultural concept. This universalizing aspect was succinctly laid out in the 39th chapter of the Han dynasty Confucian political handbook Liji 禮記 (Records of Ritual, n.d.). The concerned passage is translated as follows by Wing-​tsit Chan: The ancients who wished to manifest their clear character to the world would first bring order (zhi 治) to their states. Those who wished to bring order to their states would first regulate their families. Those who wished to regulate their families would first cultivate their personal lives. Those who wished to cultivate their personal lives would first rectify their minds. Those who wished to rectify their minds would first make their

Joseph Needham revisited  49 wills sincere. Those who wished to make their wills sincere would first extend their knowledge. The extension of knowledge consists in the investigation of things. When things are investigated, knowledge is extended; when knowledge is extended, the will becomes sincere; when the will is sincere, the mind is rectified; when the mind is rectified, the personal life is cultivated; when the personal life is cultivated, the family will be regulated; when the family is regulated, the state will be in order; and when the state is in order, there will be peace throughout the world. (W. Chan 1963, 84) 古之欲明明德於天下者，先治其國；欲治其國者，先齊其 家；欲齊其家者，先修其身；欲修其身者，先正其心；欲 正其心者，先誠其意；欲誠其意者，先致其知，致知在 格物。物格而後知至，知至而後意誠，意誠而後心正, 心正而後身修，身修而後家齊，家齊而後國治，國治而後天下平。12 The origin of this worldview is the politico-​cultural reality of the Han empire. Historical developments that impacted the contours of the unified Han empire therefore had their ramifications for the perception of ‘all-​under-​ heaven’. The ascendance to the throne of an ethnic non-​Han ruling house, with their Tang dynasty (618–​907 CE), after a period of disunity of the Chinese empire that had started with the fall of the Han dynasty in 220 CE, had as an important consequence that the earlier Han tianxia concept, which had been characterized by a ‘self’–​‘other’ dichotomy, was reinterpreted as a form of benign pluralism.13 This shows that cultural contacts of China with its neighbouring territories influenced China as much as China influenced others. A similar phenomenon of interculturalism occurred when the Chinese cultural sphere was, between 1279 and 1368, incorporated in the Mongolian Yuan empire, and when in 1403, Zhu Di, the fourth son of the Hongwu Emperor, founder of the Ming dynasty (1368–​1644), usurped the throne and installed himself as the Yongle Emperor (r. 1403–​1426). Disagreeing with his father’s policy of isolationism, Zhu Di decided to reorient China towards the world. This was epitomized in the famous sea voyages that Zheng He (1371–​1433) undertook between 1405 and 1433 and that brought him to over 30 countries in Southeast and South Asia, and on the west coast of Africa. Upon the death of Zheng He, the Xuande Emperor (r. 1426–​1435), the successor to the Yongle Emperor, discontinued the voyages and issued a ban on all overseas maritime activities (haijin 海禁). China thus returned to its traditional terrestrial orientation.14 Whereas the Mongol rulers had combined their traditional structures and policies with those of the Chinese, the Manchu rulers of the last imperial dynasty, the Qing (1644–​1911), adopted Chinese Confucianism as state doctrine. An important consequence of the Manchus’ choice to adopt Confucianism was that the traditional Confucian elites became convinced of the ‘transformative’ capacity of Confucianism. That is to say, the Confucian

50  Bart Dessein elites were convinced that Confucianism was able to ‘Confucianise’ non-​ Chinese and that ‘all-​under-​heaven’ was thus bound to be a Confucian unity. This ‘Chinese’–​‘not yet (fully) Chinese’ dichotomy need not necessarily imply a negative or confrontational relationship:  the ‘transformative’ capacity of Confucianism was thought to allow for a peaceful incorporation of the yi into the Chinese (Harnisch 2016, 40). The ‘Huang-​Qing zhigong tu’ 皇清職貢圖 (‘Descriptions from the Tributary Offices of the August Qing’), a work finished in 1757, suggests that even Europe could become part of this new interpretation of ‘all-​under-​heaven’ (Dessein 2016, 27).15

Image and self-​image of the West After they had defeated Napoleon (1769–​1821) in the ‘Battle of Paris’ in 1814, the coalition of Russia, Prussia, and Austria forced him to abdicate and go into exile. Very soon after, the ‘Congress of Vienna’, chaired by the Austrian, Klemens von Metternich (1773–​1853), was convened. The aim of the Congress –​in which Britain and France also participated –​was to provide long-​term peace in Europe through redrawing national borders in the sense that the different national territories would keep each other in balance.16 After nine months of deliberations and discussions –​that continued even in the hundred days’ period during which Napoleon had, upon his return from exile, resumed power in France until he was finally defeated at Waterloo in 1815 –​the final act of the Congress of Vienna was signed in June 1815.17 This means that the Congress of Vienna took place under circumstances in which Europe had gained a huge advantage over other parts of the world because of its modern science and technology (Pomeranz 2000).18 It may have been this technological superiority that, as claimed by Hans J. Morgenthau, had convinced the participating countries in the Congress of Vienna that no great power would ‘take up arms against another great power in order to expand into the politically empty spaces of Africa and Asia’ (Morgenthau 1948, 369). The importance of this assessment of the Congress of Vienna is that Asia (and Africa) were denied a political system of their own (i.e. a civilizational boundary, beyond which people lived who were thought to be politically inferior; Yurdusev 2003, 126–​145). Rather than squabbling over supremacy in Europe, the 19th-​century political choice was, according to Kimberly Hutchings (2008), understood to be either ‘the gradual reproduction of all parts of the world in the image of the West’, or ‘descent into irrationality’ (156). It is in this spirit of European supremacy that the British –​and later, other European nations –​forced China to open its borders. The Qing dynasty had gone into decline because of internal political and economic difficulties, preventing it from defending itself in this conflict. With its defeat in the First Opium War (Yapian zhanzheng 鴉片戰爭; 1839–​1942) the so-​called ‘century of humiliation’ (bainian guochi 百年國耻), characterized, among others, by the conclusion of ‘unequal treaties’ (bu pingdeng tiaoyue 不平等條約), started.19 This explains why Liang Qichao (1873–​1929), reminiscent of the traditional Confucian ‘he

Joseph Needham revisited  51 er bu tong’ concept, characterized the difference between a colonizing Europe and the peoples of Asia and Africa as the difference between ‘white races not turning away from competition’ and ‘other races preferring peace’ (白人 之優於他種人者何也？[…] 他種人狃於和平，白種人不辭競爭).20 For many Chinese political thinkers and intellectuals of the period, a return to a harmonious ‘all-​under-​heaven’ approach (i.e. a world in which China would enjoy an ‘equal’ (pingdeng 平等) status with Western countries) prevailed. In this, they did not preclude that, in the distant future, cooperation in a world of ‘great unity’ (datong) might be possible, but equality was seen as the necessary condition for such a possible cooperation.21 This also explains why Mao Zedong (1893–​1976), in his speech, ‘On the People’s Democratic Dictatorship’ (Lun renmin minzhu zhuanzheng 论人民民主专政), given on 30 June 1949 on the occasion of the commemoration of the 28th anniversary of the founding of the Chinese Communist Party (Zhongguo gongchandang 中國共產黨; CCP) –​ and a few months before he proclaimed the establishment of the People’s Republic of China (PRC) from the Gate of Heavenly Peace  –​urged ‘New China’ to ‘unite in a common struggle with those nations of the world which treat us as equals’ (在国外，联合世界上以平等待我的民族和各国人民，共 同奋斗).22 Not only the CCP, by the mouth of Mao Zedong, but also the Nationalist Party (Guomindang 國民黨; GMD) endeavoured to re-​install a harmonious ‘all-​under-​heaven’ philosophy.23 Two treaties signed on 11 January 1943 were important steps in such a redressing of the ‘unequal treaties’: in Washington, the ‘Sino–​American Treaty for the Relinquishment of Exterritorial Rights in China and the Regulations of Related Matters’ was signed between the United States and China, and in Chongqing, Britain and China signed the ‘Sino–​ British Treaty Relating to the Abrogation of Extraterritoriality in China’ (Ministry of Foreign Affairs 1958, 589–​602, 659–​668). An important outcome of this was that, in the minds of the people, redressing China’s historical humiliation and restoring its stature in the world was confined to political parties  –​a novel political organization for China, adopted from Europe. Put differently, ‘the attainment of China’s equality was identified with the fate of the party that provided the road map for China’s future through consistent recourse to the Unequal Treaties story’ (Wang Dong 2003, 408). This explains why, when the Nationalist Party acknowledged this historical mission through issuing ‘A Letter to all Servicemen and Masses at the Conclusion of the New Equal Treaties Between China and the US, and between China and Britain’ (Jiang 1984, 4–​7) in which the Party’s contribution to this glorious event was highlighted, the CCP published an editorial in the Jiefang Ribao (Liberation Daily) of 4 February 1943 titled ‘The Chinese Communist Party and the Termination of the Unequal Treaties’. In this article, they claimed that the abolishment of the Unequal Treaties was an accomplishment of the Communist Party. The lingering importance that exists for both the GMD and the CCP to be the leading organization in the task of redressing the past and making China an ‘equal’ partner in the world again

52  Bart Dessein (Zhongyang dang’an guan 1992, 18), is valued in the following words by Dong Wang: ‘bupingdeng tiaoyue as a tool of patriotic education in the construction of a common culture of Chinese-​ness still obtains some sort of endorsement from both sides across the Taiwan Strait’ (Wang Dong 2003, 422). In territorial terms, this also explains why the ‘Nine-​Dash Line’ (jiu duan xian 九段線 /​ 九段线) that demarcates the area of the South China Sea and that was first used by the government of the Republic of China, was subsequently also used by the government of the People’s Republic, and helps to explain why both the People’s Republic of China and the Republic of China rejected ‘The Hague ruling of 2016’.24 The concept of Westphalian sovereignty (i.e. the principle of international law that each nation-​state has exclusive sovereignty over its territory, and that no external power has the right to interfere in another country’s domestic affairs) is, one could claim, brought into the Chinese cultural concept of tianxia, with which China lays a historical claim on the sovereignty over islands in the South China Sea.

Building a new harmony During the ‘century of humiliation’, the conviction had grown that developing an advanced science and technology were the prerequisites for China to regain its historical position in the world. Although the CCP’s relations with the Communist Party of the Soviet Union were far from excellent, post-​World War II realities were such that Mao Zedong saw Stalin’s Soviet Union as his best chance to acquire funds, and scientific and technical aid, to start building his ‘New China’. Hence, on 14 February 1950, he and Stalin signed the ‘Sino-​Soviet Treaty on Friendship, Alliance and Mutual Assistance’ (Zhong-​ Su youhao tongmeng huzhu tiaoyue 中蘇友好同盟互助條約). Despite this agreement, suspicion and distrust would continue to characterize China’s relations with the Soviet Union. Interpreted from the perspective of the traditional ‘all-​under-​heaven’ concept, the troubled relations with the Soviet Union can be explained as that, in the framework of the China–​Soviet Union alliance, it was the Soviet Union that set the model, not China. This fundamentally disrupted China’s goal to regain its central position in the world (Chen 2005, 43). It also explains why China oriented itself towards other Asian and African countries. Towards these countries, the CCP could present its victory over the Western-​supported Guomindang army in 1949 and the subsequent expulsion of Western powers from Chinese territory as an example to be followed.25 After the ‘Asian Countries Conference’, co-​organised by China, had been held in New Delhi from 6 to 10 April 1955, it was especially during the famous Bandung Conference of 18 to 24 April 1955 that China portrayed itself in this model role (de Swielande 2012, 333).26 It was also during the Bandung Conference that the so-​called ‘Five Principles of Peaceful Coexistence’ (Heping gongchu wu xiang yuanze和平共處五項原則:  mutual respect for territorial integrity and sovereignty, mutual non-​aggression, non-​ interference in each other’s internal affairs, equality and mutual benefit, and

Joseph Needham revisited  53 peaceful coexistence) were formulated as China’s foreign policy principles. These Five Principles have also been the basis for the creation of the Non-​ Aligned Movement that dominated the period of the Cold War, and for the later foundation of South–​South Cooperation (Choucri 1969; Manning 1986, 147; Duggan 2016, 207).27 When, as a result of the ‘Great Leap Forward’ (da yue jin 大躍進), the Soviet Union retracted its aid from China and the Sino–​Soviet Agreement was discontinued, China could showcase this as a sign of the untrustworthiness of the superpowers. The break with the Soviet Union also inspired Mao Zedong to propose a Chinese version of socialist internationalism and to start an attempt to establish a united front of all anti-​imperialist powers in 1963 (Näth 1975, 259–​268).28 In this way, Zhou Enlai’s (1898–​1976) visit to a series of African countries in December 1963 and February 1964 had as an important outcome that these countries no longer recognized the GMD government –​and thus the Republic of China –​as representing China, but shifted to the PRC,29 eventually also voting the PRC into the United Nations. It was at this very moment, during which the new ‘all-​under-​heaven’ approach started to take shape, that the economic and political chaos brought about by the Great Proletarian Cultural Revolution (wenhua da geming 文化大革命) forced China to drastically reduce its foreign aid.30 International developments in the 1970s and 1980s further halted China’s efforts to project itself as the new model for the developing world, and proved that China was not (yet) the perfect Confucian older brother it wanted to be.31 Isolated by the West as a reprisal for the events of June 1989, Deng Xiaoping undertook his famous ‘Southern Tour’ (nanxun 南巡) in 1992, aimed at re-​ boosting China’s economic development and reviving the country’s international relations. In a series of talks, China’s coastal provinces were urged to speed up economic reform, and Guangdong Province, in particular, was asked to catch up with the so-​called ‘Asian Economic Tigers’ (Singapore, Taiwan, and Hong Kong; Tian 2001, 75). As foreign investments started to pour into China’s coastal provinces and a widening gap between these regions and the rest of the country appeared, Deng Xiaoping also urged that, to avoid economic and political ‘chaos’ (luan), investment and development would have to be focused more on the interior provinces by the end of the 20th century. This strategy was continued by Jiang Zemin (1926–​), China’s State President from 1993 to 2003, and by Hu Jintao (1942–​), China’s State President from 2003 to 2013. Alison Adcock Kaufman (2010, 11–​ 12) has discerned three consecutive strategies that China has taken in global affairs:  (1) China, given the fact that the world stage is still dominated by Western powers and values, remains cautious in actions with these strong nations; (2) China, convinced of the fact that it has developed to be an ‘equal’ power in the world, plays a prominent role in world affairs; and (3)  China is inspired by the conviction that the country has developed such that it is now capable of fundamentally reshaping the existing world order. The first option was the one chosen

54  Bart Dessein by Deng Xiaoping (his famous ‘hiding brightness, nourishing obscurity’; taoguang yanghui 韬光养晦) and during the first period of the Hu Jintao era. For example, in a speech he delivered on 24 December 2004 on the main tasks of the People’s Liberation Army (PLA), Hu Jintao was clearly convinced of the dominance of Western powers when he warned that ‘Western hostile forces have not given up the wild ambition of trying to subjugate us, intensifying the political strategy of Westernizing and dividing up China’ (J. Hu 2004; Kaufman 2010, 12–​13). By 2008, however, the second strategic option had come to the fore. This change in attitude might have been partly inspired, on the one hand, by the fact that the Deng Xiaoping policies had made China emerge as the economic centre of East and Southeast Asia and, on the other hand, by the effects of the financial and economic crises that hit the Western world. Illustrative for this new attitude is that China’s 2008 Defense White Paper declares that China has become an important member of the international system, and the future and destiny of China have been increasingly closely connected with the international community. China cannot develop in isolation from the rest of the world, nor can the world enjoy prosperity and stability without China. (Information Office of the State Council of the PRC 2009; Kaufman 2010)32 In political rhetoric, it was stressed that China had become an ‘equal’ to other nations, and that the nation could thus engage in dialogue with other nations, whereby the goal was to seek mutual understanding.33 Having become engaged in an increasing number of organizations of global governance (Duggan 2014), China subsequently established the ‘Asian Infrastructure Investment Bank’ (Yazhou jichu sheshi touzi yinhang 亞洲基礎設施投資銀行) in 2013, launched the ‘One Belt One Road’ (yi dai yi lu一帶一路) initiative in the same year, and established the country’s first overseas military base in Djibouti in 2017.34 These initiatives exceeded the regional importance of earlier Chinese initiatives, such as the establishment of the ‘Shanghai Cooperation Organization’ (Shanghai hezuo zuzhi 上海合作组织) in 2001. This shows that China has started to take up a more proactive role in the global world, and, concomitant with this, is evidence that China has started to increasingly portray itself as an alternative normative power. This new strategic option incarnates the conviction that ‘the rise of China is bound to bring about a realignment of the international power structure, changes to the rules of the game, as well as redistribution of the wealth of the world’ (Kaufman 2010, 24).35 One might claim that this recent development is the contemporary expression of Mao’s bold declaration in 1949, at the moment the triumph of the CCP seemed certain, that ‘China has stood up’ (Kaufman 2010, 11).36

Joseph Needham revisited  55 The Western world has indeed perceived China’s recent initiatives on the global scene as potentially reshaping the existing world order. The question has thus been raised regarding what China’s future role as a ‘responsible stakeholder’ may be. This question comprises the viewpoint that it is only when China complies with the current world order and the existing institutes of global governance that it can be truly regarded as such. The 2016 ruling in The Hague on the South China Sea and China’s (both the PRC and the ROC) reaction to this ruling are an interesting case in this respect as it shows –​as stated above –​that it is increasingly becoming evident that the country is not automatically ‘harmonizing’ with the values  –​including the domain of the juridical –​of Western Enlightenment thinking. Phrased differently, the normative appeal of the West appears to be increasingly exchanged for a revaluation of their own Chinese norms and values. Randall Peerenboom has, in this respect, discerned a series of factors that determine whether or not ‘the other’ is taken as the norm: the prestige, power, and normative appeal of the exporter; the prestige, power, and normative appeal of the local (domestic) promoters, especially when there is division among the ruling elite as to which path to take; interest group politics –​who will benefit and who will be harmed?; the nature and relative robustness of civil society; economic factors (GDP per capita, growth rates, amounts of foreign direct investment, distribution of wealth, degree of marketization, and whether the money was earned through broad-​based market activities or is ‘easy’ money derived from the sale of oil or other natural resources); the nature of the political regime; and the institutional capacity to implement reforms (Peerenboom 2007, 191–​192). It thus appears that China’s economic success (in comparison to the European economic and financial crises), combined with a not-​yet-​fully-​developed institutional reform and an immature civil society, have increasingly convinced China of its own values. This case shows that becoming (China) and being (Europe) a new normative power are all about being recognized as one by other powers. This is also where the revaluation of Confucianism in contemporary China comes in.

Making sense of the ‘Chinese Dream’ of a ‘Harmonious World’ Together with China’s more proactive stance in the global world, the concept of ‘harmonious world’ (hexie shijie) has been introduced in political rhetoric as successor to the terms ‘peaceful rise’ (heping jueqi), ‘peaceful development’ (heping fazhan), and ‘harmonious society’ (hexie shehui). The importance of this new term appears to be that, unlike the earlier terms, it projects ‘Chinese values’ on the world at large and thus comprises a ‘universal’ aspect.37 In the introduction to this chapter, I  stated that it has been an important consequence of characterizing Western values as superior to those of other parts of the world, that these other parts of the world were displaced as ‘sub-​ standard’ and as lagging behind in a spatio-​temporal hierarchy. Much in

56  Bart Dessein line with the spirit of the ‘Congress of Vienna,’ when portraying themselves as ‘civilizer states’ who bring liberal democracy as a superior system to the not-​yet-​liberated world, the post-​World War II United States and Western Europe have thus regarded China as politically behind (Shih and Huang 2016, 63). The return of Confucius in China’s political rhetoric with such age-​old Confucian concepts and values as the concept ‘harmonious world’ is illustrative of a more profound attitude to no longer redefining the Chinese tradition in European terms as was done from the late-​19th century onwards, but to reinterpret the European tradition in Chinese terms (Gaenssbauer 2015, 10).38 That is to say, the ‘harmonious world’ in its turn introduces a new spatio-​ temporal hierarchy in which China possesses superior (Confucian) values and the rest of the world lags behind (Nordin 2016, 40). When we judge this recent development against the late-​19th and early-​20th century phenomenon of ‘China as essence; the West as function’ (zhong ti xi yong中體西用), whereby the endeavour was to maintain the essence of Chinese culture, precisely by selectively adopting Western science and technology to preserve this essence against this same West,39 it can be argued that the reaction of the PRC to the ruling by The Hague precisely conforms to the selective adoption of Western elements (in this case, a refusal of a verdict based on Western jurisprudence) to uphold the Chinese essence (i.e. the integrity of Chinese historical territory). This refusal can, as discussed above, be interpreted as a sign of regained Chinese self-​esteem and the concomitant decrease of acceptance of Western normativity. The so-​called ‘rise of China’ therefore also brings about an important challenge to the way the Western world makes sense of China. Making sense of the concept ‘harmonious world’ meets with some conceptual and practical problems and implications. Above, the traditional Confucian society was characterized as hierarchical and as devoid of political participation of the lower classes. In practice, the traditional ‘he er bu tong’ boiled down to compliance with rules laid out by the Confucian political elite. Also, the concept ‘harmonious world’ that is advanced by the CCP government is an elite concept. That is to say, on a national level, ‘harmony’ appears to be conceived of as ‘conformity’ (i.e. ‘harmony’ is that behaviour that does not infringe on the policies laid out by the CCP elite; Nordin 2016, 43).40 Judged from the angle of national ‘harmony’ understood as ‘conformity,’ the question, then, is what such ‘harmony’ implies for the international level and how this encroaches on China’s professed ‘peaceful coexistence’. Hu Angang, economics professor at Tsinghua University, has characterized the ‘harmonious world’ as a world in which borders, and gaps between peoples and countries are abolished, and in which civilizations are merged into a world characterized by the ‘symbiosis’ of an all-​encompassing and integrated community of destiny and benefit (A. Hu 2013). This characterization of the ‘harmonious world’ is in line with Zheng Yongnian’s (2016) qualification of Chinese civilization as ‘open, inclusive and adaptive […] stronger, not by rejecting foreign influence, but by absorbing it’ (5). The ‘symbiosis’ of cultures thus appears to be a gradual Sinicisation. The question thus is when

Joseph Needham revisited  57 the Western world that –​according to the spatio-​temporal paradigm –​lags behind will conform to the new ‘Confucian’ norm (i.e. when ‘harmony’ [he] will become ‘sameness’ [tong]).41 Jean Baudrillard has, in this respect, interestingly stated the following: Every culture which universalizes itself loses its singularity and dies away. This is how it is with those we have destroyed by their enforced assimilation, but it is also how it is with ours in its pretention to universality […] as triumphant globalization sweeps away all differences and all values, ushering in a perfectly in-​different (un)culture […]. (Baudrillard 2002a, 156–​158) A probably even more fundamental, however intricately connected, conceptual problem is that it is not at all clear what ‘harmony’ is.42 In contemporary Chinese society, ‘harmony’ is applied to everything imaginable  –​from harmonious trains, over harmonious lands, to harmonious towers (Nordin 2016, 61), ultimately resulting in that ‘harmony’ refers to everything and, hence, to nothing at all –​a metastasis of ‘harmony’ that leads to self-​destruction.43 Apart from conceptual concerns, there are also practical concerns and implications. It is not the place here to discuss the veracity of the contemporary Confucian revival, but, even granted that it would be true that East Asian political cultures are still substantially Confucian, this does not necessarily imply that this is what they should be, what people want them to be, or that this would have to remain so. Moreover, the precise interpretation of Confucian values and concepts has changed all along China’s imperial history; a gradual ‘absorption’ of Western values into Chinese civilization would, as in the past, change Chinese Confucianism as much as it would change the West. To again quote Baudrillard (2002b) in his assessment of the fall of the Berlin wall:  ‘When the Evil Empire collapses, Good cannot remain exactly as it was before’ (41). And what would those nations that are on the other side of the spatio-​temporal axis have to learn from Confucianism? If it is contended that Western liberal democracy is unsuited for China, then why should Confucian harmony be suited for the West? For many Chinese, further, Confucianism is no longer a source of inspiration. Especially for young people, liberal values are a far greater inspiration (Elstein 2016, 443).44 The ‘harmonious world’ has been connected to the concept of the ‘China/​ Chinese Dream’ (Zhongguo meng 中國夢). Precisely what this ‘China/​Chinese Dream’ is, is as unclear as the concept ‘harmony’. What is clear, however, is that as much as the ‘harmonious society’ and the ‘harmonious world’ are the society and the world that is constructed in the minds of the Chinese elite, the ‘China/​Chinese Dream’ is, as defined by Astrid HM Nordin (2016), the ‘universal world dream that comes from Chinese thought but that is in everyone’s interest’ and that is different from others’ dreams ‘that may or may not be within the realm of the acceptable, but [that] are certainly particular dreams aligned with particular interests’ (125, emphasis in original).45 The claim that

58  Bart Dessein China knows what is best for the world thus very much resembles the saying by Mengzi, quoted earlier (Mengzi 7A5), that ‘The multitude do not realize what it is they practice, do not examine what they repeatedly do, and do not understand the path they follow all their lives; 孟子曰，行之而不著焉，習矣 而不察焉，終身由之而不知其道者，眾也’. On a theoretical level, the ‘China/​Chinese Dream’ has been brought into the framework of the age-​old datong and tianxia concepts,46 while on a practical level, the already mentioned Hu Angang has stated that, on its way to a universal symbiosis, China will lead the Global South in competition against the Global North. This ‘competition’ will only be successful, so he claims, when China has reached its top position and has broken the cultural hegemony of the North (A. Hu 2013). The spatio-​temporal hierarchy that is present in this opinion can also be seen in Colonel Liu Mingfu’s statement that ‘It has been China’s dream for a century to become the world’s leading nation’ (M. Liu 2010, 9).47 Alluding to the ‘century of humiliation,’ Liu Mingfu also proclaimed that, ‘if it (i.e. China) cannot become the top power, then it will inevitably become a straggler that is cast aside’ (M. Liu 2010, 9; cited in Nordin 2016, 210), and that the PRC should develop into a military power and become ‘the world’s number one power in a racial struggle between “yellows” and “whites” where China needs to destroy the old order and win over the United States’ (M. Liu 2010; cited in Nordin 2016).48 China’s refusal of the ruling by The Hague on the South China Sea can in this respect be seen as part of the country’s defence of its territorial sovereignty. The military build-​up in the region of the South China Sea can then be seen as another element that illustrates the above statements.

By way of conclusion: ‘What has been defrosted cannot be deep-​frozen again’ (Baudrillard 2002b, 39) China’s ‘century of humiliation’ arguably is the country’s ‘chosen trauma’ that has continued to inspire its policies aimed at regaining a central role in the world.49 Along with its gradual re-​emergence on the world scene, the country has been observed to take an increasingly proactive stance. The fundamental change this brings about in the world order as it was shaped after the Congress of Vienna, and in the way this order has been and is perceived by the West, has fundamentally led to the question of whether China will be a future ‘responsible stakeholder’ (i.e. comply with the norms set by the West) or will increasingly portray itself as a new normative power. The re-​ introduction of Confucian values in its national and international political rhetoric indicates that, in this process, China has turned its ‘chosen trauma’ into a ‘chosen glory’.50 The perceived intensified struggle between East and West has often been phrased in the simple questions of if and when a Sino–​American military conflict would likely erupt. International relations are, however, much more complicated than the mere dichotomy that might exist between two powers.

Joseph Needham revisited  59 Nations act within a complex network of relations that change over time and space, and each action changes the outlook of the network. As stated by Emilian Kavalski (2018): Depending on the interactive circumstances, an actor can be accommodative and generous (as China seems to be in its interactions with African countries, for instance), and assertive and vengeful (as China seems to act in the South China Sea) all at the same time. (74) The introduction of the concept ‘harmonious world’ that builds on the age-​old Confucian concept ‘he er bu tong’ has the advantage that it solicits a new approach in international relations. There are, however, major conceptual and practical flaws in this concept of ‘harmony’. Although China’s New Security Concept of 2002 stated that, ‘As proven by history, force cannot fundamentally resolve disputes and conflicts, and the security concept and regime based on the use of force and the threat to use force can hardly bring about lasting peace’ (Ministry of Foreign Affairs of the People’s Republic of China 2002), history teaches us that, in practical politics, ‘harmony’ has been understood as ‘conformity’. Keeping in mind that a defrosted Confucianism cannot be deep-​frozen again, it may be important to take account of the following observation made by Jacques Barsun (1965): ‘To see ourselves as others see us is a rare and valuable gift, without a doubt. But in international relations what is still rarer and far more useful is to see others as they see themselves’ (426). Or, to quote Mao Zedong when he met Nixon in February 1972:  ‘I haven’t been able to change it (China’s ancient civilization). I’ve only been able to change a few places in the vicinity of Beijing’ (Kissinger 2011, 410).

Notes 1 For an evaluation of the Fairbankian interpretation of China’s modernization process from first understanding only the superiority of Western weapons, then grasping that of Western institutions, and finally appreciating Western values, see Metzger (2012). 2 According to the SEPA figures, China’s military budget in 2017 was, with US$150.5 billion, the second largest in the world. This figure is far below the United States military budget that, in 2017, amounted to US$602.8 billion. Moreover, China’s 2017 military budget showed a smaller increase compared to the previous year. China’s military expenses were, however, refocused to modern weaponry and technology, and the development of a blue-​water navy. 3 For some primary reflections on this, see Dessein (2017). 4 For the nature and history of the compilation of the Lunyu, see Roetz (1998, 23–​25). 5 According to Roetz (1998, 26) this defines the Lunyu as the ‘basic text’ of the Confucian doctrine as canonized under Emperor Wu (r. 140–​86 BCE).

60  Bart Dessein 6 According to Sato (2003, 38), ‘even those who regard the Xunzi as a “well-​ integrated work despite its miscellaneous and inconsistent guise” still argue that the last six chapters were added later by Xunzi’s disciples’. According to Eno (1990, 136), the Xunzi should be considered the ‘collective work’ of the ‘Xunzi school’ rather than the work of one individual. 7 See http://​ctext.org/​xunzi/​ru-​xiao/​zh (accessed 16 September 2017) and Knoblock (1994, Vol. II, 75). 8 See http://​ctext.org/​xunzi/​fei-​xiang/​zh (accessed 16 September 2017) and Knoblock 1994, Vol. I, 206). 9 See http://​ctext.org/​xunzi/​rong-​ru/​zh (accessed 16 September 2017) and Knoblock 1994, Vol. I, 194). 10 Yu states that: ‘Just as the state’s recognition of Confucius and its continual process of canonizing his descendants were indicative of its own moral discernment and enlightenment, so the designated descendants’ fulfilment of their ritual duties on behalf of the state betokened their acknowledgement of the regime’s legitimacy’ (AC Yu 2005, 51). For the term ‘imagined community’, see Anderson (1991). 11 See http://​ctext.org/​mengzi/​teng-​wen-​gong-​i/​zhs (accessed 16 September 2017). El Amine (2015) therefore suggests seeing ‘the dispositions sought for the common people (to refrain from stealing, to work hard, and to be “correct”) as dispositions relating to orderliness, rather than virtuousness’. 12 See http://​ctext.org/​liji/​da-​xue/​zh (accessed 16 September 2017). 13 This development is also visible in the changes in Chinese map making of that period (see Göller and Mittag 2008). 14 This return to the terrestrial sphere was, as it were, already presaged when the Yongle Emperor had, upon usurping the throne, transferred the capital from Nanjing to Beijing, herewith recognizing that China first and foremost had the task to deal with the terrestrial threat of the Mongols to the North of the empire (see Haar 2009, 290). 15 Or, as phrased by Zheng: ‘[A]‌s far as China is concerned, international order is no more than an outward extension of internal order’ (2016, 5). 16 France had to give up all its recent territorial conquests; Prussia was enlarged with some smaller German states, Swedish Pomerania, and the Kingdom of Saxony; Austria gained Venice and part of Northern Italy; and Russia gained parts of Poland. 17 For a critical assessment of the Congress of Vienna and its impact, see Kavalski (2018). 18 For a recent study that contradicts Kenneth Pomerantz’s claim that European dominance only started in the late-​18th century, see Broadberry, Guan, and Li (2018). They claim that, actually, Italy already had started to catch up with China before 1300, and that other European countries followed soon after. 19 According to Dong, it was especially after the 1870s that notions of ‘humiliation’ entered the writings of Qing scholars and diplomatic officials, and it was only in 1924 that Sun Yatsen (1866–​1925) started to speak of the ‘unequal treaties’ (Wang Dong 2003, 402, 407). 20 See Liang ([1902] 1936), available at: http://​ctext.org/​wiki.pl?if=gb&res=900281& searchu=%E4%BB%96%E7%A8%AE%E4%BA%BA (accessed 16 September 2017).

Joseph Needham revisited  61 21 See Kaufman (2010), who claims that ‘most of these writers did not address whether equality among nations could truly coexist with international competition; nor did they say whether China sought to prevail over other nations or simply be “equal” with them’ (10). 22 Available at www.marxists.org/​chinese/​maozedong/​marxist.org-​chinese-​mao-​ 19490630.htm (accessed 16 September 2017). Translation available in Mao (1969, Vol. 4, 411). Note that Mao Zedong repeatedly refers to the ‘great unity’ (datong) concept in this text. As stated by Dong, ‘In the CCP’s discourse on the Unequal Treaties, China’s experience was often portrayed as a part of a global experience shared by other nations in a similar situation’ (Wang Dong 2003, 417). 23 Liu states that the political program proposed by Sun Zhongshan in July 1905, at a conference held in Tokyo, was to ‘revive’ China (K. Liu 1962, 46). 24 The ‘Nine-​Dash Line’ is an adjustment of an earlier ‘Eleven-​Dash Line’, which was claimed by the Republic of China in 1946, following the defeat of Japan at the end of World War II. The Republic of China then reclaimed the territory of the Paracel, Pratas, and Spratly Islands after accepting the Japanese surrender of the islands based on the Cairo Declaration (1943) and the Potsdam Proclamation (1945). The problem, and this relates to the ruling by The Hague, is that neither the Cairo Declaration nor the Potsdam Proclamation explicitly state Chinese sovereignty over the islands. The Cairo Declaration merely states that ‘Japan shall be stripped of all the islands in the Pacific which she has seized or occupied since the beginning of the First World War in 1914, and that all the territories Japan has stolen from the Chinese, such as Manchuria, Formosa, and the Pescadores, shall be restored to the Republic of China’. The Declaration thus does not mention any island or island group by name. The Potsdam Proclamation states that Japanese sovereignty shall be limited to the islands of Honshū, Hokkaido, Kyūshū, Shikoku, and ‘such minor islands as we determine’. The ‘Nine-​Dash Line’ is an adjustment of the former ‘Eleven-​Dash Line’ created by China in 1954 to pacify the Vietnamese on some islands. China’s (both the PRC and the ROC) ‘historical claim’ on the islands in the South China Sea is thus much inspired by its age-​old ‘culturalist’ concept, as is entailed in the passage of the Liji quoted above. 25 See note 21. 26 On the importance of the Bogor (Indonesia) Conference of 1954 for China’s recognition of the importance of Africa, and as preparatory session of the Bandung Conference, see Shinde (1978, 51) and Shinn and Eisenman (2012, 33). It is obvious that these ‘Five Principles of Peaceful Coexistence’ also were at stake in the PRC’s rejection of the ruling by The Hague. 27 These five principles were originally proposed in 1953 as the preamble for the Indian–​Chinese Treaty on Trading in Tibet –​known as the ‘Panchsheel (lit.: five [pañca] virtues [śīla]) Agreement’  –​and agreed upon by both parties on 29 April 1954. 28 This was the result of China’s attempts to question the Soviet policies in Eastern Europe and in the international communist movement, and its attempts to isolate the Soviet Union wherever possible. Especially after Nixon’s visit to China in 1972, Chinese foreign policy has been characterized by a fierce anti-​Soviet stance (see Näth 1975). 29 In order of visit, the countries visited by Zhou Enlai were:  the United Arab Republic (14 to 21 December 1963), Algeria (21 to 27 December 1963), Morocco

62  Bart Dessein (27 to 30 December 1963), Tunisia (9 to 10 January 1964), Ghana (11 to 16 January 1964), Mali (16 to 21 January 1964), Guinea (21 to 26 January 1964), Sudan (27 to 30 January 1964), Ethiopia (30 January to 1 February 1964), and Somalia (1 to 4 February 1964). In between visiting Morocco and Tunisia, Zhou Enlai visited Albania. Shinn and Eisenman (2012, 36)  remark that, after Algeria’s Front de Libération Nationale agreed to a communiqué in 1960 that fully supported the PRC’s control over Taiwan, ‘Beijing subsequently insisted that the “One China policy” be part of any agreement on diplomatic recognition’. The African countries were  –​as was hoped for  –​a major factor in recognizing the PRC as representative of ‘China’ in the United Nations on 25 October 1971. The PRC was voted into the UN with 34 per cent (26 countries) of its votes from African countries, thus passing the required two-​thirds majority. Ten of the fifteen African countries that supported Taipei changed to the PRC in the next few years (see Wei 1982, 380–​396). 30 Throughout the Cultural Revolution, China continued to support African liberation movements and focussed its African relations on only a few countries, such as Tanzania, Zambia, Mali, Guinea, Congo-​Brazaville, and Algeria (see Shinn and Eisenman 2012, 39). 31 For an analysis of the effects that Portugal’s retreat from Angola had on China’s image, see S.  Chan (2013, 12). For the impact that China’s decision to invade Vietnam in 1979 and its inability to interfere when the Soviet Union invaded Afghanistan in the same year have had on Mao’s Three World Theory, see S. Chan (2013, 14). On Maoist ideology in China’s foreign policy, see Harris and Worden (1986, 2), GT Yu (1988, 850), and Li (2007, 70). 32 Quoted in Kaufman (2010). The original document was published by the Information Office of the State Council of the People’s Republic of China (2009). 33 See, for example, Lu (2010, 19). Qing Liu (2014, 133) in this respect states that ‘he er bu tong’ ‘bespeaks a “dialogical universalism” of “harmony without homogeneity” ’. 34 The creation of an ‘Asian Infrastructure Investment Bank’ was first proposed in 2009 at the Bo’ao Forum; ‘One Belt One Road’ was inspired by the global financial crisis. It was officially launched in 2013 by State President Xi Jinping on a visit to Kazakhstan. 35 Quoted in Kaufman (2010, 24). For a theoretical approach of the developmental path from isolationist authoritarianism to engagement in the global world, see Peerenboom (2007, 31–​32). 36 Zheng in this respect states that ‘Western theories and systems can be used as tools for economic success and social development. But Asian values should always be the ballast for social and economic transformation, because blindly or completely embracing Westernization will lead to mistakes’ (2016, 5). 37 According to Zheng and Tok (2007, 2), China needs a more proactive role when it wants to shape its own destiny, both internally and externally. While ‘scientific development’ (kexue fazhanguan) and ‘harmonious society’ served to satisfy Hu Jintao’s domestic audience, ‘harmonious world’ is applicable to both China’s domestic and foreign policies. 38 This was already presaged by Gu Mu, one of the chief ideologues of Chinese modernization, in his speech on the occasion of the 2,540th anniversary of Confucius’s birth in 1989. He emphasized the importance of a correct relation to traditional national culture, and he stressed that in the synthesis of the Chinese tradition and Western ideas, the Chinese tradition should predominate over the Western one

Joseph Needham revisited  63 (also see Wang 2001, 157). Rošker (2013, 5) refers to He Bingsong who, in the late 1930s and1940s, claimed that it was Europe that had to learn from China, referring to the 18th-​century European intellectuals, such as Voltaire and Leibniz, who were admirers of Chinese culture (also see note 34). 39 The concept ‘China as essence, the West as function’ (zhongxue wei ti, xixue wei yong 中學為體,西學為用), in short:  中體西用, was first advocated by Zhang Zhidong 張之洞 (1837–​1909) in his Quan xue pian 勸學篇 (Exhortation to Study), published in 1898 (see Wang 2001, 41–​42). 40 Also see Rošker (2013, 7; 2016, 203–​204), who refers to Xunzi, Wang zhi 26 in this respect: ‘With the establishment of forms of punishment, the governing (of society) will become balanced and people will live in harmony’ (刑政平，百姓和; http://​ ctext.org/​xunzi/​wang-​zhi/​zh; accessed 16 September 2017). To this, she remarks that the disciplinary connotation that prevailed in the understanding and propagation of a ‘harmonious society’ in China under Hu Jintao thus derives directly from Xunzi’s interpretations of this notion. Discussing the relationship between ritual propriety and harmony, J. Yu (2016, 418) argues that Confucian ritual propriety has the social rites of the Zhou period as particular reference. Li (2016, 429) claims that the rules of Confucian ritual propriety have been established prior to people’s action and are supposed to be followed. 41 Nordin defines ‘harmonizing’ as ‘excluding, rejecting, or transforming the other, the non-​Chinese’, and refers to Hu Angang who, although referring to harmony with diversity (he er bu tong), strongly emphasizes harmony as unity (2016, 42, 120). 42 Yu commenting on Analects 13.23 states:  ‘ “Cultivated persons seek harmony (he) but not sameness (tong)”. This saying clearly distinguishes harmony from sameness, and hence from agreement or conformity, although it does not elaborate what harmony means and how it differs from sameness’ (J. Yu 2016, 413). 43 This resembles Jacques Derrida’s critique on the well-​known concept of Ferdinand de Saussure that every signifiant refers to one particular signifié. For Jacques Derrida, every signifiant refers to another signifiant, and so forth, whereby, in the end, there appears to be no signifié at all. 44 Pan and Xu have shown that Chinese individuals from regions with higher levels of economic development, trade openness, and urbanization, on average, lean toward the liberal, pre-​market/​non-​traditional, and –​interestingly for the issue of the South China Sea –​non-​nationalist end of the spectrum of ideological values compared with respondents from poorer regions (Inglehart 2016; Pan and Xu 2017). Rawls points out that people in modern societies have very different value systems and that there is no non-​coercive way of attaining agreement on basic values. It is not clear that even coercion would necessarily work (Rawls 2005). 45 Nordin (2016) states that ‘There is no room for groups within China to dream differently, or share dreams of other civilizations if they are different from Xi’s Chinese dream’. 46 In theory, the ‘all-​under-​heaven’ system ‘proposes politics of harmony for a world in which relations prevail far and near among nations, as opposed to hostile differentiation between self and others’ (see Zhao 2009, 14, 2015, 62). 47 It has been suggested that many of the recommendations that Liu Mingfu gives in his 2010 book, Zhongguo Meng:  Hou Meiguo Shidai de Daguo Siwei Zhanlüe Dingwei (中国梦:后美国时代的大国思维战略定位 The Chinese Dream (Zhongguomeng):  Great Power Thinking and Strategic Posture in the Post-​ American Era), have been taken up by the Xi leadership (see Callahan 2015).

64  Bart Dessein 48 Referring to the ‘Congress of Vienna,’ Kissinger (1957, 143–​147) stated that international order is rarely born out of the consciousness of harmony. For even when there is an agreement about legitimacy, the conceptions of the requirements of security will differ with the geographical position and the history of the contending powers. Shih and Huang (2016) recognize the impossibility of ‘universal harmony’ when they state that ‘the conceptualization of China’s self-​ascribed role that has emerged in the twenty-​first century is that of a responsible major power building a harmonious world. However, achieving harmony is not tantamount to achieving peace. In a harmonious world, the relationships between China and other countries are constantly being negotiated to facilitate the achievement of harmony in any bilateral relationship that will inevitably result in incongruence among all bilateral relationships’ (60). Also, Yu Jiyuan recognizes this when stating that ‘What is one’s due is always a contextual matter and is determined within the harmonizing process of the world. […] We cannot determine what the due of each is without making reference to the context of the harmonious world. […] If everything in the end is left to context, the hermeneutic circle, or individual discretion, the result would be too subjective, ambiguous, and uncertain. In those cases, it would be difficult to have a harmony in which heterogeneous elements are brought into a mutually balancing relationship and in which each ingredient realizes its full potential’ (J. Yu 2016, 417). 49 For the notions of ‘chosen trauma’ and ‘chosen glory’, see Volkan (1997, 4–​10). 50 Kaufman (2010) notes that the ‘[C]‌entury of Humiliation is part of a narrative of loss and redemption that legitimizes the PRC’s political system’ (3).

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3  Sovereignty and identity Taiwan’s claims in the South China Sea Yih-​Jye Hwang and Edmund Frettingham

Introduction The Asia-​Pacific region is the region with the most frequent international disputes, and within this area, the South China Sea (SCS) stands out as a particular conflict hotspot and theatre of power competition (Song 2019, 2012). Geographically, the SCS is a semi-​closed sea area that includes hundreds of islands and reefs of various sizes. The four archipelagos in the SCS are mostly made up of coral reefs, many of which remain underwater even at low tide. Navigation in the adjacent waters is difficult and there are no permanent residents. Since 2012, China has controlled the only reef that breaks the surface in the Scarborough Shoal area (or ‘Zhongsha Islands’), but Taiwan and the Philippines have also claimed sovereignty over the area. The Pratas Islands (or Dongsha Islands) are currently occupied by Taiwan. The Paracel Islands (or Xisha Islands) are controlled by China, with some sea areas disputed between China and Vietnam. The disputes over the territorial and economic waters of many islands and reefs in the Spratly Islands (or Nansha Islands) involve sovereignty claims by China, the Philippines, Vietnam, Taiwan, Brunei, and Malaysia. The language in which Taiwanese officials and scholars make territorial claims about the SCS is historical and legal, with references to ‘historical evidence’, ‘international treaties’, ‘precedent’, and ‘declarations of sovereignty’ (MOFA 2016a; Gao and Jia 2013). The historical claims rest on ancient Chinese books that recorded the geographical characteristics of the SCS islands, and the longstanding presence of Chinese fishermen in the area. As far as ‘precedent’ is concerned, Chinese people had settled in the islands of the SCS by the mid-​19th century, and the Republic of China (ROC, or Taiwan) declared these islands as territories based on the fact of continuous possession and residence. The relevant international treaties are mainly the Treaty of San Francisco of 1951 and the Sino–​Japanese Peace Treaty of 1952. These two treaties stipulate that Japan had waived all rights over Taiwan, the Penghu Islands, and the Spratly Islands. Japan’s declaration has been interpreted as returning jurisdiction over those islands to the ROC, not only because the Sino–​Japanese Peace Treaty of 1952 was a bilateral treaty between Japan

70  Yih-Jye Hwang and Edmund Frettingham and the ROC, but also because the then Chinese government assigned senior officials to the Spratly Islands to receive them. A reception ceremony was held on the Taiping Island, the biggest island in the SCS, in December 1946, and troops were stationed there. The Taiwanese government’s ‘sovereignty declarations’ have mainly come in the form of unilateral protests against territorial claims made by neighbouring countries that allegedly violated the territorial integrity of Taiwan through trespassing on its legitimate claims in the SCS (see Chen 2016, 1997).1 Taiwan’s claims in the SCS were, however, rejected by the Permanent Court of Arbitration (PCA) in Hague. The arbitration case was filed by the Philippines in 2013, and after three years of trial, the court announced the judgment of the five-​member arbitral tribunal in 2016 (PCA 2016). The arbitration results can be summarised as denying the legal basis for China’s historical rights in the SCS (the ‘U-​shaped line’), and ruling that all the maritime features in the Spratly Islands, including Taiping Island under the jurisdiction of Taiwan, are ‘reefs’. Taiwan’s response to the ruling was relatively moderate and ambiguous, certainly in comparison to Beijing’s tough statement reiterating China’s territorial sovereignty in the SCS. The statement from Taiwan’s Presidential Office emphasised only that ‘the sovereignty of the islands in the SCS and its related waters belongs to the ROC’, but didn’t mention the legal basis of Taiwan’s territorial claims, which inevitably conflicts with the ‘U-​shaped line’ claim that forms the basis for the People’s Republic of China (PRC) legal case to sovereignty over the SCS (see Presidential Office 2016). In addition, Taiwan had an extremely delicate role to play in the SCS arbitration. On the one hand, Taiwan was involved in the defendant role. It wasn’t named as a direct defendant in itself (the PRC was the defendant), but because the arbitral tribunal followed the ‘One China Principle’ and named Taiwan as ‘Taiwan Authority of China’, Taiwan was thus included as a defendant. On the other hand, Taiwan was not invited to participate in the arbitration case, and ironically the statements made by the Taiwanese officials and scholars were widely referred to by Philippine lawyers in court (see Tsai and Chen 2017; Liu and Kan 2017; Hsiao 2016). The main reason is that the U-​shaped line of the PRC has taken up the claims set out in the ‘Map of the South China Sea Islands’ (MSCSI) published by the Chinese nationalist (or Kuomintang, KMT) government of the ROC in 1947.2 As a result, Taiwan was not able to participate in litigation and expression, but its claims are at the core of the dispute. The purpose of this chapter is to understand the origin of Taiwan’s ambiguous role in the SCS dispute. To this end, this article explores: (1) the evolution of Taiwan’s SCS narratives, (2) the meaning of the SCS issue for Taiwan, and (3) what kind of challenges the SCS issue poses to Taiwan. Taiwan’s approach to the SCS is explained by much of the scholarly literature in International Relations (IR) in terms of strategic and economic interests. Taiwan’s strategic concerns in the dispute include regional security, Sino–​US relations, diplomatic strategies, and maritime security. There has

Taiwan’s claims in the South China Sea  71 been particular interest in recent years in the implications for Taiwan of the power competition between China and the United States, in the wake of the United States’ ‘pivot to Asia’ and the increasing tension during the Trump administration (Hu 2018; Li 2017; Haddick 2014; Buszynski 2012; Kurlantzick 2011). The economic aspect of the dispute is mostly fuelled by the prospect of oil wealth, coupled with the proximity of the islands to international shipping lanes and fishing grounds. The SCS is not only strategically significant for Taiwan, but valuable insofar as the ownership of this rocky archipelago gives access to rich resources in their adjacent waters. These studies are therefore mainly concerned with the ways in which Taiwan situates itself to obtain national security guarantees and economic benefits in the region (see Fravel 2011; Nordhaug 2001; Shei 2013). We argue in this chapter that Taiwan’s claims on the SCS are not reducible to strategic and economic imperatives. More attention should be paid to what might be described as the ‘ontological security’ of Taiwan –​the need to maintain a stable and continuous sense of self against threats to its identity. As will be shown in this chapter, Taiwan’s narratives of its sovereign rights over the SCS are mainly responses to wider crises of ontological security faced by successive governments in Taiwan. The claims on the SCS under Chiang Kai-​shek’s regime were initially driven by a need to gain the legitimacy associated with the ROC identity in its fight against communist China. Since the 1990s, identity narratives in Taiwan have diverged. On the one hand, those who wish to maintain the ROC identity argue that all waters within the U-​shaped line published in 1947 are under Taiwan’s sovereignty. On the other hand, those who wish to jettison the ROC identity believe that claims to Taiwanese sovereignty in the SCS reinforce historical ties with China, and thus paradoxically threaten the ‘sovereignty’ of Taiwan. Analysis of the controversies surrounding the SCS from the Taiwanese perspective must reckon with not only the material interests at stake, but also the broader concerns about ontological security at play in regional and domestic politics, and the politics of identity through which these concerns are expressed domestically and internationally. The next section briefly explains the concept of ontological security.

Ontological security and the South China Sea Security studies was, by the late 20th century, dominated by realist approaches that assumed states are concerned primarily with physical survival, and seek material power to ensure it. This reduction of security to material means in the service of material goals persisted, even once the security agenda had been expanded to include non-​ traditional issues, such as environmental, economic, and health security (Ullman 1983; UNDP 1994). This focus on material interests has often obscured the fact that states also value and seek to protect a range of non-​material goods, including status and reputation, as earlier realists often recognised (e.g. Wolfers 1952, 489). The insight that states

72  Yih-Jye Hwang and Edmund Frettingham are often concerned with aspects of their identity and self-​understanding is a theme that has been developed more fully in the recent literature on ontological security. Ontological security refers not to physical security, but to the stability and continuity of subjective self-​identity (Mitzen 2006a, 342). The concept has roots in Laing’s psychiatric and Gidden’s sociological treatments of individual identity that have been influential across the social sciences (Laing 1990; Giddens 1991). In these foundational accounts, the concept refers to a person’s fundamental psychological need to feel secure in who they are, and experience continuity in their sense of self through time. Radical existential uncertainty about who they are and how they relate to the world is experienced as threatening because it can undermine important preconditions of subjectivity. Ontological security is both a condition of individual agency and a motive for action. More recent scholarship in IR has extended the concept beyond this individual level to understand how a concern with stable identity can also shape state behaviour (Mitzen 2006a; Steele 2008; Zarakol 2010). States, like individuals, are concerned with ‘security of being’ (Steele 2008, 52). Statecraft is driven by identity as well as material interest. The behaviour of states, like that of individuals, is driven in part by a sense of who they are, in that they tend to behave in ways appropriate to the kind of actor they believe themselves to be. But they also –​again, like individuals –​try to maintain a stable sense of self-​identity, by acting in ways that reaffirm and re-​inscribe their self-​understanding as a particular type of actor. State identity is dependent on both external and internal relationships that are often interrelated and mutually referential. Externally, state identities are dependent on how they are perceived and treated by other states and international actors (Mitzen 2006a, 2006b; Zarakol 2010). It is difficult for a state to maintain a stable sense of its own identity –​as a sovereign entity, an equal member of international society, a regional leader –​if these identity claims are persistently denied by other states in their rhetoric or conduct. Recognition by other states is a necessary but not sufficient factor in sustaining and securing self-​identity. How a state engages internationally is also affected by domestic processes of identity formation. Argument and negotiation among domestic political and civil society actors play a powerful role in forming a state’s sense of self (Steele 2005, 2008). This negotiation of identity can be seen in a range of social and discursive processes, from speeches by political leaders to the publication of white papers, debate in the public sphere, the staging of political spectacles, and the implementation of new government policies. Historical narratives are central to the maintenance of state identity (Subotić 2016). It is through the stories that they tell about themselves that states know who they are and how they should act. As Alasdair MacIntyre pointed out, it is through these narratives that actions become meaningful: to be a person is to be the subject of one’s own history, living out a story that has its own particular meaning. It is only in the context of such stories that it becomes meaningful to do one thing rather than another when faced with a

Taiwan’s claims in the South China Sea  73 choice. Historical narratives provide meaning, but they also provide unity of identity through time; they make it possible to explain how people who act in quite different ways in different contexts can still be one and the same person (MacIntyre 2007, 217–​218). State identity is similarly dependent on ‘autobiographical’ narratives that provide a continuity of collective self and make it meaningful to take certain actions (Berenskoetter 2012). A state’s self-​identity can be threatened by international misrecognition or domestic existential crises in ways that affect its foreign policy. If a state’s identity and its historical self-​understanding becomes internally contested, the conflicted understandings of the ‘self’ resulting from domestic divisions over state identity will generate uncertainty about appropriate state action. This ontological insecurity can translate into unpredictable and inconsistent international behaviour. As Gustafsson puts it, ‘agents need stable and secure self-​identities in order to be able to act in a self-​confident way’ (Gustafsson 2015, 121). Security of identity is as much a condition of effective agency as material security, because it provides states with confidence about their interests and behavioural patterns when interacting with other actors in international relations. Ontological insecurity can affect a state’s foreign policy priorities as well as the consistency and confidence of its actions. In contrast to traditional security approaches that treat identity concerns as always, in the end, secondary to material interests such as territorial integrity, if not merely instrumental to them, ontological security theorists have argued that states will, at times, seek security of identity even at the expense of more tangible material interests. This can involve becoming involved in a costly and seemingly irrational conflict that endangers the physical security of the state if it fulfils the state’s need to stabilise its self-​understanding as a certain kind of actor. States are willing to take these kinds of risks because ontological insecurity threatens a crucial dimension of state agency with a particular force. It is experienced as a threat to a state’s unified sense of self and the meaningfulness of its history. Misrecognition or demeaning forms of identification can be experienced as shame as well as uncertainty and anxiety (Steele 2005, 2008; Zarakol 2010). And given the close relationship between selfhood and historical narratives, challenges to a state’s identity also challenge the stories through which this identity is constructed, creating a crisis of meaning at the heart of the state. In such circumstances, a state is likely to try to resolve this uncertainty, even to the point of endangering its physical security or sacrificing material interests that would be important in other circumstances (Mitzen 2006a). The literature on ontological security has thus suggested that states do not function in an anarchical world system in the ways that mainstream realist and liberal IR often supposes, fixated on material interests above all. Rather, states –​ like individuals –​are also concerned with ‘security of being’ (Steele 2008, 52). We want to suggest that attention to issues of ontological security can provide important insights into the ambiguities in Taiwan’s approach to the SCS disputes. The following sections will address how successive governments in

74  Yih-Jye Hwang and Edmund Frettingham Taipei have enacted policies in the region that stabilise and reinforce certain conceptions of Taiwanese identity, and the historical narratives in which they are embedded, against the background of deep domestic and international uncertainty and contestation over Taiwan’s status.

The KMT’s pursuit of the legitimacy of the Republic of China and its claims on the South China Sea under Chiang Kai-​shek and Chiang Ching-​kuo (1949–​1988) In 1933, France announced the occupation of nine small islands in the SCS. The ROC’s ambassador to France, Gu Weijun, protested this act, and the ROC government began to actively investigate the territory of the SCS and assemble material in support of its own claims. ‘The Land and Water Map Survey Committee’ of the ROC government in Nanjing then produced a ‘Map of the Islands in the South China Sea’ in 1935, which also contained Chinese and English names of the islands in the area. This map was later thought to show the Chinese government’s claim to sovereignty over the SCS territory at the time. In February 1939, the Japanese army invaded the Pratas Islands, Paracel Islands, and Spratly Islands and placed them under the jurisdiction of the Governor General of Taiwan. Japan then withdrew from the SCS islands after announcing its unconditional surrender at the end of World War II. The ROC government sent naval and interior officials to the Spratly Islands, landing on Taiping Island before holding a reception ceremony and setting up a monument (see Chen 2016, 1997; Zhang 2014). In 1947, the ROC government renamed the islands and reefs of the SCS islands and announced the MSCSI, which contained an 11-​dash U-​shaped line. In 1949, the KMT retreated to Taiwan. Lacking resources to control the SCS, Chiang Kai-​shek decided in 1950 to focus on defending Taiwan Island itself. This meant retreating from the coastal islands that were still controlled by the KMT armies, including the Zhoushan Islands and Hainan Island, as well as all islands in the SCS. The Tomas Cloma Incident of 1956, in which the Spratly Islands were briefly occupied by an enterprising Filipino businessman, prompted the KMT government to adjust its policies towards the SCS. The Philippine government took no action against Cloma and refused Taiwan’s request to recognise the islands as ROC territory, prompting Taiwan to station troops on Taiping Island and begin naval patrols in the area to consolidate its control of the archipelago (Chu 2016). Since then, Taiwan has regularly protested violations of its claimed sovereignty over the SCS, objecting publicly in 1956 to a Vietnamese incursion on the Spratly Islands. It also began to take more practical action:  the Taiwanese foreign minister visited in 1958, and the Taiwanese Navy also brought groups of young people participating in a summer combat training camp to the islands to declare ROC sovereignty over the SCS (Xiao 2010). During this period, though, policy and discussion of SCS issues in Taiwan were often limited by the concerns about Taiwan’s pursuit of the legitimacy

Taiwan’s claims in the South China Sea  75 of its identity as the ROC. In 1971, the UN General Assembly’s recognition of the PRC badly affected Taiwan’s international status, and the primary policy concern became economic development and avoiding annexation by mainland China. The SCS issue was a lower priority, and Chiang Ching-​ kuo’s government (1978–​1988) made no active moves conducted in the SCS, but it officially maintained Taiwan’s claims. Hence, from Chiang Kai-​shek’s retreat to Taiwan in 1949 to the death of Chiang Ching-​kuo in 1988, Taiwan’s claims of sovereignty over the SCS were not diluted, even if they were greatly affected by the Cold War structure and the cross-​strait confrontation. In other words, Taiwan’s SCS policies were subordinate to the security of its statehood and ROC identity during that period.

Lee Tung-​hui’s pursuit of Taiwan’s subjectivity and its policies pertaining to the South China Sea (1988–​2000) Chiang Ching-​kuo died in January 1988, and Lee Teng-​hui succeeded him as President, remaining in power until 2010. Lee’s administration was a key period in the development of Taiwan’s SCS policy. In its the early days, Lee basically continued with the narrative developed during the two Chiang’s presidencies, insisting on Taiwan’s sovereignty over the SCS. It was during this period that Taiwan’s ‘South China Sea Policy Guideline’ (1993) and the decision-​making and enforcement agencies associated with it were established. Later in his presidency, however, Lee began to promote a new understanding of the ‘subjectivity’ of Taiwan, which inevitably reshaped how the issue of sovereign rights in the SCS was understood (Lin 1997). On March 14, 1988, an armed conflict broke out between China and Vietnam near Johnson South Reef (or Chigua Reef in Chinese) –​one of the Spratly Islands in the SCS (Garver 1992). Later, the PRC occupied the reef and extended its influence to the Spratly Islands. In February 1992, Beijing passed the Territorial Sea and Contiguous Area Law, expressly stipulating the Spratly Islands, the Paracel Islands, the Pratas Islands, and the Macclesfield Bank as its territory (FAOLEX Database n.d.). In May of the same year, the PRC and American Creston Energy Company signed an oil exploration contract to explore oil and gas in the waters of the Vanguard Bank near the Spratly Islands, and claimed a right to use its navy to protect this oil exploration activity. ASEAN members responded to the PRC by adopting ‘The ASEAN Declaration on the South China Sea’ (ASEAN 1992). With rising tension in the SCS, Taiwan also became involved. Firstly, the ROC Minister of the Interior led a delegation in June 1989 to visit Pratas Island and erect a national monument. In January 1990, another national monument was erected on Taiping Island. The representatives of the three ministries, including the Interior, National Defense, and Foreign Affairs ministries, were convened to discuss and make recommendations to the Executive Yuan. Based on these suggestions, in 1992, the Executive Yuan established a ‘South China Sea Group’ to study matters related to the SCS,

76  Yih-Jye Hwang and Edmund Frettingham with the Minister of the Interior as the convener. In October of the same year, the Ministry of National Defense announced the restrictions on the air and sea areas of both Taiping Island and the Pratas Islands (i.e. 6,000 metres of the sea area around these islands and 6,000 metres above the sea areas). Ships or other means of transport and persons of non-​ROC nationality cannot enter the restricted areas. Taiwan also published ‘The South China Sea Policy Guideline’ in 1993 and proclaimed the region to be Taiwan’s historic waters before the entry into force of the United Nations Convention on the Law of the Sea (UNCLOS) in 1994, hoping that its claims would be protected by the provisions of the Convention after its establishment. In the Preface of the Guideline, it says: The Nansha Islands (or Spratly Islands), Xisha Islands (or Paracel Islands), Zhongsha Islands (or the Macclesfield Bank) and Dongsha Islands (or the Pratas Islands), regardless of history, geography, international law and facts, are part of our country’s inherent territory and their sovereignty belongs to our country. . . . The sea area within the boundary of the historic waters of the South China Sea is the sea area under our jurisdiction, and we have all rights and interests. (MOI 1993) In other words, the Guideline clearly states that the waters within the ‘U-​ shaped lines’ are ‘historic waters’ under the jurisdiction of the ROC. In addition to asserting sovereignty, the guidelines stated Taiwan’s commitment to settling disputes peacefully in accordance with international law and the UN Charter. The document accordingly enumerates five objectives, including: (1) firmly safeguarding Taiwan’s sovereignty of the SCS, (2) strengthening management of the SCS development, (3) actively promoting cooperation in the SCS, (4) peacefully handling disputes in the SCS, and (5) maintaining the SCS ecological environment (MOI 1993). During that period, the guideline was Taiwan’s highest guiding principle in handling the SCS issue. These words and actions show that Lee’s government at that time still maintained the position of the two Chiang’s policies on the issue of the SCS. From the mid-​to late-​1990s, however, Taiwan’s SCS narratives and policies were gradually influenced by Lee’s pursuit of a stronger Taiwanese subjectivity in which Taiwan was re-​narrated through Taiwanisation discourses as a national subject in its own right. At the same time, to expand its diplomatic external space, Lee’s government also began to implement a so-​called ‘Southbound Policy’ in an attempt to achieve a breakthrough in Taiwan’s foreign relations with Southeast Asian countries through the development of economic and trade exchanges. These efforts had an effect on Taiwan’s rights protection activities in the SCS, which were gradually diminishing. When disputes arose in the SCS, Taiwan no longer emphasised the U-​shaped line as the outer boundary of ‘historic waters’, as mandated explicitly in the South China Sea Policy Guideline. The most important developments in this period

Taiwan’s claims in the South China Sea  77 were the promulgation of ‘Law on the Territorial Sea and the Contiguous Zone of the Republic of China’ (MOI 1998a) and ‘Law on the Exclusive Economic Zone and the Continental Shelf of the Republic of China’ (MOI 1998b). South Korea, Japan, and the PRC had already ratified the UNCLOS in 1982, and when the three countries announced the establishment of 200-​ nautical-​mile Exclusive Economic Zones (EEZ) in 1996, the Legislative Yuan accelerated the passage of these two laws. They came into effect in January 1998. The Legislative Yuan’s deliberations on the two drafts of legislation on the basic sea areas led to a series of controversies over Taiwan’s relations with the PRC. These concerned the question of unification or independence, and the sovereignty of the East China Sea and South China Sea. What was the scope of Taiwan’s territory? Should it be explicitly declared that the territory of the ROC includes Taiwan, Penghu, Kinmen, Matsu, and some dependent islands, including those in the SCS? Moreover, the claim about the ROC’s ‘historic waters’ in the SCS was also fiercely debated. Should this claim be given a legal form by including it in the laws regulating the territorial sea and adjacent zones? Should it be retained in other policy statements? Should the claim to the historic waters of the SCS be proposed in other political documents? Or should it be completely deleted (Song 2000, 95–​ 96)? Initially, the term ‘historic waters’ appeared in the draft of the bill. It stated that ‘“historic waters” refers to the inherent waters that were earliest discovered, named, developed and administered, and subject to the jurisdiction and exercise of sovereignty of the ROC, such as the South China Sea’. However, the final version adopted by the Legislative Yuan deleted the term ‘historic waters’ and did not include provisions defining territorial sovereignty. Instead, the bill used the term ‘waters of the Republic of China’, a more vague and general wording without specifying the nature of the waters in question (Wang and Zhao 2016). Moreover, in November 1999, then Defense Minister Tang Fei declared in the Legislative Yuan that responsibility for defending the Pratas and Spratly Islands would be transferred to the newly established Coast Guard Administration (CGA), a civilian police agency (Sun 2017, 103–​104). On 1 February 2000, the CGA was formally established. According to Article 4 of the Coast Guard Law of 2000, the CGA’s tasks in the SCS include: coastal zone management and safety maintenance matters; seizure and smuggling of sea areas and coasts; coordination, investigation, and handling of foreign affairs related to sea areas and coastal patrols; collection of smuggling information; research and development of marine affairs; implementation of control and maintenance of marine traffic orders; implementation of marine rescue, marine disaster rescue, and maritime disputes; implementation of fishery patrols and maintenance of fishery resources; and marine environmental protection and conservation matters (Wikisource 2000; also cited in Song 2000, 96–​97). This adjustment meant that Taiwan’s policies on the SCS were downgraded from ‘Army Defense’ level to ‘Police Coast Defense’ level.

78  Yih-Jye Hwang and Edmund Frettingham The decision stirred another wave of controversies and criticisms in Taiwan at that time, especially among those in the pro-​unification camp.

Chen Shui-​bian’s pursuit of Taiwan as an ‘Ocean Nation’ and its claims on the South China Sea (2000–​2008) During Chen Shui-​bian’s administration (2000–​2008), Taiwan’s SCS policy was influenced by several factors. One was the intention of Chen’s DPP government to abandon the SCS policy during the KMT’s administration to implement its de-​Sinocisation policies. This led to Taiwan’s passive stance on the SCS issue. At the same time, however, Chen’s government also tried to take advantage of the SCS issue to participate in multilateral dialogues and negotiations from which Taiwan was often excluded. The intention was to use the SCS issues as a way to expand Taiwan’s international presence while highlighting its status as a ‘sovereign state’. Moreover, Chen’s government also made the SCS policy an important part of its attempt to establish a narrative of Taiwan as an ‘ocean nation’, as opposed to China as a ‘continental nation’, and took some corresponding actions accordingly. It is against this background that Chen’s government gradually shifted from passive to active intervention in the SCS disputes. It should first be noted that the DPP’s attitude towards the SCS dispute had long been the subject of much internal party conflict before 2000 (Nordhaug 2001; Song 2000). One view maintained that the SCS belonged to the ‘Republic of China’ and the disputes concerned China and Southeast Asian countries. From this perspective, Taiwan had no need to ‘inherit’ these disputes, and should leave the SCS issue to the international community to resolve. For example in 1993, Chen Tangshan, an advocate of Taiwanese independence who also served as Taiwan’s Minister of Foreign Affairs during Chen’s presidency, had proposed the concept of the SCS as an internationally shared archipelago similar to Antarctica. An alternative view maintained that Taiwan must strive to ensure its voice was heard by actively participating in multilateral international organizations. Advocates of this approach argued that Taiwan must expand its diplomatic space by making stronger pre-​emptive declarations of the status of islands in the SCS and using this to negotiate with neighbouring countries in Southeast Asia (Zhang and Huang 2016; Song 2000). The SCS policy during the Chen period was mainly a fusion of these two ways of thinking. After Chen came to power in 2000, he initially adopted a more passive stance on SCS issues. However, in 2002 Beijing and the ASEAN countries signed the ‘Declaration of Conduct of Parties in the South China Sea’, agreeing to ‘shelve disputes and jointly develop’ the region. Chen’s administration became concerned that Taiwan’s role would be further marginalised, and began to take more active steps to demonstrate Taiwanese sovereignty in the SCS. In November 2002, Taiwan’s Minister of the Interior, Yu Zhengxian, went to the Pratas Islands to declare sovereignty, and proposed that Taiwan

Taiwan’s claims in the South China Sea  79 was willing to actively participate in the development and security of the SCS, share information, and maintain peace in accordance with the spirit of international cooperation (Liberty Times 2002). In January 2003, Vice President Lu Xiulian also went to inspect the Pratas Islands. In August of the same year, Yu visited Taiping Island (in the Spratly Islands) and held a ground-​breaking ceremony for the establishment of a satellite control point. Yu became the first ministerial official to visit the island (TVBS 2003). The administrative division of Taiping Island was established in 2005 and placed under the jurisdiction of Kaohsiung City, and a runway was added in 2007. Chen himself was present in February 2008 when the runway on Taiping Island was officially opened. He became the first head of state to visit the Spratly Islands. During his visit, Chen appealed to neighbouring countries to resolve disputes in the SCS peacefully in accordance with the UN Charter and the UNCLOS, emphasizing that Taiwan was willing to accept the contents of the Declaration on the Conduct of Parties in the SCS on the basis of sovereign equality. It was unfair, Chen maintained, to exclude Taiwan from the SCS regional security dialogue and joint development cooperation (Sun 2017, 108). He in turn proposed the so-​called ‘South China Sea Initiative’, which included the following four points (Fan 2015): (1) States in the region should accept the spirit and principles revealed in the ‘Declaration on the Conduct of Parties in the SCS’ and commit to peaceful settlement of disputes over territory and jurisdiction; (2) The development of the SCS should focus on the conservation of environmental ecology, rather than plundering marine resources, and priority should be given to the SCS as a marine ecological conservation area; (3) The SCS islands should be opened regularly for research and inspection by invitation by international ecological and environmental scholars and groups; (4) A ‘South China Sea Research Center’ would be established to ease the situation in the SCS through regular international seminars and Track II diplomacy. Chen’s government was hoping in this way to establish Taiwan’s sovereign state status through equal participation in multilateral and bilateral dialogue, negotiation, and cooperation on the SCS issue. The emphasis on the ecological status of the region was indicative of the DPP’s narrative of Taiwan as an ‘Ocean Nation’ (Chen 2015). As early as Chen’s visit to the United Kingdom in December 1999, during his presidential election campaign, he claimed that the United Kingdom and Taiwan were both maritime nations. According to Chen (2001), Taiwan is the centre of the Austronesian-​language peoples, rather than being an outpost of continental China. Playing the ecological card not only raised Taiwan’s profile in ‘environmental diplomacy’, but also opened the possibility of more substantive cooperation with Southeast Asian countries over environmental matters,

80  Yih-Jye Hwang and Edmund Frettingham thereby mitigating its isolation in multilateral discussions over other aspects of the SCS disputes. In March 2001, Taiwan published its first ‘Ocean White Paper’. It stated that, ‘without involving sovereignty disputes, Taiwan should actively cooperate with neighbouring countries on joint development issues, negotiate cooperation and manage conflict mechanisms, so as to create an environment of peace, security and prosperity in the Western Pacific’ (RDEC 2001, 53). The White Paper also suggested that Taiwan needs to incorporate its SCS policy as part of its overall maritime policy. Following the publication of the White Paper, Vice President Lu issued a so-​called ‘Ocean Nation Declaration’ during her inspection of the Pratas Islands in 2003 (Presidential Office 2003). Subsequently, the Chen administration introduced the National Marine Policy Programme in 2004. The White Paper on Ocean Policy and the White Paper on Ocean Education Policy were also issued in 2006 and 2007, respectively (see RDEC 2006; MOE 2007). At the core of these documents, Taiwan is emphasised as an ‘independent maritime sovereign state’. In short, the DPP government’s policy objectives in the SCS have been basically the same as that of the KMT. They have aimed to safeguard Taiwan’s sovereignty rights over the SCS and strengthen its development and management. There are also important differences, however. The U-​shaped line (or the historic waters), the core of the KMT’s narrative of the SCS, was not mentioned during Chen’s presidency. For the DPP government, claims to the historic waters are not only unrealistic, but also create further problems in connoting political continuities with mainland China. Framing Taiwanese sovereignty claims in the SCS as an extension of China’s historical claim to the region would complicate claims to recognition of a sovereign Taiwanese state.

Ma Ying-​jeou’s pursuit of ‘One China, Respective Interpretations’, and its claims on the South China Sea (2008–​2016) After Ma Ying-​jeou came to power in 2008, he returned to the policy of ‘One China, Respective Interpretations’ to promote a diplomatic truce on both sides of the strait. To ease relations with the PRC, Ma’s government returned to ‘The South China Sea Policy Guideline’ of 1993, which used the language of the ‘U-​shaped lines’ and ‘historic waters’. Ma showed more signs of cooperating with China on the SCS issue, yet his government also continued Chen’s ‘Ocean Nation’ narrative, and adopted a more practical approach to the disputes. As a result, sovereignty, resources, ecology, cooperation, and peace became the keywords of Ma’s SCS policy. Ma had already proposed his maritime policy during the 2008 election, advocating that Taiwan should pursue a ‘blue revolution’ to rejuvenate the country by turning to the sea (Ma and Siew 2008). At the same time, he reiterated Taiwan’s sovereignty and its inherent rights to traditional fishing grounds and resources in the SCS and the East China Sea. Taiwan must take

Taiwan’s claims in the South China Sea  81 a more proactive approach to ensure its interests were protected, Ma argued, as he turned again to the KMT’s approach from the early 1990s. On 13 August 2008, Malaysia declared that it had sovereignty over one of the reefs in the Spratly Islands –​the Malaysian government called it ‘Pulau Layang-​Layang’. Ma’s government issued an immediate statement opposing Malaysia’s claims (MOFA 2008). Firstly, it insisted, the ‘Nansha Islands, Xisha Islands, Zhongsha Islands, Dongsha Islands and nearby waters belong to the inherent territory and waters of the Republic of China, regardless of historical, geographical or international law’. Secondly, it called on all parties to shelve disputes over sovereignty and jointly develop resources in accordance with the principles of the Charter of the United Nations, the UNCLOS, and the Declaration on the Conduct of Parties in the South China Sea. The statement went on to reiterate Chen Shui-​bian’s ‘South China Sea Initiative’, claiming that sovereignty disputes in the SCS should be replaced by environmental protection, and resource plunder with ecology. Ma’s government issued a similar statement in 2009 when the Philippines claimed parts of the Spratly Islands (e.g. Scarborough Shoal) as territory of the Philippines as part of its Baseline Law (MOFA 2009). Ma’s government also conducted military exercises in the region. As mentioned earlier, Taiwan’s military forces were withdrawn during Lee Teng-​ hui’s presidency and replaced by the CGA. From 2011, however, the Coast Guard Unit’s troops in the Pratas and Spratly Islands began to receive training from the Taiwan Marine Corps, ostensibly to enhance their patrolling capabilities. Also in 2011, a mixed fleet of the Taiwan Navy and CGA was dispatched to the SCS while US and Vietnamese ships were operating in the area. They carried out a live-​fire military exercise at Taiping Island. More live ammunition exercises were conducted on Taiping Island over five days in the late summer of 2012, along with visits from the Secretary General of the National Security Council, the Minister of the Interior, and legislators from the KMT and DPP, all of whom declared Taiwanese sovereignty over the island and the SCS. In addition to diplomatic and military actions, Ma’s government also arranged civilian activities. In 2011, professors and students from National Taiwan Ocean University took a warship to Taiping Island and relaunched the so-​called ‘National Defense Nansha Training Camp’, which had been suspended in 1969 (Lee 2014). After the event, Ma met with participants of the summer camp in person (Presidential Office 2011). Three years later, Ma’s government exhibited historical materials about the SCS, including a map resembling the map of 1947, and Ma himself landed on Taiping Island in 2016 before he left office. Against this background, it is notable that Ma’s administration also indicated its willingness to cooperate with China on SCS issues. On 7 July 2015, the first day of the trial in the China–​Philippines arbitration case, Taiwan’s Ministry of Foreign Affairs (MOFA 2015) issued a statement. The statement made two points. Firstly, it argued that the 1947 map clearly showed the territory of the ROC, which included sea areas within the U-​shaped line.

82  Yih-Jye Hwang and Edmund Frettingham Secondly, the statement pointed out that the ROC is a founding member of the United Nations. Although it lost its right of representation in 1971, the official name of the country, ROC, remains in Articles 23 and 110 of the Charter of the United Nations. The statement therefore clearly stated the principle of ‘One China’ as unaffected by the ROC’s representative rights being lost to the PRC in 1971. The document was interpreted as meaning that Taiwan had no objection to the PRC claiming Taiping Island as belonging to ‘China’ during the trial.

Ontological security of Taiwan and Tsai Ying-​wen’s responses to the South China Sea arbitration (since 2016) On 16 January 2016, Tsai Ing-​wen won the presidential election, beating her opponent, Eric Chu of the KMT, by a margin of 25.08% (Central Election Committee 2016). She was inaugurated as president on 20 May 2016. Tsai’s SCS policy took up the DPP’s earlier approach once again, with its basic propositions clearly reflected in the Tsai government’s response to the SCS arbitration of 2016. It is worth noting here that there had been rumours before the 2016 election that, should the DPP return to power, Tsai might abandon Taiwan’s sovereign claims over the SCS. In September 2014, Zhang Xucheng, the former Secretary-​General of the National Security Council of Chen Shui-​bian’s government, made it clear to reporters that: The dash line of the SCS proposed by the KMT government in 1947 has nothing to do with today’s Taiwan authorities . . . DPP people, including myself, have stated that Taiwan should adjust its claims on the SCS territory. . . . If the DPP regains power, Taiwan will give up its claim to sovereignty over the SCS. (Taiwan News 2014) Likewise, the pro-​independence legal scholar Chiang Huang-​chih published an article in the press (2015), arguing that Taiwan should abandon Taiping Island because it is too costly to keep. Taiping Island, he argued, needs external support in everything except sun and air, and this statement was cited by the Philippines during the arbitration to claim that the feature is a ‘reef’ and not an ‘island’. In March 2016, Chiang attacked the Ma Ying-​jeou government even more directly, claiming that Ma’s government used China’s ‘historic waters’ as the legal basis for Taiwan’s sovereign claims over the SCS, and assisted the PRC in positioning Taiwan as a part of China in international litigation. All the policies of Ma’s government, he continued, were intended to ensure the rights of ‘China’s Taiping Island’, not ‘Taiwan’s Taiping Island’; ‘The aim is not only to prove that Taiping Island is the property of China, but also thereby that Taiwan is part of China’ (Chiang 2016).

Taiwan’s claims in the South China Sea  83 There were interesting echoes of Jiang’s rhetorical call for Taiwan to abandon the SCS in the Philippines’s argumentation during the arbitration. Lawyers for the Philippines asserted that the legal status of the SCS Islands was inconclusive, and China did not acquire sovereignty over the occupation of the SCS islands in 1946. According to the Philippines, although the San Francisco Peace Treaty stipulated that Japan renounced their sovereign claims to occupied overseas territories, including ‘the Spratly Islands and Paracel Islands’, it did not say to whom. In other words, the sovereignty of the SCS islands had never been decided. If this is accepted, there is not only no basis for the Chinese claims over the SCS, but it also implies that Taiwan’s own legal status is undetermined too (Gau 2016, 489–​490). Thus, any discussion of the 1947 map of the islands in the SCS inevitably raises questions of the legitimacy of the ROC’s capture of Taiwan in the aftermath of the World War II. Questioning the validity of this map invokes the ‘theory of the undetermined status of Taiwan’, which has been the legal basis of the Taiwan independence movement. The PCA published an arbitration award on 12 July 2016 that ruled in favour of the Philippines. It stated that China has ‘no historical rights’ based on the ‘nine-​dash line’ map. The court also ruled that all maritime features of the Spratly Islands –​including Taiping Island, the largest natural area controlled by Taiwan –​are reefs rather than islands (PCA 2016; see also Tsai and Chen 2017; Liu and Kan 2017). China immediately rejected the ruling. Taiwan also opposed it, but the rhetoric of Tsai’s administration was ambiguous. Different statements were issued by the Ministry of the Interior, the Mainland Affairs Council (MAC), the MOFA, and the Presidential Office immediately after the ruling. A few days later, the Legislative Yuan also issued a joint statement on the SCS arbitration. All five of these documents superficially agree that the arbitration ruling infringes on Taiwan’s sovereign rights in the SCS, but there are certain discrepancies in the wording of the statements. The statements by the MOI and the MAC referred to the 1947 map with the claim that Taiwan has sovereignty over the SCS (MOI 2016). Since the ‘U-​shaped line’ is from this map, one might take this to mean that the DPP government was willing to inherit the ‘U-​shaped line’ and acknowledge the continuity of the ROC’s claims going back to 1949. However, these two documents do not in fact use the terms ‘U-​shaped line’, ‘11-​dash line’, or ‘historic waters’ at all. They only refer vaguely to the MSCSI. What’s more, the word ‘map’ did not appear in the statements of the Presidential Office (2016), the MOFA (2016b), and the Legislative Yuan (NOWnews 2016). The statement of the Presidential Office only emphasised that ‘the sovereignty of the SCS islands and their related waters belongs to the ROC’, but did not elaborate on its legal basis –​even the text ‘1947 map’ is gone –​to avoid talking about the ‘U-​shaped line’ or ‘historic waters’ in a way that might echo the PRC’s claims. The statement of the MOFA is more concerned about the sovereign status of Taiwan than Taiwan’s sovereign rights in the SCS. The first

84  Yih-Jye Hwang and Edmund Frettingham article of the statement opposes the use of the term ‘Taiwan Authority of China’ in the award. Likewise, the DPP-​led legislative joint statement also insists that ‘in the judgment of the Permanent Arbitration Tribunal, “Taiwan Authority of China” derogates our status as a sovereign state’. How should we explain these differences? The most plausible reading is that these statements were all intended for different audiences. It is significant that the MOI and the MAC are the ministries that deal with internal affairs in Taiwan. With the statement by the MOI, the Tsai government was trying to appease domestic public opinion (especially those from the blue camp), while the MAC statement was issued with an eye on the PRC. The Presidential Office and the MOFA both represent Taiwan to the world and deal in different ways with foreign policy; both failed to mention the legal basis of Taiwan’s sovereign claims over the SCS. In addition, these five statements all agreed that the SCS issues should be resolved through multilateral international consultations, and Taiwan should participate in these multilateral talks as a sovereign state. Therefore, one can conclude that defending Taiwan’s claims in the SCS is not a top priority for the DPP government, as the Tsai government is more interested in highlighting Taiwan’s position as a sovereign independent country. In other words, the question of sovereignty over the SCS is an international issue for China and neighbouring countries; but for Taiwan, it raises more fundamental questions about identity that go back to the civil war. These ambiguous discursive representations reflect ontological security concerns that also inform the Tsai administration’s strategic calculations in the SCS. Pursuing Taiwan’s sovereignty claims in the SCS would create, in practice, serious complications for Taiwan’s security relationship with the US as well as its economic and trade relations with ASEAN countries. This is not only because ASEAN states contest Taiwan’s claims in the region, but also because the legal basis of Taiwan’s sovereignty claims is that the two sides of the Taiwan Strait belong to ‘One China’. This implies that, on this issue at least, Taiwanese interests are aligned with those of the PRC. This puts Taiwan in a difficult position, as cooperation with Beijing would not only alienate its ASEAN neighbours but also alienate the US. Since 2009, the ‘pivot to Asia’ has involved a shift in the US strategic focus from the Middle East to the Asia-​Pacific region. The US has sought to increase its influence in the region and restrain China through political and security cooperation with Southeast Asian states and by supporting their claims in the SCS. A  strategic, issue-​ specific alignment with China on the SCS issue would endanger Taiwan’s military cooperation with the US by putting it on the ‘wrong’ side of the regional alignment of forces. The military assistance and the security guarantees that the US provides are crucial, however, if Taiwan wishes to ensure its independence from the mainland. This independence is the highest purpose of the DPP government, and it is not worth risking in pursuit of legal claims that are themselves tied up with a ‘One China’ identity. In short, there are three basic elements in the Tsai government’s SCS policy. First, the government pays lip-​service to the ROC’s claim to sovereignty over

Taiwan’s claims in the South China Sea  85 the SCS, but restricts the exercise of sovereignty to Taiping Island and its surrounding waters, while pulling back from the strong declarations of sovereignty made by Ma’s government. Secondly, disputes in the SCS are handled in ways that are consistent with the US position, rather than through cooperating with the PRC. Third, Tsai’s government stresses that Taiwan, as a claimant, should participate in multilateral international negotiations on an equal basis, thus highlighting Taiwan’s status as a sovereign state.

Conclusion In this chapter, we have proposed that the SCS dispute in the case of Taiwan is, to a significant degree, driven by behaviour motivated by ontological security concerns. The (un)importance of the SCS, from the Taiwanese perspective, lies not merely in its strategic situation, or the potential oil wealth under the seabed around them, but most fundamentally in the meaning it has within the terms of contemporary identity politics in the region. As shown in this chapter, the similarities and continuities throughout the different governments and administrations in Taiwan are crucial to understanding the official Taiwanese government position on the SCS because they connect the international dispute over the islands to a broader crisis of ontological security in Taiwan. Here we should note that the various administrations’ responses to the dispute do more than simply define Taiwan’s relationship with the South China Sea. They also define Taiwan itself. The SCS therefore takes on its specific significance in Taiwanese politics in the context of broader political struggles over what it means to be Taiwanese. The status of the SCS and rightful ownership in the region are issues inextricably linked to the most deep-​rooted and divisive issue in Taiwanese politics; to take a position on the SCS is also to take a position on the question of Taiwanese identity. As a result, the current territorial dispute over the SCS for Taiwan may, on the surface, be an issue about sovereignty over its small islands or rocks, but the stability and continuity of Taiwan’s self-​identity remains a powerful subtext in which questions of sovereignty over the islands are embedded and contested. Analysis of the controversies surrounding the SCS from a Taiwanese perspective must reckon not only with the strategic and economic interests at stake, but also with the broader concerns about ontological security at play in regional and domestic politics, and the politics of identity through which these concerns are expressed. Taiwan’s divisions over the islands reflect an even deeper anxiety over identity. The islands in the SCS are significant, in part, as a battleground in domestic conflict driven by ontological (in)security over the identity of Taiwan. Claiming the islands as the inheritance of their earlier possession by China or renouncing any claim to them are, equally, attempts to secure an identity threatened first by international marginalisation and then by domestic political divisions. Defining the SCS’s relation to Taiwan is a way to define Taiwan itself, in response to the radical uncertainty surrounding Taiwanese-​ness.

86  Yih-Jye Hwang and Edmund Frettingham

Notes 1 For instance, on 14 February 1975, the Taiwanese government issued to the Ministry of Foreign Affairs (MOFA) of Vietnam a White Paper on territorial sovereignty over the Paracel Islands and Spratly Islands, proposing a statement: ‘The sovereignty of the Republic of China on the Spratly Islands and Spratly Islands is unquestionable and inviolable’. In addition, Taiwan’s MOFA spokesman, Jin Shuji, said at a press conference on 25 April 1980: ‘The Spratly Islands are part of the ROC’s inherent territory. The Government of the ROC has repeatedly stated that the ROC has solemn sovereignty over the Spratly Islands. This position is by no means a one-​sided action or measure that can be changed’. 2 In 1947, the then Ministry of the Interior (MOI) of the ROC officially published the MSCSI, which marked the islands in the SCS as an inherent territory of China in the form of an 11-​dash line. It declared that the waters in the discontinuous line were China’s ‘historic waters’.

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4  Power, international law, and the Philippine hedging strategy in the South China Sea Chih-​Mao  Tang

Introduction Over the past two decades, the South China Sea (SCS) has become a flashpoint in the changing dynamics of East Asian geopolitics, particularly as China has assertively established and extended its de facto control over maritime features in the area. The Philippines, a primary but weaker party to the SCS dispute, has responded to China’s increased assertiveness through a greater reliance on law and power to protect its sovereignty and related maritime rights. The Philippines uses domestic and international legal processes to strengthen the legitimacy of its sovereignty claims in the SCS and its exercise of related rights, helping it to internationalize the SCS dispute. In addition to legal measures, the Philippines is taking advantage of the US military presence and Japan’s security assistance to deter China’s growing military presence in the SCS. The Philippines’ use of power and law culminated during the Benigno Aquino III administration in the submission of an arbitration application to the Permanent Court of Arbitration (PCA) against China over the determination of certain maritime features in the SCS, and the maritime claims to which these features are entitled. At the same time, the Aquino administration also endeavoured to deepen collaboration with the Obama administration in that government’s policy to bring “Rebalancing to Asia”. In July 2016, the Philippines won an overwhelming victory in the SCS arbitration case, not merely lending legitimacy to its SCS claims, but also giving rise to a chance to alter the dynamics in bargaining with China. However, the Rodrigo Duterte administration, which took office on 30 June 2016, seemed to shy away from utilizing any arbitration ruling to further press China. Instead, the Duterte administration set aside the legal victory and quickly turned to improve bilateral relations with China that had become strained as a result of the SCS dispute. This apparent change in policy stirred up suspicions that Manila is abandoning its rigid SCS policy, but these suspicions are potentially unfounded. Under the Duterte administration, the Philippines has not abandoned any of its SCS sovereignty claims. Rather, it is hedging against China to minimize any undesired security risks, while maximizing desired interests in

92  Chih-Mao Tang bilateral relations with China. The SCS dispute is a focal point of a Philippine hedging strategy that leverages both power and law. Although legalization and defence enforcement are alternately used in the Philippines’ SCS policy to reinforce its maritime sovereignty, the effectiveness of legal action varies with fluctuations in the power of the Philippines to ensure enforcement ever since the Philippines gained independence from the US in 1946. In fact, without external assistance, particularly US defence support, the Philippines, by itself, is unable to bear the costs of administrative and military action to protect its maritime sovereignty. This is brought into stark relief by China’s reliance on its full national strength to pursue controversial claims in the SCS and occupy features within these waters, presenting a fait accompli. This chapter delineates the dynamics of the use of power and law in the Philippine policy of establishing and protecting sovereignty and maritime rights in the SCS. In doing so, it points out that concerns over power are the main thread running through the Philippine SCS strategy. In the following sections, a brief theoretical discussion is provided to explain the roles of law and power in the hedging strategy of a weak state. Then, the chapter retrospectively traces and scrutinizes how the Philippine SCS policy evolved with the change of power structure and security environment in East Asia and with the change of its relations with great powers in the region.

Power, international law, and the weak state’s hedging strategy Realistically, when a weak state is in conflict with or threatened by a great power, it is compelled to adopt one of two strategies to maintain its security. Either it adopts a balancing strategy, allying with another great power against the menacing one, or it adopts a bandwagon strategy, allying with the threatening one (Waltz 1979; Walt 1985). In either strategy, the weak state is bound in tight political and military relations to its great-​power counterpart, which often causes a loss of its autonomy in international politics (Morrow 1991). In other words, a weak state’s survival is highly contingent on the will of its great-​power ally. Hence, weak states seek to avoid adopting either such strategy unless faced with an imminent and significant security threat posed by a great power. When faced with an as-​yet-​indeterminate security threat, immediate adoption of either a hard bandwagon or balancing strategy could prove a costly and unwise tack. Instead, hedging tends to be the preferred alignment policy, allowing states to orient themselves along the policy spectrum between balancing and bandwagon, and to manage security uncertainty in relations with great powers for their own protection or benefit (Roy 2005; Ciorciari 2010). Hedging is a tactic that “entails a low commitment” to a state that is neither entirely friend nor foe to “reduce some of the risk inherent in a more full-​fledged alliance” with that state (Weitsman 2004, 20–​21). In the context of the tripartite relationship, one party adopts a hedging strategy to prevent choosing one side at the expense of its relationship with the other,

The Philippine hedging strategy  93 simultaneously preserving ties with both parties to mitigate undesired dangers, maximize returns, and cultivate a fallback position amid uncertainty (Goh 2005, 2, 2008, 121). From the viewpoint of the weak state, hedging is an ambiguous strategic policy that mixes multiple approaches to relations, allowing the weak state to hold leverage against its great-​power counterparts, thereby avoiding or reducing negative consequences, such as a reduction in autonomy resulting from subordination to a great power or the costs of being entrapped or abandoned in conflict due to great-​power rivalry (Snyder 1984). For the weak state, hedging may also increase positive gains within an uncertain international environment (e.g. military security commitment and economic benefits). Operationally speaking, hedging comprises multi-​faceted actions that are in essence mutually opposed and counteracting, including indirect balancing, dominance denial, economic pragmatism, binding engagement, and limited bandwagon behaviour (Kuik 2008; Kuik 2016). Material power, such as military force and economic capacity, is still the main concern, but institutions, such as international organizations and international law, that function to regulate material power may also play a role. Power and law may alternately serve as sword and shield in the execution of a hedge, allowing the state to attain what it desires and protect what it hopes to preserve. The relationship of power and law in international politics is an enduring topic of debate among scholars of international studies. In the view of realism, international politics is a struggle for material power among sovereign states that are rational unitary actors who are constantly concerned about relative gains and the pursuit of power to ensure survival in the anarchic system. With regard to this power-​centric perspective, international law is merely an ancillary to power politics among dominant states, and its relevance in international politics is contingent on whether its regulatory function is considered useful to upholding the dominant states’ status and maintaining their balance of power. Without the dominant states’ recognition, international law is simply a tiger without teeth. This view assumes that weak states’ entitlement to legal rights and protections in the international system is simply nominal. The asymmetric state of power distribution makes weak states subordinate in the process of law-​making and enforcement, which is framed by dominant states. In other words, it is difficult for weak states to achieve advantageous outcomes in legal processes unless their preferred outcomes are in accordance with the interests of dominant states. According to the realist view, international law, therefore, is not helpful to weak states in their dealings with dominant states. Yet, liberal institutionalism, which draws on the concept of absolute gain, contends that mutual cooperation is more an efficient and effective means of maximizing both national and collective interests than it is a power contest, and that international cooperation is possible in an anarchic world. Although the problems of high transaction costs, insufficient information, and cheating make interstate cooperation difficult to achieve, these hurdles are overcome if

94  Chih-Mao Tang states work together to create institutions capable of persistently regulating their interactions. International law is such an institution. It is a set of formally codified rules, created by the agreement of states, to foster a stable, manageable, and predictable international environment to achieve cooperation and peace. In the operation of the international legal system, each state is assumed to have the same entitlement to rights and status in substantial and procedural terms. This presumed legal equality provides weak states a shield to withstand the raw power of strong states and circumvent direct power contests that they are unlikely to win. Weak states may, therefore, become more able to defend their relevant interests and be more involved in making and managing the world order in ways that facilitate more advantageous outcomes under anarchy. According to this view, weak states are therefore afforded the opportunity to play consequential roles in influencing international politics via international law. In contrast to the material-​based theoretical approaches mentioned above, constructivism emphasizes the role of norms in formulating a state’s interests and its reaction to changes in international politics. In the constructivist view, international law is not merely a regulatory mechanism, but also a normative structure that “conditions the politics of legitimate statehood and rightful action” among states (Reus-​Smit 2004, 15). This view posits that international legal processes collectively serve as a communicative avenue through which states debate and struggle over the legitimacy of the pursuit and protection of national interests in international politics. In this interactive process, normative or legal principles contained in international law produce a framing effect on a state’s determination of interests and its approach to achieving those interests, which subsequently affects a state’s behaviour in interstate competition and cooperation. When states act in accordance with the legal principles, they are reinforcing their identity in the existing international legal system. However, it may also be the case that states create new identities via legal processes as they redefine their interests to better deal with new challenges springing from the changing international environment. In other words, according to the constructivist view, the international legal system not only conditions interstate interactions, but also serves as an incubator of new rules and principles. International law provides participants with normative power to confine the effect of material power and redefine the utility of using physical power, to defend or alter the current dynamics of international politics to their benefit. In this regard, international law helps empower weak states to adjust asymmetric relationships with strong states so they can improve their interests and status or prevent unfavourable outcomes in their interactions with strong states. However, although liberal institutionalists and constructivists convincingly stress the role and importance of international law, their respective arguments do not entirely rule out the influence of material power on the weak state’s hedging behaviour. For the liberal institutionalist, international

The Philippine hedging strategy  95 law is essentially instrumental, reflecting the result of participants’ collective cost–​ benefit calculations. Regulatory legitimacy is, therefore, contingent on the satisfaction of the participants with mechanisms for the distribution of costs and benefits. The extent to which international legal procedure is considered fair by states in the distribution of costs and benefits in turn conditions their willingness to comply with the law and adjudication, which consequently determines the stability and effectiveness of the international legal system (Franck 1995). In light of this logic, if a legal procedure or judgement is considered by a state to be unfavourable, and the anticipated cost of refusing to abide by the procedure or judgement, such as punishment or reputation costs, is bearable, a state is encouraged to disavow the results of the legal processes, thereby circumscribing the jurisdiction of international law. Strong states are better positioned to take such action because they are more capable of independently pursuing and protecting interests in the anarchic system. In other words, the optimistic prospect of weak states taking advantage of international legal processes to constrain strong states is somewhat uncertain. To deter strong states from abandoning or failing to abide by legal processes, there must be sufficient countermeasures, such as increased costs and strengthened enforcement capacity. A weak state clearly lacks the capability to carry out those countermeasures to force compliance of a strong state. As a result, countermeasures by weak states require the material power of other states, particularly a strong state with whom its interests are aligned. Similarly, this cost–​benefit logic also applies to the constructivist argumentation about the normative power of international law. In the constructivist view, international law can, to some extent, autonomously frame and constrain states’ behaviour because it comprises normative principles that are believed to be right by those who participated in their generation (Reus-​ Smit 2004). However, a state’s faith in international law is political in nature. It is the outcome of long-​term interactions between states and is primarily based on concerns over prospective costs and benefits to a state for its actions and reactions within the international legal system. In this regard, the constancy of the regulating power of international law rests on the continuous practice of legal principles and the consensus among states that breaching a commonly accepted legal principle gives rise to a detrimental outcome that could not be easily offset by any anticipated gains that accrue from the offending action. This implies that a state’s compliance with international law is not necessarily perpetual. A state’s faith in international law is somehow selective. It could change along with a shift in a state’s perception of its interests and environment. If abiding by a rule or principle causes greater loss than gain, a state has an incentive to circumvent or contravene a rule, or to directly change the content of a legal principle to align with its national interests. However, venturing to contravene an international rule requires the capability to withstand potential costs, and initiating a direct change in the content of the

96  Chih-Mao Tang international legal system requires substantial capability to reformulate the social identity of the existing international legal system. Comparatively speaking, a great power is more able to unilaterally carry out these time-​consuming and costly actions inside and outside international legal processes. In other words, if a weak state cannot effectively decrease a great power’s incentive of taking those actions by increasing the cost of actions entailed in contravening legal processes, then the expected binding effect of legal norms is less helpful than assumed in a weak state’s hedging against a great power. Furthermore, if a weak state wants to limit the undesired behaviour of a great power by creating a new norm or principle of behaviour in international society, then even more external assistance is required. Thus, material power comes into play. Material power is required to underpin the practice of legal norms and rules, so such norms enjoy legitimacy and regulatory power. In sum, while international law is assumed to exert institutional as well as normative influence, it cannot be used effectively by a weak state hedging against a great power absent material power. The roles of law and power in a weak state’s hedging strategy against a great power depicted above are evident in the Philippines’ actions to consolidate its claims in the SCS since the end of World War II, but the role of power has become more important in the Philippine hedging strategy against China in the SCS since the Cold War ended.

The evolution of the Philippines’ use of power and law in the South China Sea since 1946 From 1946 to 1990 In the SCS, the Philippines has a long record of using law and power to make and consolidate its claims of territorial sovereignty and associated maritime rights. After the Philippines gained independence from the United States in 1946, Manila declared in the 1935 Philippine Constitution that the Philippines comprises all territories ceded to the US by the 1898 Treaty of Paris, the 1900 Treaty of Washington, and the 1930 Treaty between the US and Great Britain.1 The Philippines’ territorial claim was later overlapped by the 11-​dash-​line claim of the Republic of China (ROC) in 1947, and then by the 9-​dash-​line claim of the People’s Republic of China (PRC, China) in 1953. Even though the Philippines was faced with legal challenges in the SCS from the ROC and PRC, respectively, during the Cold War, the nation was not hindered in availing itself of domestic and international legal processes to establish the legitimacy of its SCS claims. It actively exercised and expanded its jurisdiction over the islands, maritime features, and waters of the SCS via de facto control and administration, while backed by relatively stronger national defence capability and ongoing defence ties with the US.

The Philippine hedging strategy  97 In 1949, Manila issued Republic Act No. 387, also known as the Petroleum Act of 1949, to claim its right to resources in Philippine territorial waters and its continental shelf (The Republic of the Philippines 1949). In 1956, the Philippine government supported the sovereignty claim of Philippine national Tomas Cloma over a part of the Spratly Islands, declaring the islands res nullius, as Japan had been forced to renounce its ownership over the Spratly’s at the 1951 San Francisco Peace Conference (Wu 2013, 127–​128). After receiving support from the Philippine government, Cloma established “Freedomland” on the discovered maritime features. In the meantime, the United Nations held its first Conference on the Law of the Sea (UNCLOS I) in Geneva, which ultimately yielded four international treaties in 1958:  the Convention on the Continental Shelf, the Convention on the Territorial Sea and Contiguous Zone, the Convention on the High Seas, and the Convention on Fishing and Conservation of the Living Resources of the High Seas. The four Conventions came into force in the 1960s. However, the Philippines, as an archipelagic state, did not participate in UNCLOS I because no conclusion was reached on the breadth of the territorial sea (i.e. there was no serious discussion of an archipelagic regime, and therefore no protection was afforded to the interests of archipelagic states). Nonetheless, when the international legal process provided for the demarcation of maritime zones and outlined associated maritime rights in the 1950s and the 1960s, Manila launched a series of actions to occupy territory and employed domestic law to consolidate its SCS territorial sovereignty claims. In 1961, the Philippines issued Republic Act No. 3046 to define the baseline of the territorial sea of the Philippines (The Republic of the Philippines 1961). Presidential Proclamation No. 370 in 1968 declared that all mineral and other natural resources on the continental shelf of the Philippines were under the jurisdiction and control of the Republic of the Philippines (The Republic of the Philippines 1968a). Additionally, Republic Act No. 5446 in 1968 amended the baselines of the territorial sea as originally presented in Republic Act No. 3046 (The Republic of the Philippines 1968b). Following these legal actions, during 1970–​1971, the Philippines launched occupations of Nanshan Island, Loaita (Kota) Island, Thitu Island, Northeast Cay, West York Island, and Flat Island in the Spratly to give substance to its territorial claims. The legal and military actions above were codified by Article 1 of the 1973 Constitution, which declared that Philippine national territory comprises: the Philippine archipelago, with all the islands and waters embraced therein, and all the other territories belonging to the Philippines by historic right or legal title, including the territorial sea, the airspace, the subsoil, the seabed, the insular shelves and the other submarine areas over which the Philippines has sovereignty or jurisdiction. The waters around, between and connecting the islands of the archipelago, irrespective of

98  Chih-Mao Tang their breadth and dimensions, form part of the internal waters of the Philippines. (The Republic of the Philippines 1973) Shortly afterwards, in 1974, the Marcos administration coerced Cloma into transferring his Freedomland to the Philippines. In 1978, Freedomland was officially renamed by the Philippine government as the Kalayaan Island Group (KIG) by reason of proximity in Presidential Decree No. 1956 (The Republic of the Philippines 1978). After the KIG was formally established, Manila declared the establishment of a 200-​nautical-​mile Exclusive Economic Zone (EEZ) with Presidential Decree No. 1599 (The Republic of the Philippines 1988). Manila also moved forward with the occupation of Lankiam Cay in 1978 and Commodore Reef in 1980, and amended base agreements with the US in 1979, reaffirming that US power remains present on Philippine soil. This demonstrates that the Philippines built up and exercised power in line with legal action in a planned way. Alternately employing legal and military means over several decades, thereby establishing de facto control, laid the groundwork for the Philippines’ signing of the UNCLOS in 1982, which the Philippines ratified in 1984. While the Philippines executed a series of military occupations and administrative actions to legitimize its SCS sovereignty claims and related rights, the PRC was also taking explicit, coercive action to defend its own SCS claims. In 1974, the PRC militarily clashed with Vietnam (South) over the Paracel Islands, ultimately wresting control of the islands. However, the PRC did not behave towards the Philippines in the SCS as it did towards Vietnam during the same period. This difference in behaviour is not merely because the PRC lacked the naval capability to assume and maintain persistent control over the Spratly Islands, but also because any military action against the Philippines would certainly have precipitated US military involvement under the US–​ Philippines Mutual Defense Treaty (MDT), in force since 1951. Confronting the US did not comport with China’s strategic interest at the time –​that of cooperating with the US against Vietnam and the Soviet Union –​and such confrontation could also have hindered the economic reform China began in 1978. In other words, the US military presence played a significant role in helping Manila to tighten its grip on claimed SCS territory. However, in March 1988, the PRC clashed with Vietnam over Johnson South Reef in the Spratly Islands, sending the Philippines an alarm signal that the SCS situation was changing. In fact, China had begun to occupy reefs and atolls in the KIG while the Corazon Aquino administration dealt with domestic political and economic instability in the wake of Ferdinand Marcos’s departure in 1986, and confronted domestic opposition to the US presence in the Philippines that cast doubt on the fate of the MDT. Against this backdrop, then President Aquino paid an official visit to China in April 1988, calling for mutual respect for sovereignty and the settling of the SCS dispute by international rules. In

The Philippine hedging strategy  99 response, Manila gained a promise from Beijing to temporarily shelve the sovereignty issue in the SCS (Kreuzer 2016, 256–​257). President Aquino’s 1988 visit to China demonstrated that Manila was aware of its weak defence capability vis-​à-​vis China’s slow encroachment on Philippine sovereignty in the SCS, particularly in the face of the uncertain future of US military basing in the Philippines. This implies that, in prior decades, the US military presence in the Philippines had been a crucial factor aiding the Philippines’ legal and military tactics to legitimize and protect its SCS claims to territory and associated maritime rights. Only behind the shield of the MDT could Manila send a credible signal to other SCS disputants that it was capable of winning in a conflict over disputed SCS territory. In other words, Manila leveraged its alliance with the US to effectively deter China. Meanwhile, China’s pursuit of economic development prevented it from implementing an aggressive policy in the SCS, giving the Philippines time and space to deal with the SCS issue. In short, as shown above, during the Cold War era, the Philippines was generally more active than China in establishing and consolidating sovereignty over its territorial claims in the SCS that overlapped with those of China. From 1991 to 2016 After the Cold War, the long-​enduring US–​Philippines alliance was in turmoil because of the termination of the 1947 Military Base Agreement (MBA). The end of the MBA in 1992 forced US forces to withdraw from their bases in the Philippines, including Subic Bay Naval Base and Clark Air Base, the largest bases of US forces in Asia from which the US projected power throughout Southeast Asia. This withdrawal was a result of both nationalist opposition to the US presence that defeated the ratification of a new basing package in the Philippine Senate in 1991, and of unsatisfactory financial compensation from the US for leasing the military bases, the US being in the midst of economic difficulties at the time (Park 2011, 273–​274, 279). Unquestionably, the departure of US forces left a power vacuum in Southeast Asia, and in the SCS in particular, causing trepidation among the United States’ smaller regional allies and in turn compelling them to explore new approaches to managing regional security. This development opened a door for China to use its power as well as legal means to increase its reach in the SCS. In February 1992, China made a further step to consolidate its SCS sovereignty claims via domestic law with the enactment of the Law on the Territorial Sea and the Contiguous Zone of the People’s Republic of China, which prepared a legal foundation for China to occupy Mischief Reef, located about 135 miles west of Palawan, within the Philippine-​claimed EEZ. For the Philippines, the end of the MBA clearly dealt a critical blow to its capability to cope with international and domestic security threats. To mitigate the negative impact of the withdrawal of US forces, President Fidel

100  Chih-Mao Tang Ramos, who took office in June 1992, quickly moved to shore up military ties with the US. He stated that military cooperation with the US would continue, and called for a review of the MDT and a new framework for economic cooperation between the two states (Ramos 1992). In his visit to the US in 1993, President Ramos again called for strengthening the MDT, and welcomed US determination to oppose any resort to the use of force in the Kalayaan or Spratly areas (Clinton and Ramos 1993). Concurrently, President Ramos issued executive orders to continue provisions of the US–​Philippines Status of Forces Agreement to allow US military personnel to remain in the Philippines. However, even as the Ramos administration worked to bolster defence relations with the US, it also resorted to dual diplomatic manoeuvres: internationalizing the SCS dispute while strategically engaging with Beijing to stabilize uncertain security conditions in the SCS (Kreuzer 2016, 257). The administration forged consensus within ASEAN at the 25th ASEAN Ministerial Meeting (AMM) in Manila in 1992, later known as the ASEAN Foreign Minister’s Meeting, gathering support from member states that culminated in the issuing of the ASEAN (Manila) Declaration on the SCS, a common statement on the SCS issue. Apart from its work within ASEAN, the Philippines also continued to work on its own and hereby continued to demonstrate its dominion over its SCS claims by exercising jurisdiction. For example, in May 1994, the Philippine Department of Energy approved the application of the US oil company Vaalco to explore for oil near Reed Bank, 400 nautical miles west of Palawan, drawing protests from China, which claimed that the move infringed on its sovereignty and violated the principle of joint exploration agreed upon in 1988. Later, in 1995, China built and fortified structures on Mischief Reef. This action led to the Ramos administration reinforcing the Philippine garrison on Thitu Island of the KIG as a demonstration of protest and an act of deterrence. Although both sides soon defused the crisis that ensued and agreed on a code of conduct to prevent similar incidents in the future, the 1995 Mischief Reef Incident struck a heavy blow to Manila’s economic and political engagement with China, and consequently provided the means for the Ramos administration to earn domestic support for revitalizing military ties with the US (Storey 1999, 111, 118). The incident also piqued Washington’s concerns over the impact of China’s use of coercion in pursuit of its territorial claims on Washington’s own security interest in the SCS. As such, Washington did not rule out the use of force in dealing with any clear violation of UNCLOS that might interfere with sea lanes, even as it attempted to steer clear of the dispute (Department of Defense 1998). In other words, the Philippines was backed by the US. Multilaterally, the Philippines received diplomatic support from ASEAN members with regard to the Mischief Reef Incident, with ASEAN issuing a joint communique in July 1995 that called on all parties “to refrain from taking actions that could destabilize the region, including

The Philippine hedging strategy  101 possibly undermining the freedom of navigation and aviation in the affected areas” (ASEAN 1995). However, structures that China had constructed on Mischief Reef were found in 1996 to have been upgraded, which constituted a clear breach of the 1995 China–​Philippine code of conduct. In response, the Philippines upgraded an airstrip and increased the military equipment of personnel garrisoned on Thitu Island (Odgaard 2002). Given the renewed conflict between China and the Philippines over Mischief Reef, Manila gained support from the 29th AMM in 1996 in the form of an endorsement of a regional Code of Conduct (COC) in the SCS. Even though the Philippines won an endorsement of an SCS COC within ASEAN, the US–​ Philippines security relationship faltered. In December 1996, the Philippine Supreme Court ruled that President Ramos’s executive orders to continue US–​Philippines military ties were unconstitutional, ending the legal status of US military personnel in the Philippines. Subsequently, US–​Philippines joint military exercises ceased, and US military personnel were barred from entering the Philippines. Therefore, the Philippines and the US were compelled to negotiate a Visiting Forces Agreement (VFA) to restore the legal status of US military personnel in the Philippines, which was signed in February 1998 (Niksch 2000, 1–​2). As US–​Philippines relations floundered, China was carefully and gradually strengthening its grip on its claims within the SCS. In 1997, China built new structures near Philippine-​controlled Loaita (Kota) Island of the KIG, sending Chinese State Oceanic Administration vessels to patrol the vicinity. Chinese vessels attempted, but were ultimately prevented, from approaching Scarborough Shoal, the ownership of which remained disputed by China and the Philippines. Apart from the new structures near Loaita (Kota) Island and the attempts to approach Scarborough Shoal, the Chinese were also stealthily militarizing the structures they built on Mischief Reef to add to the military installations that had already been constructed on Johnson South Reef and Fiery Cross Reef, also located in the Spratly. Given what Manila viewed to be the undesired trajectory in regional security, the Philippine Senate, at the Joseph Estrada administration’s urging, ratified the VFA in May 1999, restoring the legal status for US military personnel and allowing them to once again participate in defence-​related activities covered by the 1951 MDT (De Castro 2009, 404–​405). The effort that the Ramos and Estrada administrations devoted to restoring security relations with the US shows that the Philippines greatly relied on US assistance to deal with external security threats. Following the ratification of the VFA, joint military exercises resumed on Philippine soil in January 2000. Even though US–​ Philippines security cooperation resumed, Manila still kept a bilateral negotiation channel with China open to deal with maritime disputes. Also, on the multilateral front, ASEAN and China started negotiating a COC in the SCS in 2000, finally bringing about a non-​binding ASEAN–​ China Declaration on Conduct of the Parties in the South China Sea (DOC) in 2002.

102  Chih-Mao Tang The revitalization of the US–​Philippines security relationship was further advanced by the United States’ Global War on Terror that was launched in the wake of the 9/​11 attacks in 2001. The Arroyo administration viewed Washington’s anti-​terrorism campaign as an opportunity to draw the US back to the Philippines to help bolster national military capabilities necessary to tackle domestic insurgency and terrorism. From the US viewpoint, deepening security relations with Manila by providing assistance to the Philippine defence reforms, shoring up Philippine military capabilities, and engaging in regular military exchanges and the Balikatan Exercise, which helped develop the interoperability necessary for mutual military mobilization, were not only good for countering global terrorism, but also served as a hedge against the challenge posed by China’s growing assertiveness in the Asia-​Pacific region (De Castro 2009; Park 2011, 274). However, even given the revitalization of US–​Philippines security cooperation, the Arroyo administration simultaneously endeavoured to establish a closer economic relationship with China, aiming to promote exports to China and to channel Chinese capital into Philippine infrastructure development, such as telecommunications and railroads. Against this backdrop, the Arroyo administration departed from the path of previous administrations that had remained vigilant, instead shelving the sovereignty issue in favour of joint exploration and exploitation of resources in the waters around the disputed Spratly Islands. In 2004, the Arroyo administration advanced joint exploration in the SCS with China by signing an agreement that allowed the Philippine National Oil Corporation and the China National Offshore Oil Corporation to carry out joint marine seismic undertakings (JMSU) around the disputed Spratly Islands (Bower 2010). However, the prosperous China–​ Philippines relationship soon came to an end as the Arroyo administration came under strong criticism for corruption and for selling the country out to China. The JMSU was regarded as an unconstitutional act that undermined Philippine sovereignty over maritime features and associated resources, and President Arroyo was reportedly involved in the ZTE–​NBN scandal at the time (ABS-​CBN News 2011). Domestic political crises forced the Arroyo administration to fight for survival, prompting it to change course on the JMSU, which it allowed to expire after the initial three-​year period of cooperation ended. On 10 March 2009, the Philippines passed the 2009 Baseline Law (Republic Act No. 9522)  to redefine the archipelagic baselines of the Philippines and bring them in line with UNCLOS provisions pertaining to archipelagic states (The Republic of the Philippines 2009). This domestic legislative act strengthened the legal basis for Philippine sovereignty claims over the Spratly Islands, Scarborough Shoal, and other maritime features within the Philippines’ 200-​nautical-​mile EEZ. The Arroyo administration’s policy change in effect hampered the advance of China’s influence in the Philippines, driving China to return to its hard-​line SCS policy reliant on naval might and coercive diplomacy. After

The Philippine hedging strategy  103 reaching its zenith with the signing of the JMSU, the China–​Philippines relationship started to decline. The relationship between Manila and Beijing soon deteriorated over the SCS dispute under the Benigno Aquino III administration that came into power in June 2010. A skirmish at Reed Bank in March 2011 in which Chinese patrol boats harassed a seismic survey vessel operating in Philippine-​claimed waters underscored China’s continuing brinkmanship policy and incited the Aquino III administration to shift the Philippine SCS policy to a harder stance than that of its predecessors. This new tack precipitated the modernizing of the Armed Forces of the Philippines (AFP) and led to an increased AFP presence in the SCS, as well as the strengthening of defence ties with the US and Japan, and a series of legal and diplomatic actions to defend Philippine-​claimed maritime features and associated rights. In April 2011, the Philippines sent a note verbale to the UN Commission on the Limits of the Continental Shelf (CLCS 2011), following on the heels of the joint submission by Malaysia and Vietnam in 2009 on the outer limits of the continental shelf, to clarify the limits of their EEZ and continental shelf claims (CLCS 2009a, 2009b). Additionally, Indonesia’s note verbale in 2010 stated that “those remote and very small features in the South China Sea do not deserve exclusive economic zone or continental shelf of their own” (CLCS 2010). Shortly after the submission of the note verbale, Manila proposed its own draft of an SCS COC at the 44th AMM in July 2011, advocating the transformation of the SCS into “a zone of peace, freedom, friendship and cooperation” (ZoPFFC), intended to segregate the disputed SCS maritime areas from non-​disputed areas and promote joint development in the disputed areas under a joint management committee (ASEAN 2011; Department of Foreign Affairs of the Philippines 2011). The Philippines’ prescription for the SCS dispute was soon followed by the Manila Declaration, signed between Manila and Washington in November 2011 to reaffirm their mutual defence relationship and to call for multilateral talks to resolve maritime disputes in the region, just as the Obama administration was engaged in the “Rebalancing to Asia”. The Aquino III administration gained the manifest support of the US in counteracting China in the SCS. However, the 2012 Scarborough Shoal standoff demonstrated that the Philippines alone was not capable of defending its sovereignty when faced with China’s superior naval power. The incident consequently prompted Manila to lodge a formal objection via the international arbitration procedure against China’s SCS sovereignty claims, and further accelerated US involvement in the region in support of freedom of navigation and regional security stability. On 22 January 2013, Manila filed an arbitration application with the PCA at The Hague, followed by the submission of a memorial on 30 March 2014, sparking legal and political friction between Manila and Beijing. In the end, the final result of the SCS arbitration handed down on 12 July 2016 dismissed

104  Chih-Mao Tang China’s SCS sovereignty claims that China had based on the 9-​dash line and historical rights (Permanent Court of Arbitration 2016). That is, even though China has explicitly disclaimed the arbitration results, China, as a party to UNCLOS, was portrayed as a violator of the international legal system, forcing Beijing to mitigate the negative impact of the result by doubling down on its international propaganda and increasing bilateral and multilateral diplomatic activities with Southeast Asian states. In other words, the arbitration result provided the Philippines the normative high ground that has garnered the Philippines enhanced domestic and international legitimacy for its call for international involvement in the SCS dispute. Other states, such as the US and Japan, were also given a reason to help defend the Philippines’ SCS claims. Strategically speaking, the arbitration drew China into a conflict on two fronts, military and legal, which has the potential to extend the Philippines’ bargaining space concerning the SCS issue and other related matters, such as investment and trade. Along with bringing the international legal system into play, the Aquino III administration also continued improving the Philippines’ security capabilities by elevating defence ties with the US and Japan. The most important advance of US–​Philippines defence cooperation under Aquino III was the Enhanced Defense Cooperation Agreement (EDCA), signed in April 2014, which was affirmed by the Philippine Supreme Court to be constitutional in January 2016. The EDCA aims to consolidate and extend the VFA by allowing for a greater presence of US military forces, ships, aircraft, and equipment in the Philippines on a non-​permanent basis, and greater access for US forces to Philippine military bases (Lum and Dolven 2014, 15–​16). Before the end of Aquino III’s presidency, the Philippine Navy held joint patrols with the US Navy in the SCS (BBC News 2016). As Manila and Washington strengthened security cooperation, Manila also sought to upgrade defence ties with Tokyo. Since 2011, Japan had been a strategic partner of the Philippines, and their defence relationship had grown significantly over the preceding few years (Ministry of Foreign Affairs of Japan 2011). In April 2015, the Japan Ground Self-​Defense Force joined the extended US–​Philippines Balikatan Exercise, and President Aquino III’s state visit to Japan in June 2015 was also viewed as a major step forward in Japan–​Philippines ties. During the state visit, the two sides began discussing a new pact that would allow Japanese forces access to Philippine military bases. The visit ultimately culminated in an agreement to strengthen the two states’ strategic partnership and to begin negotiations on an accord for the transfer of defence equipment and technology that was signed in March 2016. Taken as a whole, these developments in Japan–​Philippines security cooperation demonstrated the two states’ aim to bolster security cooperation to deter China’s increasing assertiveness in the SCS (Department of Foreign Affairs of the Philippines 2015). Soon after the state visit by Aquino III to Japan in late June 2015, a joint military drill between the Philippines and Japan was carried out in the SCS.

The Philippine hedging strategy  105 The reorientation of the Philippines’ SCS policy during the Aquino III administration demonstrates that Manila is aware that China’s fortification and militarization of Chinese-​occupied islets and reefs is irreversible, and that it has made Chinese power projection in the SCS a real and formidable issue. Therefore, as a weaker state, the Philippines has to bring in external backing to be able to hedge against China. In this regard, the significance of the SCS arbitration award lies not in halting or rolling back China’s expanding control over the SCS, but rather in providing Manila with the justification to adopt a more assertive SCS policy and intensify defence cooperation with the US and Japan. In other words, the SCS arbitration award serves as a means for Manila to adjust the dynamics of the SCS dispute and regain lost ground in bargaining over the SCS issue, even while military asymmetry between the Philippines and China has increased. Although the Philippines’ stunted relationship with China seems to limit the Aquino III administration’s space to implement a hedging policy against China, it in effect leaves a necessary space for the Rodrigo Duterte administration to reboot hedging against China. From June 2016 to the present While the SCS arbitration award overwhelmingly favoured the Philippines, the Duterte administration chose to respond to it in an affirmative but restrained manner (Department of Foreign Affairs of the Philippines 2016), while also signalling a willingness to continue bilateral talks with China over the SCS issue.2 This moderate response revealed that the Duterte administration realized that the Philippine victory in the SCS arbitration case will not substantially benefit the Philippines in its dispute with China as long as the award is not enforced (Yasay 2016; Presidential Comunications Operations Office 2016a). Unless China returns to the negotiation table, the SCS arbitration award is nothing more than a piece of paper. In addition, the Philippines’ economic development still needs Chinese investment and trade. As such, while the Duterte administration has stressed a rules-​based approach, with the arbitration ruling serving as the basis for bilateral talks to resolve the SCS dispute, and has affirmed that it will not surrender Philippine-​claimed territory in the SCS, it has also indicated that it seeks to rebuild mutual trust and restore ties with China by shifting away from the Aquino III administration’s strategy of confrontation (Presidential Comunications Operations Office 2016b). The Philippine realignment with China began to materialize during Duterte’s first state visit to China in October 2016, when Manila set aside both the SCS arbitration award and US–​Philippines relations in favour of discussing economic matters and bilateral communication over the SCS issue (Presidential Comunications Operations Office 2016c; Presidential Comunications Operations Office 2016d). The Duterte administration’s relationship with its US ally cooled as the Philippines suspended the navy’s participation in joint naval exercises and patrols with the US Navy in the SCS, and even threatened to end military cooperation with the US (The Guardian

106  Chih-Mao Tang 2016; The Philippine Star 2016). The latter was more than merely a response to US security policy and the Obama administration’s criticism of Duterte’s scorched-​earth drug war. It was also, in effect, a gesture aimed at China as a move to enlarge bargaining space for the Philippines’ rapprochement with China. Duterte’s visit concluded not only with a call for the effective implementation of the DOC and the materialization of a COC, but also with US$13.5 billion in investments and loans from China and an agreement with China to initiate a bilateral consultation mechanism to facilitate cooperation on the SCS issue. The agreements struck during Duterte’s state visit were later reaffirmed by Chinese Premier Li Keqiang during his official visit to the Philippines in November 2017 (Department of Foreign Affairs of the Philippines 2016; The Straits Times 2016; Ministry of Foreign Affairs of the People’s Republic of China 2017). Soon after the state visit to China in May 2017, the first meeting of the Philippines–​China Bilateral Consultative Mechanism (BCM) on the South China Sea was held in Guiyang, China, followed by a second meeting in Manila in February 2018. The Duterte administration had somehow managed to revive the Arroyo administration’s SCS policy, but in the BCM meetings, the administration continued to stress its commitment to protecting Philippine territorial claims and maritime entitlements, as well as its insistence that UNCLOS be the basis for bilateral talks between the two states (Department of Foreign Affairs of the Philippines 2017; Department of Foreign Affairs of the Philippines 2018a; Department of Foreign Affairs of the Philippines 2018b). After nearly two years of negotiation, Manila and Beijing finally agreed during a bilateral meeting, held on the sidelines of the April 2018 Boao Forum for Asia in Hainan, for China to craft a framework for joint exploration of disputed waters, which constituted an important step for the Duterte administration in proving the advantage of a softer policy toward China (Presidential Comunications Operations Office 2018a). Military contacts between the two states have also further deepened. The Duterte administration permitted Chinese military transport aircrafts to land in Davos City, the president’s hometown, for refuelling in June 2018 (Tomacruz 2018). Yet, amid warmer relations with China, the administration has still continued to stress that their improving relationship does not mean that the Philippines gives up defending its interests in the SCS. Rather, the administration has maintained that it will go to war if China unilaterally exploits natural resources in disputed waters of the SCS (South China Morning Post 2018; Presidential Comunications Operations Office 2018b). Rapprochement with China and antagonism toward the US, however, has not stopped Manila from seeking external assistance to strengthen Philippine defence capacities. The Philippines under the Duterte administration has not, in fact, strayed too far away from its traditional allies. Joint military exercises with the US, such as the annual Balikatan Exercise, have continued despite reductions in scale. Under the EDCA, the Duterte administration still allowed US troops to use and upgrade Basa Air Base, Antonio Bautista Air Base, Fort

The Philippine hedging strategy  107 Magsaysay, Lumbia Air Base, and Mactan-​Benito Ebuen Air Base. While Manila and Beijing were discussing the joint exploration agreement, the USS Theodore Roosevelt, a US aircraft carrier, docked in Manila Bay after patrolling disputed areas in the SCS in a display of military might. Subsequent to the USS Roosevelt’s Manila Bay docking, Japanese and Australian warships anchored in Subic Bay. The 2018 Balikatan Exercise was the largest of any held under the Duterte administration, as US and Philippine forces were joined by the Australian Defense Force and the Japan Self-​Defense Force. Soon afterwards, the Philippines and the US carried out a joint naval exercise with the Japanese Maritime Self-​Defense Force joining as an observer. This series of military exercises shows that the US–​Philippines security relationship has been gradually regaining ground, particularly since the Trump administration eased criticism of the Philippines’ anti-​drug war. In addition to its reliance on the US, the Duterte administration has also turned to Japan for assistance, both for economic purposes and for defence (Presidential Comunications Operations Office 2016e). In President Duterte’s 2016 visit to Japan, which occurred right after his trip to China, Manila and Tokyo signed documents covering the transfer of large patrol vessels. Additionally, they signed a letter arranging the transfer of the Japan Maritime Self-​Defense Force’s trainer aircrafts, TC-​90s, for conducting surveillance in disputed waters. Both developments were discussed further during the summit between President Duterte and Premier Abe in Manila in September 2016 (Presidential Comunications Operations Office 2016f). In September 2018, President Duterte visited Japan’s largest military ship, JS Kaga (DDH-​184), in Subic, following that ship’s participation in bilateral training with the US Navy in the SCS (Presidential Comunications Operations Office 2018c). In the meantime, the Duterte administration has successfully reconciled previously strained relations with China. The SCS arbitration award, which has equipped the Philippines with normative armour, has also provided the Duterte administration with a good opportunity to extend an olive branch to Beijing by allowing the Philippines to adroitly downplay the arbitration victory. This not only helps the Philippines avoid further undesired security developments in the SCS, in which it clearly would not have the upper hand, but also yields a useful bargaining chip for the Philippines, who can play to extract greater economic benefits from China. This is because Manila bestowed an opportunity on China to burnish its international reputation, which had been tarnished by the PCA determination that China was in violation of international law, even though China had consistently rejected PCA jurisdiction over the matter, and even though the arbitration award lacked any enforcement mechanism. For Beijing, mitigating undesired ripple effects of the SCS arbitration case has been an even more pressing concern, as the arbitration award has the potential to serve as a focal point to unify the US, Japan, and other regional states in opposition to China in the multilateral arena. For this reason, good dealings with Manila have become an important undertaking for Beijing, as

108  Chih-Mao Tang positive China–​Philippines relations help divert focus from the SCS arbitration outcome, thereby easing the pressure on regional states to address SCS issues multilaterally. Also, the path and outcome of the current rapprochement between the Philippines and China becomes an important metric by which other regional states gauge Beijing’s future attitude and behaviour in the SCS, particularly after China’s reclamation and militarization of Chinese-​ occupied SCS features is completed. Therefore, China has to respond to the Philippines’ requests more carefully and generously to dissuade regional states from opposing China in the future. As a result, Manila is enjoying a relatively advantageous environment in SCS negotiations with China, as well as in discussions with Beijing over economic issues. In the Philippines, the result of the SCS arbitration case inspired nationalists to call for a stronger stance in protecting sovereignty and associated rights in disputed waters. The rise of nationalist sentiment potentially restrains the Duterte administration’s softer policy toward China, while also providing the Philippines with a rationale for advancing the modernization of the AFP and for greater military cooperation with the US, Japan, and others (Jennings 2018). Additionally, it also serves as a shield to protect the administration from China’s coercive diplomacy. Furthermore, nationalists also regard joint China–​Philippines exploration of resources in disputed waters as a dangerous policy because it may put the Philippines at risk of appearing to accept China’s SCS claims, hereby causing Manila to cede legal ground, jeopardizing Philippine sovereignty claims in the SCS. However, joint development can also be used by Manila as a vehicle to realize the award granted by the PCA at the conclusion of the arbitration case, particularly given the Philippines is backed by growing military cooperation with the US and Japan. In other words, the Duterte administration now intends to formulate a relatively balanced policy to manage Philippine relations with the US and China, respectively, by cleverly implementing a hedging strategy that garners the Philippines’ policy autonomy and nudges China in a direction on the SCS issue that is favourable to Philippine national interests.

Conclusion In the Philippine strategy in the SCS, power and law are used alternately to justify and protect sovereignty claims and associated maritime rights. Power allows for the effective control and administration necessary to provide the basis in reality for Philippine sovereignty claims, lending legitimacy to them. In turn, the de facto conditions established by the exercise of power for underpinning legal claims provide a basis for the Philippines’ justification of further use of power to protect, exercise, and even extend its sovereignty in the SCS. This cycle reinforces the legitimacy of Philippine sovereignty claims. This reinforcing cycle of power and law in Philippine SCS policy was also evident during the Cold War period, when the Philippines had the strong military backing of the US under the MDT. The US military presence in the

The Philippine hedging strategy  109 Philippines helped dissuade China and the other claimants from mounting any coercive challenge, laying relatively favourable groundwork for the Philippines to legitimize and consolidate its sovereignty claims. Additionally, it allowed the Philippines to undertake related administrative and defensive activities, as well as to carry out exploration and exploitation in the SCS, while continuing to participate in the creation of UNCLOS and enacting a series of domestic laws, based on the principles of discovery, occupation, and geographical proximity, such as presidential decrees and republic acts. To put it differently, the MDT gave the Philippines the upper hand in legitimating its SCS sovereignty claims. The effectiveness of the Philippine use of law and power in dealing with the SCS issue is subject to the status of relative power between the Philippines and the other claimants. The once advantageous and stable power situation that benefitted the Philippines began waning in the wake of the Cold War because the US–​ Philippines military relationship encountered turbulence with the termination of the MDT in 1991, just as China tightened its grip over its SCS claims, employing diplomatic, economic, military, and legal means under the cover of its charm offensive. Since then, the dynamics of interactions among the Philippines, the US, and China in the SCS has undergone incremental yet critical change. With its growing economic and military might, China has gradually emerged as a formidable game-​setter, while the Philippines is being edged out in the chess match of the SCS. Being the weaker party, the Philippines seeks to mitigate this unfavourable development by adopting a dual approach aimed at deterring and managing China’s increasing assertiveness in the SCS. On the one hand, the Philippines has strengthened its national defence by revitalizing security ties with the US and advancing defence cooperation with Japan and Australia. At the same time, it has also ratcheted up international propaganda and increased its participation in international legal processes to consolidate its claim and effectively exercise sovereignty in the SCS. This increased participation culminated in the Philippines filing the SCS arbitration case with the PCA. However, even as the Philippines resorted to power and law in pursuit of its SCS claims, the Philippines maintained diplomatic engagement and negotiation with China as a safeguard against a direct clash between the two states. In doing so, it leaves open a bargaining channel to better deal with the SCS issue, as well as other interests. In the post-​Cold war period, the Ramos and Aquino III administrations took a stronger stance on the SCS issue, emphasizing national defence-​ building to protect sovereignty, whereas the Arroyo administration and the current Duterte administration adopted a softer stance, stressing the economic benefits of rapprochement with China. Nevertheless, on the whole, none of the Philippine administrations have taken a solely hard or solely soft approach toward China. They have, in essence, pragmatically implemented a hedging strategy to manage Philippine relations with China to protect Philippine sovereignty, attain economic benefits, and minimize the potential risk of conflict

110  Chih-Mao Tang in the SCS. However, in Philippine hedging in the SCS, power is the dominant concern, while law is treated as a complementary strategic tool. Philippine leaders have clearly understood that the enforcement of international law requires power. Without enforcement, international legal outcomes, such as the SCS arbitration award, can hardly reverse China’s construction of installations on Chinese-​occupied islands, reefs, and rocks in the SCS. They can, however, serve to provide a normative basis to justify what the Philippines has done, and what it is preparing to do, to protect its sovereignty in the SCS, and to undermine China’s international reputation and the legitimacy of Chinese activities in the SCS. The Aquino III administration understood this reality, and the Duterte administration knows it even better. All in all, in the post-​Cold War period, the nature of Philippine SCS policy has been one of hedging, a policy in which material power is always at the core, but for which law serves as a normative shield, or even a generator of normative power that may exert critical influence on the battlefield.

Notes 1 In the 1898 Treaty of Paris, Spain ceded the Philippines to the US, and the 1900 Treaty of Washington clarified that Spain relinquished to the US any and all islands belonging to the Philippines archipelago, lying outside the lines described in Article III of the 1898 Treaty of Paris. 2 Manila sent former President Fidel Ramos as a special envoy to hold talks with his Chinese counterpart in Hong Kong (Manila Times 2016).

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The Philippine hedging strategy  113 Presidential Communications Operations Office. 2016a. “Sept. 05, 2016 –​Speech of President Rodrigo Roa Duterte during the Inauguration of the Davao International Container Terminal (DICT).” Presidential Communications Operations Office. https://​pcoo.gov.ph/​sept-​05-​2016-​speech-​of-​president-​rodrigo-​roa-​duterte-​during-​ the-​inauguration-​of-​the-​davao-​international-​container-​terminal-​dict/​. Presidential Communications Operations Office. 2016b. “Sept. 10, 2016 –​Speech of President Rodrigo Roa Duterte during His Arrival from His Participation at the 28th and 29th ASEAN Summits in Laos and Visit to Indonesia.” Presidential Communications Operations Office. https://​pcoo.gov.ph/​sept-​10-​2016-​speech-​of-​ president-​rodrigo-​roa-​duterte-​during-​his-​arrival-​from-​his-​participation-​at-​the-​ 28th-​and-​29th-​asean-​summits-​in-​laos-​and-​visit-​to-​indonesia/​. Presidential Communications Operations Office. 2016c. “Oct. 19, 2016 -​Press Conference of President Rodrigo Roa Duterte with the Foreign Correspondents.” Presidential Communications Operations Office. https://​pcoo.gov.ph/​oct-​19-​ 2016-​ p ress-​ c onference-​ o f-​ p resident-​ rodrigo-​ roa-​ d uterte-​ w ith-​ t he-​ foreign-​ correspondents/​. Presidential Communications Operations Office. 2016d. “Oct. 20, 2016  –​Speech of President Rodrigo Roa Duterte during the Philippines-​China Trade and Investment Forum.” Presidential Communications Operations Office. https://​pcoo.gov.ph/​oct-​ 20-​2016-​speech-​of-​president-​rodrigo-​roa-​duterte-​during-​the-​philippines-​china-​ trade-​and-​investment-​forum/​. Presidential Communications Operations Office. 2016e. “Oct. 25, 2016  –​Speech and Press Conference of President Rodrigo Roa Duterte during the Departure Ceremony for a Three-​Day Working Visit to Japan.” Presidential Communications Operations Office. https://​pcoo.gov.ph/​oct-​25-​2016-​speech-​and-​press-​conference-​ of-​president-​rodrigo-​roa-​duterte-​during-​the-​departure-​ceremony-​for-​a-​three-​day-​ working-​visit-​to-​japan/​. Presidential Communications Operations Office. 2016f. “Oct. 26, 2016  –​Joint Statement of Japanese Prime Minister Shinzo Abe and Philippine President Rodrigo Roa Duterte.” Presidential Communications Operations Office. https://​ pcoo.gov.ph/​oct-​26-​2016-​joint-​statement-​of-​japanese-​prime-​minister-​shinzo-​abe-​ and-​philippine-​president-​rodrigo-​roa-​duterte/​. Presidential Communications Operations Office. 2018a. “Press Briefing of Presidential Spokesperson Harry Roque with Presidential Communications Operations Office Secretary Martin Andanar and Department of Foreign Affairs Secretary Alan Peter Cayetano.” Presidential Communications Operations Office. https://​pcoo. gov.ph/​press-​briefing/​press-​briefing-​of-​presidential-​spokesperson-​secretary-​harry-​ roque-​with-​presidential-​communications-​operations-​office-​secretary-​martin-​ andanar-​and-​department-​of-​foreign-​affairs-​secretary-​alan-​peter-​cay/​. Presidential Communications Operations Office. 2018b. “State of the Nation Address of Rodrigo Roa Duterte President of the Philippines to the Congress of the Philippines  –​Presidential Communications Operations Office.” Presidential Communications Operations Office. https://​pcoo.gov.ph/​presidential-​speech/​state-​ of-​the-​nation-​address-​of-​rodrigo-​roa-​duterte-​president-​of-​the-​philippines-​to-​the-​ congress-​of-​the-​philippines/​. Presidential Communications Operations Office. 2018c. “President Duterte Visits Japan’s Largest Military Ship in Subic.” Presidential Communications Operations Office. https://​pcoo.gov.ph/​news_​releases/​president-​duterte-​visits-​japans-​largest-​ military-​ship-​in-​subic/​.

114  Chih-Mao Tang Ramos, Fidel. 1992. “Speech of President Ramos at the Subic Turnover Ceremony, November 24, 1992.” Official Gazette, 24 November. www.officialgazette.gov.ph/​ 1992/​11/​24/​speech-​of-​president-​ramos-​at-​the-​subic-​turnover-​ceremony-​november-​ 24–​1992/​. Reus-​Smit, Christian. 2004. “The Politics of International Law.” In The Politics of International Law, edited by Christian Reus-​Smit, 14–​44. Cambridge: Cambridge University Press. Roy, Denny. 2005. “Southeast Asia and China:  Balancing or Bandwagoning?” Contemporary Southeast Asia 27 (2): 305–​322. Snyder, Glenn. 1984. “The Security Dilemma in Alliance Politics.” World Politics 36 (4): 461–​495. South China Morning Post. 2018. “Philippine President Rodrigo Duterte Will Go to War with China If It Crosses ‘Red Lines’ and Claims Disputed Resources, Foreign Ministry Warns.” South China Morning Post, 29 May. www.scmp.com/​news/​china/​diplomacy-​ defence/​article/​2148204/​philippines-​rodrigo-​duterte-​will-​go-​war-​china-​if-​it. Storey, Ian. 1999. “Creeping Assertiveness:  China, the Philippines and the South China Sea Dispute.” Contemporary Southeast Asia 21 (1): 95–​118. The Guardian. 2016. “Philippines to Suspend Joint Exercises and Patrols with US Military.” The Guardian, 7 October. www.theguardian.com/​world/​2016/​oct/​07/​ philippines-​suspend-​joint-​exercises-​duterte-​anti-​us-​rhetoric. The Philippine Star. 2016. “Duterte: 2016 Philippines-​US Balikatan to Be the Last.” The Philippine Star, 30 September. www.philstar.com/​headlines/​2016/​09/​30/​1628875/​ duterte-​2016-​philippines-​us-​balikatan-​be-​last. The Republic of the Philippines. 1949. Republic Act No. 387. http://​laws.chanrobles. com/​republicacts/​4_​republicacts.php?id=390. The Republic of the Philippines. 1961. Republic Act No. 3046. www.lawphil.net/​ statutes/​repacts/​ra1961/​ra_​3046_​1961.html. The Republic of the Philippines. 1968a. Proclamation No. 370. www.officialgazette. gov.ph/​1968/​03/​20/​proclamation-​no-​370-​s-​1968/​. The Republic of the Philippines. 1968b. Republic Act No. 5446. www.lawphil.net/​ statutes/​repacts/​ra1968/​ra_​5446_​1968.html. The Republic of the Philippines. 1973. 1973 Constitution of the Republic of the Philippines. https://​lawphil.net/​consti/​cons1973.html. The Republic of the Philippines. 1978. Presidential Decree No. 1596. www. officialgazette.gov.ph/​1978/​06/​11/​presidential-​decree-​no-​1596-​s-​1978/​. The Republic of the Philippines. 1988. Presidential Decree No. 1599. www.lawphil.net/​ statutes/​presdecs/​pd1978/​pd_​1599_​1978.html. The Republic of the Philippines. 2009. Republic Act No. 9522. www.lawphil.net/​ statutes/​repacts/​ra2009/​ra_​9522_​2009.html. The Straits Times. 2016. “Duterte in China: Deals Worth $19b Clinched, 1m Jobs to Be Created.” The Straits Times, 20 October. www.straitstimes.com/​asia/​east-​asia/​ duterte-​in-​china-​deals-​worth-​19b-​clinched-​1m-​jobs-​to-​be-​created. Tomacruz, Sofia. 2018. “Bong Go Confirms China Government Plane Landed in Philippines.” Rappler, 10 June. www.rappler.com/​nation/​204573-​bong-​gochina-​military-​plane-​cleared-​landing-​davao-​city-​airport. Walt, Stephen. 1985. “Alliance Formation and the Balance of World Power.” International Security 9 (4): 3–​43. Waltz, Kenneth. 1979. Theory of International Politics. Reading, MA: Addison-​Wesley.

The Philippine hedging strategy  115 Weitsman, Patricia A. 2004. Dangerous Alliances:  Proponents of Peace, Weapons of War. Stanford: Stanford University Press. Wu, Shicun. 2013. Solving Disputes for Regional Cooperation and Development in the South China Sea. Oxford: Chandos Publishing. Yasay, Perfecto. 2016. “Praying for Success in the President’s China Visit.” Department of Foreign Affairs of the Philippines. www.dfa.gov.ph/​dfa-​news/​news-​ from-​our-​foreign-​service-​postsupdate/​10695-​statement-​of-​secretary-​perfecto-​ryasay-​jr-​on-​the-​president-​s-​china-​visit.

5  Japan, China and the territorial disputes in the China Seas The uncertain dynamics of Asian-​Pacific geopolitics Elena Atanassova-​Cornelis

Introduction Over the past six years, regional tensions over disputed territories in the East China Sea (ECS) and the South China Sea (SCS) have progressively increased. There have been numerous incidents between the People’s Republic of China (PRC) and the various claimants, involving their civilian vessels and aircraft, but also some stand-​offs between the armed forces of the regional players. China and Japan have each sought to bolster their territorial claims over the Senkaku/​Diaoyu islands by increasingly relying on military sources of power. Similarly, in the SCS, Southeast Asian claimants have responded to the PRC’s maritime advances with growing defence budgets and naval build up. The US, too, starting under the Barack Obama administration (2009–​2016) and continuing under the current Donald J.  Trump administration (2017–​present) has noticeably increased its involvement in the maritime territorial disputes in the China Seas. These developments have led to growing concerns in the Asia-​Pacific region and globally about a potential armed conflict, especially between the region’s two largest economies, China and Japan. The objective of this chapter is to explore the geopolitical dynamics of Sino–​ Japanese relations with reference to the China Seas disputes. The chapter does not conceptualize the territorial disputes, especially in the ECS, as a driver of the competitive dynamics between Tokyo and Beijing. Rather, it argues that the maritime tensions are a manifestation of Japan’s and China’s wider concerns about the shifting geopolitical environment in the Asia-​Pacific. Strategic uncertainties about the continuity of US regional engagements, together with mutual anxieties associated with each other’s strategic objectives in the Asia-​Pacific, underpin the hardening positions of China and Japan in the China Seas. While uncertainties do account for a certain degree of Sino–​Japanese rivalry at the regional level, they also breed restraint and act as a bulwark against escalation of tensions. The following sections examine, first, the sources of Chinese and Japanese respective strategic uncertainties in the Asia-​Pacific. This is followed by an analysis of the variations in their responses to uncertainties with reference to

Territorial disputes in the China Seas  117 the disputes in the China Seas. Before concluding, the chapter explores the geopolitics of Sino–​Japanese interactions at the bilateral and regional levels in Asia.

Strategic uncertainties and the China Seas disputes Sources of Chinese uncertainties PRC leaders have for many years perceived the US to be the power that could pose the greatest threat to Chinese interests and regional ambitions, thus struggling with uncertainties about the objectives of America’s China policy and the course of Sino–​US relations. Relative power considerations vis-​à-​vis the US have clearly informed Beijing’s strategic thinking. For many Chinese analysts the US is simply seeking to preserve and consolidate the US-​led hegemonic order in Asia: America is seen as engaging the PRC to foster a political change towards democracy in the country, and to contain it by hindering China’s reunification with Taiwan and strengthening its alliance with Japan (Li 2009). Obama’s policy of ‘rebalance’, and now Trump’s lack of clarity regarding Washington’s Asia-​Pacific strategy and China policy (Huxley and Schreer 2017) have reinforced Beijing’s long-​standing mistrust towards the US. During Obama’s terms in office, some Chinese observers focused primarily on the military dimension of the rebalance, notably, US deployments and military capabilities, and promoted the narrative of a perceived ‘strategic encirclement’ of the PRC (Saunders 2013). According to this line of thinking, the US was pursuing a deliberate strategy aimed at preventing the rise of a potential challenger to its leadership in the region. Obama’s policies of cementing the American alliances in Northeast Asia, especially with Japan under Prime Minister Abe Shinzo, as well as enhancing US involvement in Southeast Asia, notably in the SCS disputes, were seen in this light. As stated in a commentary in the People’s Daily, ‘the US verbally denies it is containing China’s rise, but while establishing a new security array across the Asia-​Pacific, it has invariably made China its target’ (Zeenews 2012). Although President Trump has emphasized ‘friendly’ relations with the PRC and the shared US–​China ‘historical responsibility’ for the peace and stability of the world (Al Jazeera 2017), Washington’s openly competitive rhetoric appears to be sending a different message to Beijing. Threatening the PRC with a ‘trade war’ and labelling it in the 2017 US National Security Strategy as a ‘revisionist’ strategic competitor that ‘seeks to displace the US in the Indo-​Pacific region and reorder the region in its favour’ through ‘a rapid military modernization campaign’ are cases in point (The White House 2017). PRC’s unresolved maritime territorial disputes intensify its US-​related uncertainties. Over the past three years, China has dramatically accelerated its land reclamation activities in the SCS. Tensions have grown between the PRC and Vietnam, and with the Philippines, although under President Rodrigo Duterte, Manila has sought to deemphasize the territorial dispute in return

118  Elena Atanassova-Cornelis for economic deals with Beijing. Initiated by the Obama administration in 2015 and continued under Trump, the US has been conducting Freedom of Navigation Operations (FONOPs) by sending US military aircraft and ships to operate in the vicinity of China-​controlled geographical features in the SCS. Beijing portrays Washington’s involvement in the China Sea disputes, for example, through its joint military drills with coastal states and FONOPs, as a source of regional tensions and militarization of the area (Koda 2016). Chinese leaders have also grown increasingly suspicious about the intentions of its Asian neighbours. Beijing has been openly critical of its neighbouring countries for taking ‘provocative actions and reinforcing their military presence on China’s reefs and islands that they have illegally occupied’ (Ministry of National Defense, The People’s Republic of China 2015). The PRC’s neighbours are said to be taking advantage of the US involvement to press their territorial claims (Wu 2012). In particular, China is concerned that some ‘individual countries’ involved in the SCS disputes, notably the Philippines and Vietnam, ‘are taking hostage the China–​ASEAN relationship’ with the support of the US (Asahi Shimbun 2015). Over the past seven years, ASEAN has grown increasingly divided due to the SCS disputes, with some of its members seemingly tilting towards the US and Japan. Beijing fears that this may affect the organization’s traditional policy of non-​alignment, thereby undermining ASEAN’s centrality in regional multilateralism. The net result could be a strengthening of the US-​led bilateral arrangements in the Asia-​ Pacific (under Trump), or a more dominant Japanese role in defining ASEAN agendas under Abe. This, in turn, would lead to a deterioration of China’s strategic environment and its regional position. The Philippines’ chairmanship of ASEAN in 2017 and America’s turn away from multilateralism under Trump may be providing China with an opportunity to step in and expand its regional influence. While Chinese worries about a deterioration of China’s relations with ASEAN are more recent, uncertainties about the US–​Japan alliance’s objectives are long standing (although in the past they were primarily associated with a Taiwan conflict). PRC’s military observers point out that the ESC islands have a major geostrategic significance to the PRC. If they are owned by Japan, the US–​Japan alliance will be able to block Chinese naval vessels in the ECS and ‘squeeze’ China’s strategic space by restricting its access to the Western Pacific (Taiwan News 2012). The strengthening of the US–​Japan alliance is interpreted by some Chinese observers as a direct response to the PRC’s growing naval strength. They see the alliance as attempting to constrain, if not openly to contain, Chinese power in (maritime) Asia. According to the Chinese political discourse, Japan is instrumentalizing the Diaoyu dispute, together with the other unresolved bilateral historical issues, to ‘normalize’ and reinforce its defence posture and military ties with the US (Drifte 2014). Tokyo’s security aspirations, especially under the Abe administration, are also said to be encouraged by Washington. In the medium to long term, however, Beijing is worried that a possible US retreat would lead to Japan’s

Territorial disputes in the China Seas  119 emergence as an autonomous defence actor. Tokyo then might attempt anti-​ China coalition building in the Asia-​Pacific by wooing SCS claimant and non-​claimant states, such as Vietnam, the Philippines, and Indonesia. At the same time, as observed by Saunders (2013), there is another strand of thinking among Chinese elites and observers –​those who doubt the US ability to maintain its regional leadership in the long term –​that suggests it is unnecessary for China to confront a ‘declining power’. Reflective of this line of thinking was the statement by President Xi Jinping at the 2014 Conference on Interaction and Confidence-​Building Measures in Asia (CICA). Xi presented an alternative vision (to the US-​led security system) for Asia’s security order, one in which, as Xi stressed, ‘Asia’s security should rely on Asians’ (China Daily 2014). This was an unequivocal message for Washington not to meddle in Asian affairs and an indicator of a growing competition with the US for regional influence. A stronger China under Xi Jinping, seeking a global leadership role by 2050, is increasingly more self-​confident in dealing with the US and Japan. Indeed, China now appears to be testing Washington’s security commitments in Asia, which runs contrary to its previous policies of conflict avoidance. Especially in the wake of the 2008 financial crisis, there was a growing perception among Chinese leaders of the PRC’s rapidly increasing relative power and of the corresponding American decline (Yahuda 2013). A  China that once shied away from openly confronting America in Asia has become more vocal in objecting, for example, to US military exercises with allies and to US intelligence-​gathering activities in the PRC’s Exclusive Economic Zone (EEZ). The PRC has also focused on displaying its growing naval power through military drills by the People’s Liberation Army (PLA) in the SCS, and has stepped up the dispatch of patrolling vessels to disputed waters in the China Seas. Beginning in 2016 there were revelations of Chinese missile deployments on the Paracels and of high-​frequency radar installations on the Spratlys, allegedly for the purpose of monitoring surface and air traffic in the area. All in all, China believes that the ongoing power shift in the Asia-​Pacific is tilting in its favour. Although it expects that, in the long term, the US will gradually reduce its regional presence (or withdraw from the region altogether), it realizes that this is unlikely to happen in the coming decade or so. Indeed, despite regional concerns about US disengagement under Donald Trump, at the time of this writing (autumn 2020), the US administration has all but reassured its closest allies, including notably Japan, of America’s continuing security involvement in the Asia-​Pacific. Sources of Japanese uncertainties1 Japan’s strategic uncertainties stem primarily from its position as a ‘junior partner’ in the US–​Japan alliance. Related to this are Tokyo’s growing concerns about Chinese military power and its implications for the regional power

120  Elena Atanassova-Cornelis balance, especially for America’s Asia-​Pacific involvement. A future shift in US–​China relations, amid Washington’s possible strategic accommodation of Beijing on issues, such as Taiwan or the China Seas territorial disputes, also dominates the thinking of Japanese strategists. To be sure, Tokyo’s concerns about the US security commitments in the region are not new. There are two fundamental dimensions to these uncertainties: the first concerns the sustainability of America’s Asian-​Pacific engagement, while the second is related to US–​China relations (Atanassova-​Cornelis and Van der Putten 2015). Japan, due to its position as the more dependent partner in the bilateral alliance, has had long-​standing anxieties about ‘abandonment’ amid possible US disengagement from Asia (Ashizawa 2014). The 2008 financial crisis intensified Japan’s worries about the sustainability of the US military commitments due to the growing fiscal and economic constraints in the US, especially cuts in America’s defence spending. The strategic ‘rebalance’ of the Obama administration, officially announced in early 2012, was not able to sufficiently reassure Japan, and Tokyo’s concerns about Washington’s ability to fund the rebalance remained until the end of Obama’s second term in office.2 Many Japanese strategists have openly doubted America’s ability and willingness to sustain its medium-​to long-​term security involvement in the region (Wallace 2013). Specifically, Tokyo’s acknowledgment of Washington’s commitment to the alliance has not eliminated its worries that the US might be reluctant to engage in a conflict ‘that does not directly threaten’ American interests (Tatsumi and Wan 2015), for example, over the Senkaku Islands. The rise of Chinese power, and the implications this has for the US security commitments to Japan and, more broadly, to the Asia-​ Pacific, reinforce Tokyo’s anxieties. Indeed, while Japan (similarly to other Asian states) relies on the US for security protection against the prospect of a more hostile China, it is economically dependent on the PRC and, thus, vulnerable to the uncertainties of great-​power politics, as well as to Chinese (economic) coercion. A reduction in US regional engagements could presumably be an outcome of US isolationist policies  –​a scenario that has become more salient under President Trump’s ‘America First’ doctrine. Although American retreat from the region is unlikely in the short to medium term, in the long term Washington’s decision to accommodate Beijing remains a distinct possibility. For now, Japanese worries include a possible US decision not to intervene in a Senkaku contingency on Japan’s behalf. America may decide this either for fear of negative repercussions for US–​China relations or because of the high costs that such an involvement might entail in confronting the PRC’s ‘anti-​ access, area-​denial’ (A2/​AD) capabilities (Hughes 2016). If Washington and Beijing reached a tacit understanding to avoid military hostilities in the ECS by instead treating Japan ‘as a shared problem’, this would represent a ‘nightmare scenario’ for Tokyo (Ayson and Ball 2014, 156). Japan’s long-​standing concerns about US abandonment would then become a reality. The lack of strategic vision in Trump’s Asia-​Pacific policy has persisted since he assumed office, thereby reinforcing Japan’s abandonment concerns.

Territorial disputes in the China Seas  121 The Trump administration pulled the US out of the Trans-​Pacific Partnership (TPP) agreement in early 2017, while Washington’s China policy has been unclear. Tokyo now fears possible shifts in US–​China relations not only due to the changing distribution of power in the PRC’s favour, but also due to possibilities of some kind of a US–​China (trade) bargain under Trump. At the same time, Japanese strategists have recognized that the alliance with Japan has remained a main pillar of America’s continuing regional involvement. The Obama administration’s reaffirmation, on numerous occasions, of America’s treaty commitments to Japan was a manifestation of the continuing value the US attached to its alliance with Japan. Similarly, the Trump administration has sought to reassure Japan that ‘Article 5 . . . is understood to be as real to us today as it was a year ago, five years ago –​and as it will be a year, and 10 years, from now’ (Asahi Shimbun 2017). At the meeting with Abe in February 2017 the American president reiterated a long-​standing US position that the US was ‘committed to the security of Japan and all areas under its administrative control’, including notably the Senkakus (Motoko 2017). These developments may have eased somewhat Japan’s initial uncertainties about the new US administration, although Tokyo’s abandonment concerns do remain. Japan’s China-​associated uncertainties include long-​term worries about the PRC’s future strategic intentions and how it will use its growing military power, and more specific short-​to medium-​term anxieties about Chinese maritime security objectives in the region (Atanassova-​Cornelis and Van der Putten 2015). These anxieties have grown in response to the PRC’s perceived assertiveness since 2010 in pursuing its territorial claims in the China Seas. Worries about the sustainability of the US security engagement arguably exacerbate Japan’s China-​associated uncertainties. Japan’s concerns about the PRC’s strategic intentions in Asia have progressively increased since the early 2000s. A  perceived lack of transparency on the PRC’s national defence, as well as the double-​digit growth of its defence spending in the post-​Cold War period have driven the ‘China threat’ perception in Japan. As the tensions over the disputed Senkaku Islands have escalated since 2010, Japan’s wariness of its neighbour has become especially pronounced. For example, the 2013 strategy documents of the Abe administration, namely the National Security Strategy (NSS) and the National Defense Program Guidelines (NDPG), described the PRC’s security behaviour, especially China’s military modernization, and its intensified activities in the seas and airspace around Japan, as an ‘issue of concern for the international community, including Japan’ (Prime Minister of Japan and His Cabinet 2013a; Prime Minister of Japan and His Cabinet 2013b). Japanese uncertainties about the PRC’s growing military power are primarily related to China’s expanding naval and air military capabilities. In particular, the missiles aimed at Taiwan are multifunctional and hence can target Okinawa or be used in a Senkaku contingency. As the Chinese navy is developing capabilities to control the ‘near seas’ (within the ‘first island

122  Elena Atanassova-Cornelis chain’), its A2/​AD strategy has led to worries in Tokyo that the ultimate objective of the PRC’s military modernization is China’s future domination of maritime East Asia (Atanassova-​Cornelis, Pacheco, and Pejsova 2015). In the short term, Japanese strategists worry that China’s A2/​AD strategy would deny the US access to the western Pacific and hence a possible intervention in an ECS contingency to assist Japan. This, in turn, could lead to Japan’s loss of control of these territories. Additionally, the sea lanes of communication (SLOCs) crossing the ECS are crucial to Japan’s trade and energy imports. Should the PRC acquire control of this maritime space, it would be able to block Japan’s strategically critical trade routes that, in turn, could have potentially devastating economic (and security) implications for this island nation. All in all, Tokyo’s China-​related concerns in the short term include the perceived PRC’s ‘attempts to unilaterally change the status quo’ in the ECS (Ministry of Foreign Affairs, Japan 2016, 24), disregarding international law and infringing upon the freedom of navigation, and China’s intrusion into what Japan considers the territorial waters and airspace of the Senkakus. These short-​ term worries have grown concurrently with Japan’s wider, medium-​to long-​term geopolitical anxieties about the PRC’s future regional hegemony. The latter are driven by China’s alleged ‘plans to further expand the sphere of its maritime activities’ into the Pacific Ocean and its objectives of SLOCs defence (Ministry of Defense, Japan 2015a, 47–​48). This alludes to Tokyo’s anxieties about the PRC’s possible control of trade routes and maritime domination in the SCS and beyond. Indeed, the PRC’s 2015 ‘White Paper on Defense’ suggested that China’s military build-​up was part of a broader strategy that reflected China’s growing maritime security ambitions. The document pointed out that China’s naval strategy would shift from ‘offshore waters defence’ to combined ‘offshore waters defence with open seas protection’ (Ministry of National Defense, The People’s Republic of China 2015). For Japan, this latest strategy paper indicated the PRC’s intention of expanding its maritime sphere of influence. At the same time, Beijing’s stepped-​up construction and militarization activities on islands and reefs in the SCS, and the perceived US inability to restrain this Chinese behaviour, have meant that, for Tokyo, its uncertainties about the PRC’s strategic intentions have now been magnified by uncertainties about America’s ability (and increasingly its willingness) to maintain a rule-​based maritime order in the Asia-​Pacific.

Variations in responses to strategic uncertainties Chinese responses The PRC has responded to its US-​associated strategic uncertainties in two main ways: by strengthening its military power to deter the US (and Japan) and by trying to indirectly undermine America’s regional influence. The latter

Territorial disputes in the China Seas  123 has included leveraging Beijing’s economic power over its Asian neighbours, as well as seeking to prevent anti-​China coalition building in the region (Atanassova-​Cornelis  2017). The PRC’s military modernization, notably the acquisition of military capabilities designed to minimize the risk of containment and increase Chinese freedom of action (especially at sea), has constituted a major response by Beijing to its growing uncertainties associated with the US. The PRC has moved forward with building a strong national defence and modernizing its armed forces, gradually expanding its power projection far from shore and into maritime Asia. It has focused, in particular, on the navy and the defence of the first island chain, which includes Taiwan and Beijing’s maritime territorial claims in the China Seas. For example, China has launched its first aircraft carrier, Liaoning, while its second, domestically built aircraft carrier is expected to enter service by 2020. It has developed anti-​ship ballistic missiles (BM), the Dong Feng-​16 (with a range of 1,000 km), and the Dong Feng 21D (with a range of 2,700 km). These BM missiles are reportedly capable of accurately hitting US and Japanese bases, and US carriers at sea, as well as potential targets in Taiwan and the Philippines. PRC leaders have sought to display China’s growing naval power, for example, by publicizing open-​ocean and SCS military drills. Beijing has also increased both the frequency and numbers of the dispatched patrolling vessels, as well as fishing boats, to disputed waters in the ECS and SCS to pursue its territorial claims (Koda 2016). From 1997 until 2015, China’s defence spending saw annual double-​digit growth. Despite its reduction in 2016 and 2017 to a single-​digit increase of some 7 per cent, the PRC is set to continue developing more high-​tech weapons, as well as enhancing its coastal and air defences, and maritime surveillance in the disputed areas in the China Seas and beyond. In this regard, the already mentioned 2015 White Paper on Defense of the PRC is particularly instructive. It lists the following core capabilities that the PLA is expected to develop in the coming years: ‘strategic deterrence and counterattack, maritime maneuverers, joint operations at sea … offensive and defensive operations’ (Ministry of National Defense, The People’s Republic of China 2015). Not only is the PRC intending to expand its maritime sphere of influence, it also seems to be making preparations for potential military clashes with regional rivals. Indeed, Chinese state media have reported that the PLA is stepping up its preparedness for a possible armed conflict with America if the Trump administration adopted a more tough policy to counter the PRC’s claims in the SCS (Channel News Asia 2017a). In addition to raising the costs for the US of potential confrontation, Beijing has sought to undermine, in an indirect and non-​confrontational way, Washington’s regional influence and limit its interference in regional affairs. The PRC also wants to ensure that Asian countries, especially rivals such as Japan, refrain from pursuing (collective) actions detrimental to Chinese interests. To offset the US-​and Japan-​associated security risks, China has

124  Elena Atanassova-Cornelis relied on its growing economic leverage over its Asian neighbours, including core US allies, and has strengthened and enlarged its ‘network of friends’ (Atanassova-​Cornelis  2017). The escalation of tensions over the ECS and SCS disputes since 2010 has led to a reinforcement of the US alliances and partnerships in the Asia-​ Pacific. This has undermined China’s regional reassurance strategy pursued since the 1990s. Trying to remedy this unfavourable (for the PRC) situation, Beijing has increasingly sought to employ economic and institutional instruments of foreign policy to steadily expand its political and economic clout in the Asia-​Pacific. The PRC has given particular attention to bringing benefits to the region from China’s economic growth by materializing it in concrete institutional initiatives, such as ‘One belt, one road’ (OBOR), Silk Road Fund, and the Asia Infrastructure and Investment Bank (AIIB). It has also strongly supported the negotiations for a regional multilateral FTA and Regional Comprehensive Economic Partnership (RCEP), which excludes the US. Chinese policies stand in stark contrast to the US withdrawal from the TPP in early 2017, which reflects America’s turn away from multilateralism at large under the Trump administration. As discussed earlier, one of the strategic concerns for the PRC in the medium to long term is the possibility of anti-​China coalition building in the region that may or may not include the US, but could be led by major rivals, such as Japan. To minimize this risk, the PRC appears to have shifted its regional strategy towards its Asian neighbours. Since 2010, China has increasingly replaced its past approach of comprehensive reassurance  –​ pursued towards all regional players –​with conditional reassurance in specific circumstances, which has been pursued in combination with coercion towards target countries, particularly Japan (Liu 2016). In 2010, the PRC banned exports of rare-​earth materials to Japan in response to the latter’s arrest of the captain of a Chinese fishing boat that collided with two vessels of the Japan Coast Guard in the ESC. In 2012, Beijing imposed an import restriction on bananas from the Philippines in the wake of a standoff with Manila over the Scarborough Shoal in the SCS. More recently, China has used economic retaliation against South Korea following Seoul’s decision to deploy the US anti-​missile system, Terminal High Altitude Area Defense (THAAD), set in motion in 2017. The PRC has used both economic diplomacy and sanctions in its relations with Asian states, rewarding those that submit to its interests, such as the Philippines under Duterte, and punishing those that go against them, such as Japan under Abe. This ‘reward and punish’ approach (Chang-​Liao 2016), which is based on leveraging China’s economic power to defend its interests, has been applied, in particular, in its pursuit of maritime territorial claims in the China Seas. Furthermore, through selective use of threats of economic retribution and incentives, Beijing has attempted to keep various rivals dependent on China economically, but separated from one another strategically (Friedberg 2010). This ‘divide and rule’ strategy is expected to reduce

Territorial disputes in the China Seas  125 the risk of regional (such as Japan-​led) attempts for building anti-​China alignments. The PRC realizes that the US is unlikely to disengage from the Asia-​Pacific in the short term. This means that some Asian countries will continue to seek its security protection. At the same time, Beijing does have an interest in weakening the US-​led alliance system and peeling away Washington’s allies by wooing them with economic and infrastructural incentives, such as OBOR and AIIB. In some instances, the PRC has sought to exploit cracks in bilateral relations of Asian countries with the US to pull them into its (economic) orbit and away from Washington. Cases in point are China’s overtures towards Thailand following the 2014 military coup and the Philippines under the presidency of Rodrigo Duterte since 2016. Additionally, the PRC has been developing a global network of ‘strategic’ and ‘cooperative’ partnerships with countries in Asia, Europe, and Latin America that share its concerns about US dominance or hold similar perceptions of the challenges they are facing. As informal (i.e. non-​treaty-​based) and multidimensional arrangements, they enable China to deepen its ties with countries of strategic significance to the US and thereby ‘gain favourable leverage in the US–​China relationship’ (Huang 2016), yet without directly targeting America. Together with Beijing’s new institutional initiatives, which are positioning China at the centre of Asia’s regional integration, the PRC’s ‘network of friends’ is expected to become a bulwark against possible anti-​China coalition building in the future. Japanese responses Similarly to China, Japan has responded to strategic uncertainties by employing both military and non-​ military means, and by expanding its partnerships with countries in the Asia-​Pacific. Given that the PRC sees Japan as a proxy to US hegemony, its responses, as detailed in the previous section, have largely sought to undermine US influence both regionally and globally. In Japan’s case, the focus has been narrower in geographical terms, primarily on maritime East Asia and the defence of the Senkakus, but broad in geopolitical terms, for Japan’s policies have sought to reduce the risk of Chinese coercion and domination in the wider Asia-​Pacific region. A first major response by Japan to strategic uncertainties has included the military dimension, with a particular focus on increased defence self-​reliance and maritime security in the ECS (Atanassova-​ Cornelis 2018).The main policies have included a growing defence budget, acquisition of military capabilities to deal with potential ECS contingencies, and an overall expansion of the Self-​Defense Forces (SDF) security role in terms of geographical focus and missions. The growing tensions with China over the Senkaku Islands since 2010 have prompted Tokyo to prioritise Japan’s maritime defence in the framework of the country’s overall national defence strategy. The emphasis is increasingly being placed on enhancing Japan’s own naval power and achieving ‘maritime

126  Elena Atanassova-Cornelis supremacy and air superiority’ (Prime Minister of Japan and His Cabinet 2013a, 7) to respond to potential ECS contingencies. To this end, the military spending has now seen five consecutive years of rise under the Abe administration. The coast guard budget, in particular, has been increased to cover the costs of eight new surveillance and research ships, and the addition of some 200 maritime law enforcement staff. Other expenses have included the acquisition of military hardware, such as Osprey transportation aircraft and amphibious assault vehicles, which can be used for retaking islands under foreign occupation. Increasing defence self-​ reliance has proceeded in tandem with the strengthening of Japan’s military alliance with America. For example, in 2014, the Abe Cabinet reinterpreted Article 9 of the Constitution to allow Japan to enter into collective self-​defence arrangements with the US, albeit under strict conditions. Abe’s choice of reinterpretation over amendment may partly be explained by the fact that the majority of Japanese continue to oppose Article 9 revision. Constitutional amendment is a two-​step process: it requires, first, a two-​thirds majority in both chambers of the Diet and, second, a simple majority in a national referendum. Barring a major security crisis in the Asia-​ Pacific involving Japan, the latter is very unlikely to happen in the near future. Not surprisingly, Prime Minister Abe’s latest proposal for the amendment of Article 9 is to simply add a clause to the Constitution that would legalize the SDF and ensure their constitutionality, while keeping Article 9 intact. For their part, the revised (in 2015)  ‘US–​ Japan Defense Guidelines’ removed the geographical limitations on Japan’s security missions, and envisaged enhanced operational coordination and interoperability between the two allies (Ministry of Defense, Japan 2015b). They also covered bilateral cooperation at the regional and global levels in various areas, such as partner capacity building, securing the safety of SLOCs, and maintaining ‘maritime order’, including freedom of navigation, as well as international peacekeeping and humanitarian disaster-​ relief operations (Ministry of Defense, Japan 2015b). Although not explicitly stated, the message was one of strengthened joint deterrence of China’s naval expansion in Asian waters. The emphasis on maritime security in the guidelines closely followed Japan’s ongoing geographic shift to southwestern defence, as stated in the 2013 NDPG. While this shift and, especially, Japan’s focus on the Tokyo–​Guam–​Taiwan strategic triangle is aimed at reinforcing the SDF’s surveillance of the vital sea lanes converging in this area, it also enhances Japan’s support for the US presence in the western Pacific (Patalano 2014). All in all, the strengthening of Japan’s defence capabilities and responsibilities within the alliance has served a dual purpose of keeping America engaged in Japan’s security, while also offsetting the strategic risks associated with China (Atanassova-​Cornelis 2018). A second major response to strategic uncertainties by Japan may be identified as a diversification policy (i.e. away from the US and China; Atanassova-​ Cornelis and Van der Putten 2015). This has included establishing new, and reinforcing existing, bilateral (comprehensive) strategic partnerships with

Territorial disputes in the China Seas  127 other players in the region, especially with Southeast Asian claimants in the SCS, as well as collectively with ASEAN. While the primary strategic objective for Tokyo in developing these partnerships is to reduce the risk of future Chinese domination, forging stronger ties with nations in maritime Southeast Asia also helps Japan reduce its strategic dependence on the US. Defined as a ‘strategic pivot South’, Japan’s strategic diversification in the Asia-​Pacific includes partnerships with countries in the wider Asia-​Pacific that are geographically located ‘south’ of Tokyo’s primary sphere of geostrategic interests (Wallace 2013). These bilateral engagements have included both non-​military and military components, such as diplomatic visits, high-​ level summits and defence talks, and military exchanges and exercises. Tokyo has also signed economic partnership agreements (EPAs), for example, with the Philippines, Vietnam, and Indonesia, and has increased its foreign aid provision to Southeast Asia, including Vietnam, for infrastructure projects (Wallace 2013). Japan is now an important partner for maritime capacity building of some ASEAN states, especially as they increasingly respond to China’s maritime advances in the SCS with growing defence budgets and naval buildup.3 Indeed, several countries in maritime Southeast Asia are now seeking to either expand the capabilities of their coast guards, which is the case of the Philippines and Malaysia, or to develop such maritime security organizations separate from their navies, in the case of Vietnam (since 2013) and Indonesia (since 2014). In 2013, based on Manila’s earlier request, Prime Minister Abe agreed to provide the Philippines with ten new small coast guard patrol ships financed by Japan’s foreign aid. In 2016, during a meeting with President Duterte, Abe pledged that Japan would supply the Philippines with two large patrol vessels and lend them up to five used surveillance aircraft. Vietnam, too, has already received from Japan six used patrol vessels to enhance its maritime law-​enforcement capabilities. In 2016 Hanoi requested new ones and Prime Minister Abe on a visit to Vietnam in January 2017 promised six new ships. By providing military equipment to some ASEAN states to enhance their coastal defence, Japan has pursued maritime security cooperation in the SCS (Hughes 2016). Over the past three years, Japan has expanded both the scope and the depth of its bilateral engagements with the Philippines and Vietnam, especially in the military dimension. This has included joint bilateral maritime drills, including in the SCS, agreements for the provision of defence equipment and technology to Manila (the first such agreement Japan has with a Southeast Asian nation), and in 2016 the first visit since the end of World War II of two Japanese destroyers to Cam Ranh Bay in southern Vietnam, a strategically important area facing the SCS. The last of these is an example of Tokyo’s growing interest in expanding its presence in maritime Southeast Asia. These defence engagements have been paralleled by enhanced bilateral trade and economic ties, especially as Japan is Vietnam’s second largest foreign investor after South Korea.

128  Elena Atanassova-Cornelis Japan has also sought to create a unified stance with ASEAN by jointly emphasizing the importance of the rule of law in dealing with territorial disputes in Asia and for ensuring freedom of navigation (Hughes 2016). This push for a common Japan–​ASEAN stance on maritime challenges reflects the progressive domination, over the past decade, of security concerns in Tokyo’s Asian diplomacy as a result of Japan’s growing ‘China threat’ perception (Sahashi 2016). At the same time, the cultivation of ties with the ASEAN states (both bilaterally and multilaterally) is also a way for Japan to maintain the US-​led alliance system (Sahashi 2016). According to some observers (Koda 2016, 102), Washington’s continuing regional involvement is ‘a matter of life and death’ for the smaller Asian states facing Beijing in the SCS, especially as they try to resist the PRC’s ‘divide and rule’ strategy. As a core American ally, Japan’s role in reinforcing the US Asia-​Pacific presence is said to be indispensable (Koda 2016, 102).

The China Seas disputes and Asian-​Pacific geopolitics The ESC dispute dynamics and bilateral Sino–​Japanese interactions The military aspect of China’s and Japan’s responses to strategic uncertainties has reflected the growing competitive element in Sino–​Japanese relations. The result has been a gradual militarization of the ECS dispute. Each side has sought to support its sovereignty claims, as well as hedge against the uncertainties associated with the opponent’s wider geopolitical intentions in the Asia-​Pacific, by strengthening its military power and presence around the disputed territories. As observed by Drifte, since the 2012 incident, there has been a growing number of not only policing activities in the ECS, but also actions involving the two countries’ armed forces, namely, the People’s Liberation Army Navy (PLAN) and the Maritime and Air SDF (Drifte 2014).4 As the objective of Beijing is to undermine Tokyo’s administrative control over the Senkaku/​ Diaoyu Islands and force it to acknowledge the existence of a dispute (which the Abe government currently denies), the PRC under Xi Jinping has markedly stepped up the pressure on Japan (Drifte 2014; Hook 2014). This is evidenced by the increased number of intrusions by Chinese government vessels and (military) aircraft into, what Japan considers, the territorial waters and airspace of the Senkakus. After the July 2016 international arbitration ruling on the Philippines–​China case, the PRC further increased the dispatch to the ECS of both coast guard ships and fishing boats, possibly to divert international attention from the SCS tensions (Koda 2016). The PLA Air Force has also conducted military drills in the Sea of Japan and the ECS, for example, by flying bombers and reconnaissance planes over the Miyako Strait and the Bashi Channel. Over the 12-​month period from 1 April 2016 to 31 March 2017, Japan’s ASDF scrambled fighter jets 851 times to intercept Chinese aircraft approaching Japanese airspace, which was 280 times more

Territorial disputes in the China Seas  129 than in the corresponding period of the previous year (Sharman 2017). These action–​reaction dynamics augment the risk of miscalculation or an accidental clash that could potentially lead to a larger armed conflict involving the US. In contrast to the situation in the SCS, where the smaller ASEAN claimants, such as the Philippines, represent an opponent to China that is weaker in military terms and less important to America ‘in the hierarchy of alliances’ (Ayson and Ball 2014, 139), in the ECS, the PRC faces a Japan that possesses formidable maritime capabilities and is an indispensable pillar of the US-​led security system in the Asia-​Pacific. As mentioned earlier, Tokyo perceives Beijing’s behaviour in the ECS as an attempt to unilaterally change the status quo, with the ultimate objective of making it an ‘inland Chinese sea’. From the perspective of Asian-​Pacific geopolitics, this corresponds to Japanese and Southeast Asian states’ anxieties about Beijing’s perceived long-​term intention to push back the US beyond the ‘first island chain’ (which includes the China Seas) and expand the PRC’s military operations further into the western Pacific. On the other hand, China’s challenge of Japan’s control over the islands, paralleled by its island-​building activities in the SCS, may be a sign of Beijing’s attempts to test US resolve and regional security commitments. This is in line with the PRC’s response to its strategic uncertainties discussed earlier, namely, to try to undermine Washington’s reliability as an ally and weaken the US-​led regional security order. At the same time, strategic uncertainties have bred restraint. Indeed, to avoid provoking each other, both Japan and China continue to prioritize the deployment of civilian coast guard vessels and paramilitaries to the disputed waters, rather than their navies (Ayson and Ball 2014, 139). In the air, the military air forces shadow each other, but have been careful so far to not cross the red line of engaging in ‘live fire’ (Ayson and Ball 2014, 144). Furthermore, the competitive Sino–​Japanese dynamics in the ECS have been mitigated to some extent by mutual engagement. The two neighbours recognize the critical importance of Confidence-​Building Measures (CBMs) in the maritime domain to reduce the risk of accidents at sea. Recent arrangements have included the acceleration of talks on the implementation of the Japan–​China Maritime and Air Communications Mechanism (which was expanded in 2015 with the addition of the aerial aspect), and the conduct of High Level Consultation meetings (since 2012), which include participants from various agencies involved with maritime issues (Parameswaran 2016b). Bilateral engagements have proceeded at various other levels, such as the meetings between Abe and Xi on the sidelines of multilateral gatherings, Japan–​China foreign ministerial meetings, and the bilateral security dialogue. These mutual engagements have promoted institutionalization, kept the channels of communication open, and served to stabilize the bilateral Sino–​ Japanese ties. In 2017, a political thaw in the relationship was evidenced by the agreement between Prime Minister Abe and President Xi for a ‘new start’ in relations. Abe also proposed to resume in 2018, which marked the 40th

130  Elena Atanassova-Cornelis anniversary of the signing of the Japan–​China Peace and Friendship Treaty, the mutual high-​level visits of leaders (The Japan Times 2017). These had been suspended due to the increased tensions in the ECS. However, bilateral diplomatic relations have improved since 2018, and President Xi is expected to make a state visit to Japan in 2021. Concerning the possibility of dispute settlement, it remains unlikely that either country would resort to international arbitration to resolve its conflicting jurisdictional claims in the ECS. In the first place, considering the outcome of the 2016 arbitration ruling on the ‘Philippine versus China’ case, it may not be in Tokyo’s interest to bring its dispute with the PRC to international court. If the Senkakus were to be ruled ‘rocks’ (hence, entitled only to territorial waters) rather than ‘islands’ (which also generate an EEZ) as claimed by Japan, this would effectively weaken Tokyo’s position. As far as the PRC is concerned, it has not controlled or administered the disputed islands in the ECS, so its claim may be undermined by the application of international law. Secondly, and more importantly, international arbitration in the ECS case will most likely have a bearing on the two countries’ other unresolved territorial disputes, especially in the SCS. For Beijing, resorting to international law would undermine its long-​standing position of having ‘historic rights’ in the China Seas (as these rights are incompatible with UNCLOS). The China Seas disputes and regional Sino–​Japanese dynamics The dynamics of Sino–​Japanese rivalry have been increasingly manifested in Beijing’s and Tokyo’s utilization of non-​military means (in conjunction with military ones) to constrain and shape the other’s behaviour. These are centred on various bi-​, mini-​, and multilateral initiatives in the Asia-​Pacific in the economic and security areas involving other regional players. These initiatives are related to the China Seas territorial disputes from the perspective of both countries’ wider strategic uncertainties in the Asia-​Pacific and relations with the US. It has already been pointed out that, for Beijing, the primary objective is to indirectly undermine US regional influence, as well as prevent US-​or Japan-​ led anti-​China coalition building. Under Xi Jinping, the PRC has increasingly relied on economic instruments of power to lure both claimant and non-​claimant states in the SCS disputes, as well as the ASEAN collectively as an organization. Xi’s policies have included economic and institutional initiatives, such as the OBOR and AIIB, and various bilateral and multilateral economic agreements with ASEAN states. This strategy seems to have paid off, most notably in China’s relations with the Philippines –​a treaty ally of the US and a vocal critic of the PRC’s behaviour in the SCS in the past. As the chairman of ASEAN in 2017, Manila was instrumental in softening ASEAN’s stance on the SCS disputes. For example, the Duterte administration ensured that references to (Chinese) ‘land reclamation and militarization’ activities did not make it to the Chairman’s Statement following the April

Territorial disputes in the China Seas  131 2017 ASEAN Summit (Channel News Asia 2017b). This stands in stark contrast to the Chairman’s Statement issued after the 2015 ASEAN Summit in Malaysia. The 2015 statement expressed ASEAN’s shared concerns over ‘land reclamation’ in the SCS, which was said to ‘erode trust and confidence and may undermine peace, security and stability’ in the region (ASEAN 2015, emphasis in original). The 2015 statement also stressed the importance of maintaining freedom of navigation in the area and called for ‘the expeditious establishment of an effective Code of Conduct’. By contrast, the 2017 statement did not include references to ‘tensions’ or ‘escalation of activities’, noting instead ‘the improving cooperation between ASEAN and China’ (Channel News Asia 2017b). The Duterte administration has also downplayed the dispute in its bilateral relations with Beijing by focusing instead on various business and investment opportunities with China. As discussed earlier, the PRC has adopted a dual ‘reward and punish’ approach in pursuing its maritime territorial claims in the China Seas. Manila, for one, knows all too well what Beijing’s economic retaliation feels like. For Tokyo, the growing uncertainties associated with the durability of the US engagements in the Asia-​Pacific, at a time of China’s expanding regional influence, have meant that Japan’s priority is to reduce the risk of possible future Chinese coercion and (maritime) domination. To this end, as examined in detail earlier, Japan has pursued a strategic diversification policy bilaterally with ASEAN states, especially with the claimants in the SCS disputes. Partly in response to Xi’s regional overtures through the OBOR and AIIB, the Abe administration has noticeably boosted Japan’s economic cooperation with, and investment in, Southeast Asia. This has included increased foreign aid assistance to the region with a focus on improving Southeast Asia’s disaster relief capabilities, funding transportation infrastructure, and assisting the region’s development. Tokyo’s efforts aim at presenting Japan as an alternative (to China and the US) economic and strategic partner for ASEAN states to minimize the risks of Japan’s possible regional isolation. As noted earlier, Japan has also sought to align with ASEAN on issues related to maritime security. The Abe administration’s ‘Vientiane vision’, unveiled in 2016, exemplifies Japan’s strategic objectives. This new initiative seeks an expanded defence cooperation between Japan and ASEAN (as an organization) in a comprehensive manner by including both non-​military and military aspects. The initiative focuses on promoting the principles of international law and maritime security, as well as on pursuing ‘practical defence cooperation’, such as organization of seminars, equipment and technology transfer, human resource development, and multilateral joint training (Ministry of Defense, Japan 2016). The comprehensive character of this initiative may dissipate regional concerns (by some ASEAN states or the PRC) that the Japan–​ASEAN cooperation targets China (Parameswaran 2016a). Indeed, by strengthening its ties with ASEAN in such a way, Tokyo attempts to indirectly constrain Beijing. At the

132  Elena Atanassova-Cornelis same time, Japan realizes that ASEAN unity is indispensable for curtailing the PRC’s maritime advances in the SCS, as well as for preventing China from pursuing its ‘divide and rule’ strategy in Asia (Koda 2016). Therefore, Tokyo’s stepped-​up engagement of ASEAN may be seen as an attempt to forge a collective response to China’s growing maritime presence, as well as to strengthen ASEAN-​led regional cooperation as Beijing expands its diplomatic and economic role. All in all, Japan has sought to check China’s growing maritime power in the Asia-​Pacific by seeking the establishment of a maritime order based on the rule of law. To this end, Japan has also endeavoured to utilize mini-​lateral frameworks and seek alignment with the US and its close partners in the Asia-​ Pacific region, such as India and Australia. The Trump administration has been seeking a ‘free and open Indo-​Pacific region’, which now broadens US security engagement in Asia to include India, including though the framework of the reinvigorated Quadrilateral Meeting (Quad) of like-​ minded democratic nations (Lee and Lee 2017).5 Japan has welcomed this US initiative, especially as the Quad was initially articulated by Abe in 2007. Japan is now a full member of the annual Malabar maritime exercises, conducted by the Indian and US navies in the Indian Ocean. The depth of Tokyo’s security relations with Canberra is only second to its alliance with the US. For its part, the Quad is focused on promoting free trade and defence cooperation in the Indo-​Pacific. It is yet another Japan-​promoted response to China’s growing regional influence, as well as its maritime presence in the China Seas and the Indian Ocean. These competitive dynamics have yet again been mitigated by engagement policies stemming from the restraining forces of mutual uncertainties. Indeed, Prime Minister Abe has alluded to a possible inclusion of the PRC in the ‘free and open Indo-​Pacific region’ (The Japan Times 2017) and has expressed interest in cooperating with China for the advancement of President Xi’s OBOR initiative. While Beijing has been wary of Tokyo’s Indo-​ Pacific strategy, the Xi administration’s response to Abe’s overtures has been positive overall. It seems that both Japan and China now try to emphasize shared interests in regional peace and economic development, of which infrastructure development is a critical component. Related to this are the mutual economic and business gains from an overall improved relationship. The latest sign of improving ties is President Xi’s call for more party-​to-​party exchanges between the two countries, which he sees as being very important for Sino–​ Japanese cooperation (Xinhua 2017).

Conclusion China’s growing diplomatic and security influence is, without any doubt, a critical variable reshaping Asian-​Pacific geopolitics, including in the China Seas. As this chapter has demonstrated, however, regional dynamics have

Territorial disputes in the China Seas  133 been increasingly informed by uncertainties related to America’s future commitments in Asia and the responses to these by China, itself, as well as core US allies, such as Japan. Beijing’s main strategic concerns are associated with the objectives of Washington’s China policy and how America’s involvement in the Asia-​ Pacific may influence Chinese regional ambitions in the long term. While Japan is perceived to be a main pillar of continuing US hegemony in the short term, for the PRC, Tokyo is also a potential ‘independent’ (from the US) rival in a future Asia with a reduced American presence. Therefore, Chinese responses to these uncertainties have sought to undermine America’s regional role and prevent a possible (Japan-​led) anti-​China coalition from building in the Asia-​Pacific. In the case of Japan, Tokyo’s uncertainties about the PRC’s expanding military power and, more broadly, regional aspirations in the long term have been magnified by growing concerns associated with the sustainability of the US security commitments to Japan in the short to medium term. Tokyo’s responses have sought to reduce the risk of US abandonment and future Chinese coercion and domination of the Asia-​Pacific region. Driven by strategic uncertainties, Sino–​Japanese dynamics in the context of the territorial disputes in the ECS and SCS are a manifestation of Japan’s and China’s wider concerns about the shifting geopolitical environment in the Asia-​Pacific. While mutual uncertainties have underpinned the regional Sino–​Japanese rivalry, they have also bred restraint. Indeed, neither is China an imminent (military) threat to Japan, nor does Japan pose a direct threat to the PRC’s regional aspirations, while both have much to gain from cooperation at a time of a highly unpredictable, even unreliable, US. To be sure, regional uncertainties are here to stay in the foreseeable future. Indeed, as mutual strategic distrust runs deep and continues to shape perceptions of enmity, as well as corresponding policies towards opponents, the recent thaw in Sino–​Japanese relations does not signify a move away from strategic competition or a major transformation of the conflict in the ECS. From this perspective, uncertainties will continue to operate as a restraining force against a potential armed confrontation in the China Seas or rivalry escalation between Asia’s two largest economies.

Notes 1 This section draws upon Atanassova-​Cornelis (2018). 2 Author’s interview with Kotani Tetsuo, Tokyo, November 2015. 3 Author’s personal communications and interviews in Jakarta, Singapore, and Tokyo in 2015. 4 In 2012, the Japanese government nationalised three of the disputed islands, which led to a major diplomatic crisis with, and economic retaliation by, China. For details, see Drifte (2014). 5 The Quad includes Japan, the US, India, and Australia.

134  Elena Atanassova-Cornelis

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6  All at sea? Japanese conceptions of regional order in response to the South China Sea disputes1 Lindsay Black

Introduction The South China Sea (SCS) disputes remain a key flashpoint in the East Asian region. How states manage these disputes depends on how they conceptualize order. Academic debates have understood regional security order in terms of a teleological progression from a balance of power to a security community. Scholars tend to perceive the security order in East Asia as falling within one of these two categories. An alternative approach is provided by Adler and Greve, who argue that regional security orders may overlap (Adler and Greve 2009). Goh’s notion of omni-​enmeshment combines well with Adler and Greve’s approach (Goh 2008). She argues that, while the balance of power remains central, a nascent security community also helps to secure order in the East Asian region. This security community has adopted a functional approach by tackling specific security issues to bolster trust and cooperation that may spill over into new issue areas (Breslin and Wilson 2015). In addition, international production networks mesh the region together, creating an economic imperative to avoid conflict (Goh 2008). Though many policymakers, scholars, and journalists focus on China’s rise and what mounting tensions mean for the balance of power in East Asia, there are signs that multilateral security diplomacy remains the key to solving the SCS disputes. Despite ongoing frictions in the SCS, China and ASEAN claimants may be quietly taking steps towards cooperation. Though tentative, these steps indicate the workings of a nascent security community and highlight that regional security is better understood in terms of overlapping security orders. This chapter applies the framework of overlapping security orders to examine how successive Japanese governments’ conceptions of regional order have shaped their responses to the SCS disputes. Japan is an important regional player with substantial interests in the SCS. Japan’s Sea Lines of Communication (SLOCs) pass through this disputed maritime territory and Japanese governments have long sought to ensure the safety of maritime transit in the region. Japanese expertise, primarily supplied by the Japan Coast Guard (JCG), has provided maritime navigational aids, training for regional

138  Lindsay Black maritime organizations in terms of combatting maritime crime and protecting the maritime environment, as well as search-​and-​rescue exercises in Southeast Asia. Prior to the current Abe Administration, Japanese governments sought to balance against China as well as socialize China into abiding by regional norms in line with an understanding of overlapping regional security orders. Since Abe took power in 2013, Japan’s approach solely relied on alliance building and containing China’s rise. This transformation is rooted in the Abe Administration’s emphasis on a ‘China threat’, which it propounded to justify revisions to the Japanese Constitution. The Abe Administration’s reluctance to engage in multilateral security fora as a means to resolve the disputes increasingly leaves Japan isolated in the region, as well as reliant on and subservient to an increasingly demanding US under President Donald Trump. Expertise and resources that Japan could put to use in de-​escalating the disputes in the SCS have instead been employed as part of this balancing strategy. This chapter therefore argues that the Abe Administration is impeding budding attempts to de-​escalate the disputes in the SCS, hereby undermining a regional security order based on both a balance of power and a security community. The Japanese government should therefore return to their traditional approach to the SCS disputes, which comprehends the overlapping nature of East Asia’s regional security order. The chapter begins by considering how academic debates have conceptualized regional order in East Asia in terms of either a balance of power or a security community. Combining Adler and Greve’s framework with Goh’s conception of omni-​enmeshment, this chapter demonstrates that regional orders in East Asia exist simultaneously and overlap with each other. The next section applies the insights derived from the theoretical discussion to the case study of the SCS, before examining the evolution of Japan’s response to the disputes. The chapter concludes by evaluating the implications of Japan’s regional security vision in terms of the SCS disputes.

Regional order in East Asia Debates concerning the nature of regional order in East Asia since the end of the Cold War are divided along two lines. On the one hand, some analysts emphasize the centrality of the balance of power, which Adler and Greve define as an ‘international system […] composed of competing centres of power that are arranged according to their relative capabilities and are, in the absence of an overarching authority, locked into the security dilemma’ (Adler and Greve 2009, 67). On the other hand, scholars note the importance of regional norms, values, and institutions, and whether these are contributing to the establishment of a security community or a community of states that determine their relations, so as to create a regional identity in accordance with which disputes are managed peacefully (Adler and Greve 2009). Determining a regional strategic vision largely entails choosing between either of these two conceptualizations or opting for some kind of mixed strategy.

Japanese conceptions of regional order  139 In terms of the balance of power group, Aaron Friedberg’s contention that Europe’s past is Asia’s future is seen as an inaugural contribution to debates about East Asian order in the post-​Cold War era (Friedberg 1993). Friedberg maintains that a drawdown of US power in East Asia leads to an arms race and a subsequent security dilemma that would destabilize the region. The inevitable conflict would mirror Europe’s violent 20th century. Countering Friedberg’s argument, Thomas Berger asserted that far from abandoning the region, the US continued to ensure stability in East Asia through its ‘hubs-​ and-​spokes alliance system’ (Berger 2000). The key sources of instability lay with growing nationalism and the failure to confront historical issues and ongoing territorial disputes (Berger 2000). Yuzawa also perceives the US hubs-​and-​spokes alliance system to be the lynchpin in maintaining security in East Asia (Yuzawa 2009). Though he recognizes that regional institutions help to foster dialogue between states in the region, these institutions are too weak to engender a regional identity and security community (Yuzawa 2009). Since the early 2000s, concerns about China’s rise and subsequent US decline have emerged. In a 2006 article, for example, Robert Ross states that the balance of power in East Asia is shifting, but that East Asian states continue to balance with the US against China until they become too vulnerable to Chinese influence and would have to accommodate the rising power. It is the task of Washington to ensure that East Asian states do not become so vulnerable (Ross 2006). In contrast to the literature focusing on the balance of power in East Asia, some scholars focus on the importance of norms, values, and institutions to explain how regional order is managed. Countering Friedberg’s earlier article, Kang maintains that Asia’s future mirrors its history in the sense that East Asian states bandwagon with China and accept a hierarchical regional order dominated by China as they have in the past (Kang 2003). For Amitav Acharya, Kang’s claim that states embrace an order in which they are subservient to China is insulting. Instead, regional institutions underpinned by normative understandings, such as reliance on consensus building, regional solutions to regional problems, and non-​interference, are the key to maintaining regional order (Acharya 2003). Similarly, Qin and Wei assert that the continual process of interaction between East Asian officials in the myriad institutions and regional fora, coupled with an ability to empathize with other actors, are at the heart of regional stability (Qin and Wei 2008). Rather than these officials latently knowing and abiding by regional norms as Qin and Wei suggest, Alice Ba asserts that officials in regional institutions are embedded in a process of ‘complex engagement’ through which they learn these norms and are socialized to follow them (Ba 2006). The problem with the above literature is that it delineates regional order on a spectrum spanning from anarchy through a balance of power to the teleological end point of a security community, hereby echoing prominent theoretical contributions to debates on regional security order (Alagappa 2003; Buzan and Wæver 2003). By contrast, for Adler and Greve, ‘radically different

140  Lindsay Black security orders’ can overlap in any given region (Adler and Greve 2009). They specifically point to the balance of power and an ASEAN-​based security community existing simultaneously in the East Asian region. Additionally, they emphasize the combination of security governance and practices in delineating how order is managed. Whereas security governance is rule-​based and enables states to manage threats, practices are social and help foster trust. For example, China’s participation in the Rim of the Pacific (RIMPAC) military exercise on 7 July 2016 sent a dual message (Johnson 2016a). On the one hand, it was a military exercise and an aspect of regional security governance that demonstrated the health of the US-​led hubs-​and-​spokes alliance system, particularly at a time when concerns about territorial disputes in the South and East China Seas were prevalent. On the other hand, the exercise constituted a security practice that provided an opportunity to include China and build cooperative mechanisms that might induce states towards a multilateral approach to sensitive territorial issues. The combination of security governance and practices is also observed in what Evelyn Goh has termed omni-​enmeshment, by which she means the ability of Southeast Asian states to enmesh Great Powers through economic and political means, regional institutions, and bilateral relations (Goh 2008).2 What is notable in the above debates about regional order is that the role of international law is downplayed. Those scholars who assert that the East Asian security order is dominated by a balance of power logic argue along the lines of Krasner’s notion of sovereignty as organized hypocrisy. This notion suggests that states follow a logic of consequences by which they weigh up the implications of their actions, rather than basing their conduct on commonly accepted rules and regulations (Krasner 1999). By contrast, scholars like Nardin maintain that states are bound by the dictates of international law and behave according to a logic of appropriateness (Nardin 1992, 23). This binary is too simplistic, however. Writers including Bull and Holsti in the English School tradition perceive international law as key to the establishment of an international society, but also highlight its socially determined nature (Bull 2002; Holsti 2004). International law provides a framework for legitimate action that most states abide by most of the time, rather than face opprobrium, though they ignore international law when it is in their national interests to do so (Bull 2002, 136; Holsti 2004). International law therefore informs state interests rather than dictating how states behave, encouraging states to step back from assertive behaviour once a ruling under international law is passed (Holsti 2004, 176). At the same time, as international societies are social realms, so international law is itself a social construct. States therefore interpret the dictates of international law in accordance with their historical experiences of it. China, for example, traditionally holds a suspicious view of international law, seeing it as an instrument employed by Great Powers at the expense of territories and peoples they conquered (Yuan 1984, 423–​424; Mitter 2003; Hong 2012). The unequal treaties imposed upon China by European imperial

Japanese conceptions of regional order  141 powers during China’s century of humiliation largely inform this apprehensive view of international law. This view is largely shared by other states in East Asia. In regard to the United Nations Convention on the Law of the Sea (UNCLOS), China was positive about developments in the early 1980s that the Convention provided developing states with enhanced rights to seabed resources, but remained concerned about laws pertaining to the right of foreign warships to pass through territorial waters, the definition and delineation of continental shelves, and mining activities (Yuan 1984). China ratified UNCLOS on 15 May 1996, seeing it as a victory for developing nations over the entrenched interests of traditional maritime powers. In justifying China’s ratification of UNCLOS, then Vice-​Minister for Foreign Affairs Li Zhaoxing argued that UNCLOS helps safeguard China’s maritime rights, extend its maritime jurisdiction, facilitate the exploitation of seabed resources, and enhance China’s image by demonstrating its commitment to managing the global maritime commons (Hong 2012, 116). As Yuan notes, China tends to ‘pick and choose’ the international laws that most benefit its national interest and to reject those that interfere with its sovereignty (Yuan 1984, 426). As a result, international law has a somewhat ambiguous relationship with the construction of East Asia’s security order. On the one hand, a failure to abide by international law leads to opprobrium, undermining the extent to which a state is accepted as a trusted member of a security community. On the other hand, a state’s historical experience of international law helps shape how it responds to international legal treaties and decisions. East Asian states are traditionally reluctant to give primacy to international law in the conduct of their affairs due to their experiences of imperialism and colonialism. Indeed, these experiences nurtured the key ASEAN norms of non-​interference, regional solutions to regional problems, and consensus building. Rather than international law holding the key to resolving the SCS disputes, if anything, international legal decisions have entrenched positions and prevented a de-​escalation of tensions. Instead, a balance of power together with a nascent security community are the primary means of maintaining order in the East Asian region. First and foremost, de-​escalating tensions requires multilateral functional cooperation, as can be observed in the case of the SCS disputes.

The SCS disputes There is substantial evidence to support the claim that the SCS disputes are understood from the perspective of balance of power politics. Indeed, even Goh acknowledges that recent developments in the SCS conform more to balance of power dynamics, describing the interaction between participants in terms of a ‘maritime insecurity spiral’ and an ‘intense security dilemma’, as well as noting the importance of power asymmetry between China and ASEAN and Sino–​US rivalry in the SCS (Goh 2016).3 China has resorted to military force in the SCS against Vietnam in 1988 and the Philippines in

142  Lindsay Black 1995, based on a strategy of delay and consolidation, whereby multilateral cooperation is used to buy time and retain territorial gains (Fravel 2011). In accordance with this strategy, China seeks to enhance its influence in the SCS by establishing an air and sea denial zone (Rowan 2005). China prefers to deal with the issues on a bilateral basis, though it has engaged with multilateral processes or regional institutions on the SCS disputes. According to Foot and To, China’s engagement with multilateral processes and regional institutions is moderate and pursued in the knowledge that the ASEAN-​centric approach based on consensus building, non-​intervention, and Confidence Building Measures (CBMs), has excluded the US and helped to counter the ‘China threat’ thesis, without threatening its long-​term goals (Foot 1998; To 2003). More recently, in May 2009, Beijing submitted the ‘nine-​dash line’ map to the UN, enabling China to make a broader territorial claim while remaining ambiguous as to what the map actually means and what basis it has under international law (Fravel 2011; Buszynski 2012). Since 2010, the People’s Liberation Army (PLA) increased its presence in the SCS, leading to more confrontations with other military forces and fishing vessels. Additionally, the Chinese government ordered land reclamation projects and a militarization of Chinese-​held territory in the SCS. Such Chinese actions raised concerns across the region and led to the US becoming more involved in the SCS dispute, under the banner of protecting ‘freedom of navigation’, even though it is not a signatory state to UNCLOS (Ba 2011; Thayer 2011). The US has also expanded bases in Vietnam and the Philippines to enhance its power projection capabilities, deployed two aircraft carrier strike groups, and used regional fora, such as the ASEAN Regional Forum (ARF), to multi-​lateralize the dispute (Womack 2011). For example, at the July 2010 ARF meeting, Secretary of State Clinton asserted the US position in the SCS, arguing that territorial rights must be defendable under UNCLOS and pushed for a multilateral diplomatic process on the disputes (Buszynski 2012). Two years later, at the 19th ARF meeting, Clinton called for a ‘Code of Conduct in the SCS’ (BBC News 2012). Though Clinton’s stance echoes the long-​standing US position regarding the disputes in the SCS, the timing and manner in which her statements were delivered angered the Chinese delegation (To 2003). Despite Chinese protests, the US approach has largely been welcomed by Southeast Asian states that lay claim to areas of the SCS. In short, recent developments in the SCS seem to support the contention that balance-​of-​power politics reign in the East Asian region, especially when even regional institutions that are supposed to be based on consensus building and non-​interference become sites for Great-​Power competition. Nonetheless, it is hasty to conclude that balance-​of-​power dynamics are the sole guarantor of order when it comes to an issue like the territorial disputes in the SCS. It is first necessary to contextualize the dispute to understand how states have sought to regulate these conflicts through the balance of power, as well as regional institutions and multilateral cooperation (Sahashi 2011, 4–​5; Johnston 2013; Pajon 2013, 31–​32). Only by contextualizing the dispute

Japanese conceptions of regional order  143 is a more nuanced understanding of recent Chinese actions and multilateral efforts reached. East Asian diplomats have spent a great deal of time and energy in developing multilateral responses to the SCS dispute. In 1992, ASEAN states signed a Declaration of Conduct in the SCS to resolve the issue peacefully, collectively manage energy and maritime resources, and enhance security (Buszynski 2003). The Declaration of Conduct signalled ASEAN unity on the matter and pressured China to agree to the declaration (Buszynski 2003). Following the resolution of the Taiwan Straits crisis (1995–​1996), Chinese leaders gradually became more open to the idea of multilateral cooperation, security dialogue, and comprehensive security. The end of the Cold War, the Tiananmen Square incident of 1989, and the Taiwan Straits crisis had damaged China’s international reputation. Having defeated the New Leftist faction that sought to reverse Deng Xiaoping’s policies of opening up to the global economy, the reformists, under Jiang Zemin, required peaceful regional relations to focus on the continued economic growth upon which the Chinese Communist Party’s legitimacy was based (Fewsmith 2008). This shift also came about because Jiang Zemin wrested control of the SCS issue from the military, particularly from hardliner Liu Huaqing (Buszynski 2003). With this in mind, the Chinese government accepted the Declaration of Conduct on 4 November 2002 (Buszynski 2003; To 2003). Though this was only a declaration and not a binding or enforceable code, Chinese and Philippine energy companies began joint exploration of the SCS a year later (Rowan 2005). In addition, Chinese officials participated in regional meetings on the SCS, signed on to CBMs, enhanced military exchanges, participated as observers at military exercises, and engaged in information exchanges, among other activities designed to mitigate tensions in the SCS. Hu Jintao continued to cooperate with his Southeast Asian counterparts on the SCS issue (Buszynski 2012). Perceived by some as a ‘charm offensive’, China’s multilateral approach was arguably successful and contrasted starkly with US unilateralism in the ‘War on Terror’ (Beeson and Li 2012). From then on, there is a clear history of multilateral cooperation between China and the ASEAN claimants in the case of the SCS disputes. The real turning point came in May 2009 when Malaysia and Vietnam submitted their territorial claims in the SCS to UNCLOS to meet a UN deadline, prompting responses from the Philippines and China. Indeed, by failing to respond, these states risked losing their territorial claims. For the most part, China’s reaction did not differ from its established position on the issue. Beijing did not expand its claims and expressed interest in continuing to act in accordance with the 2002 Declaration of Conduct (Fravel 2011). The primary change in China’s submission compared to earlier responses was the addition of the 1947 nine-​dash line map in support of its territorial claims. China’s official statement referred to the nine-​dash line map as a ‘Location Map of the SCS Islands’ (Nan Hai Zhu Dao Wei Zhi Tu) and claimed internal waters, territorial seas and contiguous zones, exclusive

144  Lindsay Black economic zones, and the continental shelf based on the SCS Islands (Nanhai Zhudao), suggesting that it was the islands and features themselves that China claimed, rather than the entire territory (Ministry of Foreign Affairs of the People’s Republic of China 2016). Nonetheless, China’s submission is widely perceived as ambiguous (Fravel 2011; Drifte 2016, 11–​12; for a legal overview of the nine-​dash line, see Keyuan 2012). According to Buszynski, for example, the inclusion of the nine-​dash line map demarcates a territory that extends far beyond China’s Exclusive Economic Zone (EEZ) and is not supported by UNCLOS (Buszynski 2012). Seeking clarification about the maritime claims made by itself and China in the SCS, the government of the Philippines turned to the Permanent Court of Arbitration (PCA) located in The Hague. On 12 July 2016, the PCA completely rejected the historical basis of Chinese claims to the SCS on international legal grounds in its ruling (Rothwell 2016). In addition, the PCA found that none of the features submitted to the panel for consideration constituted islands, therefore, none of them allow for a 200-​ nautical-​mile EEZ (Rothwell 2016). China’s response to the PCA award was to disregard it entirely, suggesting that sovereignty is indeed ‘organized hypocrisy’, that international law has no major role to play in the SCS disputes, and that ‘might makes right’, in line with balance-​of-​power thinking (J. Lee 2016a). At the same time, as Swaine notes, there are two key points demonstrating that China’s response had as much to do with regional norms as it did with its national interests (Swaine 2016). First, from Beijing’s perspective, the Philippines violated its commitment to conduct negotiations on the SCS bilaterally. Second, the Philippines misused the UNCLOS process by trying to inveigle a dispute over sovereignty into an arbitration process that has no authority to rule on sovereignty-​based issues. In short, the Chinese government critiqued the Philippines’ approach and maintained that the PCA ruling was illegitimate. Nevertheless, the PCA award had significant ramifications for China. Notably, the foundations of Chinese official claims to be a benevolent or responsible power in its international relations were significantly eroded (Zhao 2018). Furthermore, any deterioration of relations in the SCS is viewed from the perspective of the PCA award (Zhao 2018). China’s conduct in the SCS and its claims to territory there have been judged as illegitimate under international law. Facing international opprobrium in the wake of the PCA ruling, Chinese officials sought out a diplomatic route to resolve the SCS disputes. Andrew Chubb asserts that, in light of the PCA ruling, the Chinese government clarified that its claims to ‘historical rights’ in the SCS are separate from the nine-​ dash line map (Chubb 2016). This appeared to leave China only laying claim to specific maritime features that lie within the nine-​dash line rather than the entire territory. Similarly, a bill covering law enforcement and fishing rights in the SCS passed by the Hainan Provincial Legislature did not encompass the entire zone bound by the nine-​dash line (Holmes 2014). Furthermore, while there was a great deal of speculation regarding China’s intention to

Japanese conceptions of regional order  145 declare an Air Defense Identification Zone (ADIZ) in the SCS following the PCA ruling as a demonstration of strength, this never materialized. Though the Chinese Ministry of Foreign Affairs did release a statement proclaiming China’s right to declare an ADIZ in response to the ruling and Chinese military forces conducted exercises near the Paracel Islands prior to the PCA’s decision, China mostly avoided antagonizing the rival claimants (Ashraf 2016; Mishra 2016).4 Instead, Chinese diplomats have returned to their tried and tested approach of seeking to solve the disputes bilaterally. With the exceptions of Vietnam and Japan, East Asian states have not sought to use the PCA ruling on 12 July 2016 to pressure China into making concessions in the SCS (Galang 2016; Panda 2016). Instead, ASEAN states continue to perceive a multilateral approach to be preferable to pressing China, even in light of the PCA award. Noor argues that, at the 49th ASEAN Foreign Ministers’ Meeting (AMM) held in late July in Vientiane, Laos, the joint communique of the AMM mirrored previous ASEAN statements without isolating any of the parties in the dispute, did not refer to the PCA ruling, and urged all claimants to abide by the Declaration of Conduct and finalize the Code of Conduct (Bing 2016; Noor 2016). Similarly, Bing notes the degree of restraint exercised by China and ASEAN claimants in the wake of the PCA ruling, especially considering reports, such as by He and Feng, that the ruling would embolden ASEAN claimants to isolate China (Bing 2016; He and Feng 2016). Bing points to an ‘emerging consensus on the SCS issue between China and ASEAN’, adding that China has successfully settled territorial disputes with its neighbours in the past and can therefore do so again in the case of the SCS (Bing 2016). Both the Declaration on the Conduct of Parties and the Code of Conduct continue to be the best chances of managing, if not resolving, the disputes multilaterally, and China has been willing to join multilateral negotiations on the Code of Conduct (Womack 2011; Das 2012; Bing 2016). Commentators on the SCS disputes also lend their voices to encouraging multilateral cooperation. Issue areas for functional cooperation include environmental protection, energy exploration and joint development, maritime search and rescue, marine safety, marine scientific research, and cooperation against piracy and transnational crime, as well as to develop the Code for Unplanned Encounters at Sea (CUES) to better coordinate naval assets in disputed territorial zones (Bateman 2016b; Bateman 2016c; Goh 2016; Gupta 2016; Y.-​H. Lee 2016). There are therefore a number of possibilities to develop multilateral cooperation, and it is far from clear that ASEAN has abandoned a multilateral approach.

Japan’s response to the SCS disputes Japan is an important regional player with substantial interests in the SCS and it has contributed to multilateral maritime initiatives in the region. Japan’s SLOCs pass through the SCS, and Japanese governments have long sought to ensure the safety of maritime transit in the region. Japanese expertise,

146  Lindsay Black primarily supplied by the JCG, has provided maritime navigational aids, training for regional maritime organizations in terms of combating maritime crime and protecting the maritime environment, as well as search-​and-​rescue exercises in Southeast Asia. Japan therefore not only has an interest in the resolution of the SCS disputes, but also possesses substantial expertise to help develop functional cooperation in key issue areas that could be employed to de-​escalate the disputes. Though the majority of scholarly articles on the SCS disputes focus on the main claimants, a number of academics examine how Japanese governments have become more critical of China. For Pugliese, Japan has become mired in a ‘geopolitical game of Go’ in which security concerns centring on China’s rise have come to dominate its foreign policy (Pugliese 2016). Pugliese sees an assertive China playing both the East and SCS disputes off against each other with the Abe Administration scrambling to shore up alliances with regional states and the US in a bid to contain Chinese aggression. Pugliese therefore downplays the role of regional multilateral institutions in mediating territorial disputes to emphasize the geostrategic dimensions of contemporary East Asian international relations. Midford, on the other hand, portrays Prime Minister Abe’s response to the SCS disputes as a continuation of the policies enacted by the Democratic Party of Japan (DPJ), a position largely echoed by Storey (2013; Midford 2015). Midford argues that talk of Japan becoming a ‘normal’ power able to dispatch its military forces abroad is not apparent in the case of the SCS (Midford 2015, 526). Instead, limited by Japan’s WWII legacy, the Abe Administration has adopted the approach of its DPJ predecessor, namely, a combination of Official Developmental Assistance (ODA), reliance on the JCG, multilateralism, and strategic alliance building to counter China in the SCS (Midford 2015, 527, 544–​545). In addition, Japan pursued functional cooperation on maritime security by using both ODA and the JCG to develop the capabilities and equipment of Southeast Asian maritime law enforcement and rescue organizations (Black 2011; Black 2014; Midford 2015, 531–​535). Though Abe moved to reinterpret Japan’s anti-​militarist Constitution from July 2014, his administration’s new interpretation of the restrictions regarding the Self-​Defense Forces (SDF) and collective self-​defence are not applicable in the case of a low-​intensity conflict like the SCS (Midford 2015, 545–​570). Any differences in Abe’s approach compared with his predecessors are largely rhetorical (Midford 2015, 544). Like Midford, Pajon argues that Japan’s approach to the SCS issue combines both multilateral diplomacy to ‘socialize’ China and to develop strategic partnerships in the region to resolve the territorial disputes peacefully and ensure that vital SLOCs remain open (Pajon 2013, 13–​14). While Pajon agrees that these two approaches are complimentary, she asserts that Japan has looked to strengthen its strategic partnerships, as regional fora have failed to develop substantial preventative diplomacy measures (Pajon 2013, 17–​18). Similarly, Drifte argues that, under Prime Minister Abe, Japan switched from

Japanese conceptions of regional order  147 a dual strategy in the SCS encompassing both multilateralism and bilateral strategic partnerships, to an approach that relies predominantly on security ties (Drifte 2016). He asserts that Japan’s now one-​dimensional approach is detrimental to both Sino–​Japanese relations and the peaceful resolution of the SCS disputes (Drifte 2016). The argument in this chapter concurs with Drifte and Pajon’s assessments, but considers these developments in terms of the alternative Grand Strategies of the DPJ and the Liberal Democratic Party (LDP) governments, as well as considering how China conceives of regional order and the implications of this for Japan’s Grand Strategy. Ultimately, the transformation to a one-​dimensional strategy in the SCS is attributed to a shift in the Japanese government’s understanding of the regional security order under Prime Minster Abe, as demonstrated by a comparison with the approaches of successive DPJ administrations.

The DPJ’s approach to the SCS disputes When tensions concerning the SCS disputes emerged in 2010, the DPJ was in power and had been trying to pursue a closer relationship with China. Following the collision between a Chinese fishing boat and a JCG vessel in September 2010 near the disputed Senkaku/​Diaoyu Islands in the East China Sea, Sino–​Japanese relations became steadily more fraught. One might therefore have expected the Kan and Noda Administrations to apply pressure on China over the SCS disputes to counter Chinese actions in the East China Sea. Instead, DPJ representatives perceived the SCS disputes as a separate issue to be dealt with in regional fora, notably in the ARF (Ministry of Foreign Affairs of Japan 2010; Ministry of Foreign Affairs of Japan 2011; Ministry of Foreign Affairs of Japan 2012a; Ministry of Foreign Affairs of Japan 2012b). The DPJ’s policy regarding the SCS is in line with its Grand Strategy of maintaining the US–​Japan alliance, while simultaneously seeking to develop multilateral cooperation in the East Asian region –​a policy that Japan had arguably pursued throughout the post-​Cold War era to greater or lesser degrees (Ashizawa 2008; Pempel 2011; Hughes 2012; Sahashi 2016). Rather than perceiving regional institutions as a means of countering China, the DPJ understood such fora as constituting a means to socialize China into the norms of the regional and international communities and build trust through functional cooperation (Sahashi 2009; Hughes 2012, 126–​127). When Noda Yoshihiko took power in September 2011, the Japanese government began to perceive the SCS dispute as a priority and to stress the connection between tensions in the East and South China seas (Midford 2015, 535–​537). While this connection was made by the previous administration under Kan Naoto and is reflected in the 2010 National Defense Program Guidelines (NDPG), the Noda Administration ratcheted up Japan’s response by dispatching the MSDF to the Philippines, Indonesia, and Vietnam to engage in capacity-​building exercises (Midford 2015, 542). In addition, in September 2011, Prime Minister Noda signed a strategic partnership with the

148  Lindsay Black Philippines that explicitly stated that the SCS was a ‘common interest’ and granted Coast Guard vessels to bolster the Philippines’ maritime law enforcement capabilities (Midford 2015, 540–​541). Noda offered similar support to other Southeast Asian states, including Vietnam, demonstrating his resolve to bolster Japan’s strategic partnerships in the region (Sahashi 2011, 9; Pajon 2013, 18–​25; Black 2014; Midford 2015, 541–​542; Drifte 2016, 15–​20). At the same time, it should be noted that the Noda Administration assisted Southeast Asian states through non-​military means by deploying the JCG rather than the Maritime SDF (Black 2014; Midford 2015, 543). The Noda Administration also looked to develop Japan’s involvement in regional approaches to address the SCS disputes by proposing an East Asian Maritime Forum (EAMF; Pajon 2013, 17; Midford 2015, 538; Drifte 2016, 14). Despite opposition from China, which has long sought to keep non-​claimant states out of key negotiations involving territorial disputes, Noda’s proposed EAMF was accepted in 2012 (Midford 2015, 539). In addition to bolstering strategic alliances, Noda emphasized law enforcement capacity building and regional approaches to tackling the SCS disputes. DPJ officials were also careful not to blame a specific country for the tensions in the SCS. At a press conference on 27 July 2010, Foreign Minister Okada Katsuya stated, ‘there are differences of opinion on territorial claims over this area between the ASEAN countries and China, and among the ASEAN countries themselves, and this instability could have an impact on peace in Asia’ (Ministry of Foreign Affairs of Japan 2010). Though DPJ representatives voiced concern about the potential disruption to regional trade, they did not go as far as to openly pressure China on the SCS disputes. Similarly, a statement by Urabe Toshinao, Japan’s ambassador to the Philippines, clearly reflects Japan’s position regarding the SCS disputes during the DPJ administration. Urabe stated that ‘Tokyo has an interest in ensuring that the vast ocean remains safe and open to commerce. Japanese officials will “exchange notes” with their Philippine counterparts and assess how they can help ensure that the disputes are resolved peacefully’ (Associated Press 2011). He added that Japan was not ganging up on China, which he described as ‘a very important partner’ with which Japan wanted to ‘create a win–​win relationship’ (Associated Press 2011). In terms of its foreign policy rhetoric, DPJ administrations were noticeably constrained in their assessments of the SCS disputes and Japan’s role in them. Overall, DPJ administrations combined a balance-​of-​power strategy with an engagement of multilateral fora in their policy regarding the SCS. When the DPJ was replaced by Prime Minister Abe’s LDP in December 2012, Japan’s policy towards the SCS disputes emphasized a balance-​of-​power strategy at the expense of multilateral approaches.

Abe’s approach to the SCS disputes As a key member in the Abe Administration from December 2012, Foreign Minister Kishida Fumio largely reiterated the DPJ position when addressing

Japanese conceptions of regional order  149 the SCS issue for the first time at the 20th ARF Ministerial Meeting on 2 July 2013 (Ministry of Foreign Affairs of Japan 2013). From then on, however, Japanese officials adopted a more vocal stance on the disputes and began to raise the issue far more frequently. Admittedly, China’s land reclamation activities and military manoeuvres in the SCS had increased, but the rhetoric of the Abe Administration signalled a distinct policy change. Unlike the DPJ administrations, the Abe government explicitly singled out China as the aggressor on a number of occasions. Responding to a question at a press conference on 9 May 2014, Kishida stated that: tensions in the region have increased as a result of China unilaterally commencing excavation in an area of ocean with undefined borders, which I  am deeply worried about. Furthermore, this situation can be viewed as one step in a series of unilateral and provocative maritime advances by China. I  believe the Chinese side should elucidate the basis for and the details of its activities to the Vietnamese side and the international community. (Ministry of Foreign Affairs of Japan 2014a) Similarly, at a press conference on 4 January 2016, Kishida replied to a question on the SCSs by stating, ‘Japan has serious concerns about China’s unilateral actions to change the status quo and its attempts to further establish its claims as accomplished facts. I think China must refrain from such actions as they cannot contribute to a peaceful resolution of the dispute’ (Ministry of Foreign Affairs of Japan 2016a). At other times, either in regional meetings or presumably when Japanese officials wanted to take the pressure off China, specific states were not singled out in the dispute (Ministry of Foreign Affairs of Japan 2015; Ministry of Foreign Affairs of Japan 2016b). That said, Prime Minister Abe’s references to ‘attempts to change the status quo through force or coercion’ and ‘elements that spawn instability’ in his ‘Peace and Prosperity’ keynote address at the Shangri-​La Dialogue on 30 May 2014 left few in doubt as to which state was the primary culprit (Ministry of Foreign Affairs of Japan 2014b). While Abe asserted that the East Asia Summit (EAS) should be strengthened to become the primary regional forum in which political and security issues, including the SCS, are tackled, his motives were to contain China rather than to pursue a genuine multilateral approach to resolving the conflict. First, Abe stated that the ARF and ASEAN Plus Three (APT) were too weak to tackle the SCS disputes, thereby relegating those fora in which China was more prepared to negotiate. Second, Abe juxtaposed China’s failure to abide by the rule of law in the SCS by emphasizing the rule of law as the guiding principle for regional security. Third, he used his speech as a platform to justify his ambitions to transform Japan’s Constitution to allow Japan’s military to contribute more to regional and global security (Ministry of Foreign Affairs of Japan 2014b). In subsequent speeches, Prime Minister Abe reiterated

150  Lindsay Black that Japan steadfastly adhered to an approach based on the rule of law and freedom of navigation in an effort to contain China (Prime Minister of Japan and His Cabinet 2017). These moves arguably date back to the Abe Shinzō (20 September 2006 to 26 September 2007)  and Asō Tarō (24 September 2008 to 16 September 2009) administrations. Then Foreign Minister Asō Tarō’s concept of an ‘Arc of Freedom and Stability’ and Prime Minister Abe Shinzō’s calls for ‘value diplomacy’ and a ‘democratic security diamond’ provided the rhetorical foundations for a new strategic vision that eschewed regional multilateralism, tied Japan to Western ideals, and sought to contain China (Ministry of Foreign Affairs of Japan 2007; Abe 2012). Since the inauguration of Abe’s second period in office, from December 2012, Japan’s strategic vision has pivoted significantly towards its alliance with the US and militarized its strategic links with Australia in December 2012, India in January 2014, and several ASEAN states, such as the Philippines and Vietnam (Oga 2009, 143–​144; Pempel 2011, 271; Hemmings and Kuroki 2013, 63–​64; Satake 2016b). More recently, these efforts have become enjoined to the Indo-​Pacific and Quad concepts, which are essentially re-​articulations of the ‘democratic security diamond’ proposal. Abe’s efforts to contrast Chinese aggression and disregard for international law with Japan’s benevolent and law-​abiding foreign policy is also mirrored in the broader Japanese discourse on the SCS (Hirakawa 2017). According to Sasaki Ken, a defence and foreign policy analyst for Japan’s House of Councilors, China’s actions in the SCS indicate that it is a revisionist power that aims to overturn the US-​dominated and rule-​based order in East Asia using both military muscle and economic institutions and policies, such as the Asian Infrastructure and Investment Bank (AIIB) and the ‘One Belt, One Road’ initiative (Sasaki 2016, 97, 99, 109). China’s dismissal of the July 2016 ruling by the PCA in The Hague indicates that China is an irresponsible power, whereas Japan upholds international law and the freedom of navigation (Sasaki 2016, 108). Similarly, Kotani notes how China’s approach to the SCS shifted from cooperation with ASEAN and joint development of maritime resources to a discourse of maritime rights based on a victim mentality (Kotani 2013). China fostered a sense of victimization, mobilizing legal, diplomatic, military, and maritime law-​enforcement means, as it perceived other states to be violating its maritime rights (Kotani 2013, 34). Both Kotani and Sasaki focus on how China’s assertiveness raised tensions in the SCS. They do not consider how and why China responded to the actions of others. This failure to articulate a more diverse range of opinion is indicative of the tunnel vision of foreign policymakers in and around the Abe Administration in playing up the notion of a ‘China threat’. Abe’s references to Chinese aggression in the East and South China seas in parliamentary discussions and Japan’s 2013 National Security Strategy clearly set out to justify his goal of revising the Japanese Constitution, enhancing the military role of the SDF and its ability to operate with the US (Drifte 2016, 5–​6; Pugliese 2016, 34). In June 2015, Defense Minister Nakatani Gen maintained that China’s reclamation

Japanese conceptions of regional order  151 activities in the SCS would enable the PLA to hinder US assistance to Japan in the case of a contingency in the East China Sea (Drifte 2016, 6). These concerns were reflected in Japan’s 2015 Defense White Paper (Drifte 2016, 7). Abe backed up his rhetoric on the SCS by dispatching the SDF on exercises with the Australian, US, and Philippine military forces (Pugliese 2016, 125–​ 126). In addition, the Abe Administration enhanced military cooperation with Southeast Asian states through visits, exercises, and sales of weaponry and military equipment (Satake 2016a). Both Admiral Robert Thomas, commander of the US Seventh Fleet, and Nakatani Gen, former Japanese Defense Minister, indicated that they foresaw a role for the MSDF in policing the SCS (Drifte 2016, 21; Pollmann 2015). Prime Minister Abe openly backed the US Freedom of Navigation (FON) operations and acknowledged that he was considering how to involve the MSDF in operations in the SCS (Satake 2016a; Drifte 2016, 21). In March 2017, Japan’s helicopter carrier, the Izumo, was dispatched on an extended mission that included conducting exercises with the US navy in the SCS: a development that Chinese officials watched closely (China Daily 2017; Kubo and Kelly 2017). By pursuing this course, Abe signalled to Washington that Japan is prepared to make a substantial international security contribution, while simultaneously countering China and relaying to the Japanese population the need for constitutional revision to expand the role of the SDF (Pugliese 2016, 101). The Abe Administration also sought to pressure China concerning the PCA ruling on the SCS disputes. Foreign Minister Kishida Fumio asserted that the PCA ruling was ‘finally and legally binding’ and that all parties concerned should comply with the award, a position that Prime Minister Abe reiterated to Chinese Premier Xi Jinping during the Japan–​ China Summit Meeting on 5 September 2016 (Ministry of Foreign Affairs of Japan 2016c; Ministry of Foreign Affairs of Japan 2016d). At the 2016 Shangri-​La Dialogue, Defense Minister Nakatani Gen proposed an initiative including China that conceptualized East Asian order based on the rule of international law (Sasaki 2016, 109). However, rather than constituting a genuine effort at multilateral cooperation, Nakatani’s initiative was designed to isolate China, forcing it to accept the PCA ruling. There are numerous problems with the Abe Administration’s approach to dealing with the SCS disputes. It is clear that framing China as a regional threat helped Prime Minister Abe justify Japan’s balancing behaviour against China and pursue his long-​term goal of transforming Japan’s Constitution. However, Abe’s repeated references to the rule of law as a way to pressure China over the SCS disputes is particularly problematic in light of Japan’s own maritime claims. For example, Cohen and Dutton point to Japan’s claims on Okinotorishima in the Pacific (Cohen and Dutton 2016). Though termed an island (‘shima’) in Japanese, the maritime feature was not endorsed as such by the UN Commission on the Limits of the Continental Shelf in 2012, and China, Taiwan, and South Korea all dispute Japan’s claim that Okinotorishima is an island that permits a 200-​mile EEZ. The Abe Administration’s continual

152  Lindsay Black assertions about the primacy of international law leave it exposed to charges of hypocrisy. At the 22nd ARF Ministerial Meeting on 6 August 2015, Foreign Minister Kishida stated in relation to the SCS disputes that ‘under international law, submerged features, low-​tide elevations outside territorial sea as well as artificial islands that are constructed by reclaiming these features do not have [an] exclusive economic zone or continental shelf, or even territorial sea and airspace of their own’ (Ministry of Foreign Affairs of Japan 2015). Kishida’s statement could equally relate to Japan’s claims to, and land reclamation activities on, Okinotorishima. With this case in mind, the Abe government quickly asserted that the PCA ruling had not determined whether a maritime feature constitutes a rock or an island (J. Lee 2016b). It is highly ambiguous as to what the legal foundations of the Abe Administration’s claims in this case are. Prime Minister Abe’s rhetoric in response to the SCS disputes is therefore not only leading Japan down a foreign policy cul-​de-​sac but may also leave Japanese foreign policymakers trapped by the very discourse they propound.

Conclusion Japan’s approach to the SCS disputes changed from combining balance-​of-​ power and multilateral approaches under successive DPJ administrations to relying solely on a balance-​of-​power strategy under Prime Minister Abe. As a result, Japan’s response to the SCS disputes has become one-​dimensional and needs to reconsider the centrality of multilateral channels in regulating East Asian order. While the Abe Administration has supported US moves to escalate the disputes and pressure China, the various claimants have begun quietly and tentatively seeking new ways to cooperate in light of the PCA ruling on 12 July 2016. Japan has the expertise and resources to contribute to multilateral functional cooperation on maritime issues that could help to regulate the disputes if utilized. While the outcomes of these cooperative efforts are far from clear, Japan not only risks being left behind should these attempts proceed, but continued diplomatic and military pressure also increases the chances of miscalculation and possibly even conflict (Valencia 2015a; Valencia 2015b; Bateman 2016a). The one-​dimensional nature of the Abe Administration’s security vision reveals how it failed to conceptualize regional security in terms of overlapping orders as Goh, Adler, and Greve discuss. While the hubs-​and-​spokes alliance system and the balance of power are key elements in maintaining order, they overlap with a nascent security community based on multilateralism and regional institutions that ensure that dialogue proceeds on contentious issues. Ultimately, it is only through multilateral channels that issues as complex as the SCS disputes can be demilitarized and potentially resolved, but the policy of the Abe Administration undermines attempts to de-​escalate the disputes that are in line with a nascent security community approach. Because regional security orders overlap in East Asia, Japanese leaders do not need to sacrifice

Japanese conceptions of regional order  153 their relationship with the US. Japanese policymakers have always sought to keep East Asian regionalism open to as many members as possible and to keep the US at the centre of East Asian security. Japan’s current leadership does not need to carve out a new approach to engaging with regional institutions and multilateral cooperation. Instead, they need to resurrect an old one. That said, Prime Minister Abe is arguably unlikely to change his stance on the SCS issue, as he needs to constantly reiterate a ‘China threat’ and to contrast Japan’s adherence to international law with China’s failure to do so in the SCS to justify his proposed changes to the Japanese Constitution.

Notes 1 This chapter was completed with the help of funding from the Osaka School of International Public Policy (OSIPP), Cross Appointment System, Osaka University, Autumn 2016. 2 Goh considers the density of economic relations through regional production networks that bind the region. If states are to continue to attract foreign direct investment (FDI) to boost growth and employment in a globalized political economy, they must ensure that regional order is maintained. Governments can ill afford to destabilize that order lest Transnational Corporations (TNCs) decide to shift their investments elsewhere. Conversely, the business community may exert pressure on governments to refrain from actions that might destabilize the region. This may be especially true of East Asian developmental states where the ties between government and business are strong. Examining these links is beyond the scope of this article, but for a consideration of these issues, see Black (2018). 3 It should be noted that Goh’s take is more subtle, however, as she notes that economic interdependence between China and ASEAN continues to draw the claimants in the dispute closer together, and that China is unlikely to contest an international order from which it has benefitted substantially in terms of economic growth. In her view, the key source of tension lies in competition over fishery resources and it is here that she perceives the need for multilateral cooperation (ibid.). She argues that such multilateral efforts could be expanded by finalizing the ASEAN–​China SCS Code of Conduct. 4 There has been some recent speculation that China may be preparing to undertake land reclamation activities on the Scarborough Shoal (see Johnson 2016b).

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158  Lindsay Black Pajon, Céline. 2013. ‘Japan and the South China Sea: Forging Strategic Partnerships in a Divided Region.’ Institut français des relations internationales. www.ifri.org/​ downloads/​asievisions60celinepajon.pdf. Panda, Ankit. 2016. ‘Japan Wants India to Speak Up on the South China Sea, But Will New Delhi Listen?’ The Diplomat. https://​thediplomat.com/​2016/​10/​japan-​ wants-​india-​to-​speak-​up-​on-​the-​south-​china-​sea-​but-​will-​new-​delhi-​listen/​. Pempel, T. J. 2011. ‘Japan’s Search for the “Sweet Spot”: International Cooperation and Regional Security in Northeast Asia.’ Orbis 55 (2):  255–​273. doi:10.1016/​ j.orbis.2011.01.010. Pollmann, Mina. 2015. ‘Japan Wades Into South China Sea Issue.’ The Diplomat. https://​thediplomat.com/​2015/​02/​japan-​wades-​into-​south-​china-​sea-​issue/​. Prime Minister of Japan and His Cabinet. 2017. ‘Press Conference by Prime Minister Shinzo Abe Following His Visit to the Philippines, Australia, Indonesia and Viet Nam.’ Prime Minister of Japan and His Cabinet. https://​japan.kantei.go.jp/​97_​abe/​ statement/​201701/​1221207_​11567.html. Pugliese, Giulio. 2016. ‘Japan 2015:  Confronting East Asia’s Geopolitical Game of Go.’ In The Chinese-​American Race for Hegemony in Asia, edited by Nicola Mocci and Michelguglielmo Torri, 93–​132. Rome: Viella. Qin, Yaqing, and Ling Wei. 2008. ‘Structures, Processes, and the Socialization of Power:  East Asian Community-​ Building and the Rise of China.’ In China’s Ascent: Power, Security, and the Future of International Politics, edited by Robert S. Ross and Zhu Feng, 115–​138. Ithaca, NY: Cornell University Press. Ross, Robert. 2006. ‘Balance of Power Politics and the Rise of China: Accommodation and Balancing in East Asia.’ Security Studies 15 (3): 355–​395. Rothwell, Donald. 2016. ‘Cause for Optimism in the South China Sea.’ East Asia Forum, 25 July. www.eastasiaforum.org/​2016/​07/​25/​assessing-​the-​damage-​the-​ south-​china-​sea-​arbitration/​. Rowan, Joshua P. 2005. ‘The US–​Japan Security Alliance, ASEAN, and the South China Sea Dispute.’ Asian Survey 45 (3): 414–​436. Sahashi, Ryo. 2009. ‘Hatoyama’s New Path and Washington’s Anxiety.’ East Asia Forum, 6 September. www.eastasiaforum.org/​2009/​09/​06/​hatoyamas-​new-​path-​ and-​washingtons-​anxiety/​. Sahashi, Ryo. 2011. ‘The Rise of China and the Changing Regional Security Architecture.’ US–​Japan Papers, Japan Center for International Exchange. www. jcie.org/​researchpdfs/​USJapanPapers/​Sahashi.pdf. Sahashi, Ryo. 2016. ‘Japan’s Vision for the East Asian Security Order.’ East Asia Forum, 23 February. www.eastasiaforum.org/​2016/​02/​23/​japans-​vision-​for-​the-​ east-​asian-​security-​order/​. Sasaki, Ken. 2016. ‘China’s Advance in the South China Sea and the International Community’s Response (Chūgoku No Minami Shina Kai Shinshutsu to Kokusaishakai No Taiō).’ Legislation and Inquiry (Rippō to Chōsa) 7 (378): 97–​111. Satake, Tomohiko. 2016a. ‘Japan and Australia Ramp up Defence Engagement in the South China Sea.’ East Asia Forum, 26 April. www.eastasiaforum.org/​2016/​04/​26/​ japan-​and-​australia-​ramp-​up-​defence-​engagement-​in-​the-​south-​china-​sea/​. Satake, Tomohiko. 2016b. ‘Japan’s Defense Diplomacy with ASEAN Member-​States.’ The Japan Times, 30 August www.japantimes.co.jp/​opinion/​2016/​08/​30/​commentary/​japan-​commentary/​japans-​defense-​diplomacy-​asean-​member-​states/​. Storey, Ian. 2013. ‘Japan’s Maritime Security Interests in Southeast Asia and the South China Sea Dispute.’ Political Science 65 (2): 135–​156.

Japanese conceptions of regional order  159 Swaine, Michael D. 2016. ‘Chinese Views on the South China Sea Arbitration Case between the People’s Republic of China and the Philippines.’ China Leadership Monitor 51 (2): 1–​13. Thayer, Carlyle. 2011. ‘China’s New Wave of Aggressive Assertiveness in the South China Sea.’ International Journal of China Studies 2 (3): 555–​583. To, Lee Lai. 2003. ‘China, the USA and the SCS Conflicts.’ Security Dialogue 34 (1): 25–​39. Valencia, Mark. 2015a. ‘New Round of China-​Bashing over the South China Sea.’ East Asia Forum, 18 June. www.eastasiaforum.org/​2015/​06/​18/​new-​round-​of-​china-​ bashing-​over-​the-​south-​china-​sea/​. Valencia, Mark. 2015b. ‘US South China Sea Patrols Are Ill-​Advised and Dangerous.’ East Asia Forum, 14 October. www.eastasiaforum.org/​2015/​10/​14/​us-​south-​china-​ sea-​patrols-​are-​ill-​advised-​and-​dangerous/​. Womack, Brantly. 2011. ‘The Spratlys: From Dangerous Ground to Apple of Discord.’ Contemporary Southeast Asia 33 (3): 370–​387. Yuan, Paul C. 1984. ‘The United Nations Convention on the Law of the Sea from a Chinese Perspective.’ Texas International Law Journal 19 (2): 433. Yuzawa, Takeshi. 2009. ‘Multilateral Institutions and the Prospects for Regional Order in East Asia: The Role of Regional Institutions as Mechanisms for Maintaining the Status Quo.’ International Relations 2009 (158): 10–​24. Zhao, Suisheng. 2018. ‘China and the South China Sea Arbitration:  Geopolitics Versus International Law.’ Journal of Contemporary China 27 (109):  1–​15. www. tandfonline.com/​doi/​abs/​10.1080/​10670564.2017.1363012.

7  Whose ‘freedom of navigation’? Australia, China, the United States, and the making of order in the ‘Indo-​Pacific’1 Christian Wirth

Introduction Maritime security concerns related to shipping routes through the Malacca Straits ‘chokepoint’ and the South China Sea have become major drivers of post-​Cold War international politics. Despite that the contestations in the two geographically distinct areas raise different legal and political questions, the issues of territorial disputes and the safety of maritime transport are intertwined, often conflated, and therefore hardly separable in terms of their effects on international relations. Taken together, they are commonly seen as proof of the fact that rising China is limiting the free flow of goods at sea and, by consequence, challenging the ‘rules-​based international order’ (DoD, 2016; White House, 2015). Yet, the concern with the security of so-​called Sea Lanes of Communication (SLOC) is not new. In the course of seeking to reorient their foreign and security politics after the Cold War, Japanese opinion leaders had already in the mid-​1990s come to see the security of sea lanes through Southeast Asia as a ‘matter of life and death’ for their economy (Cabinet Secretariat, 1994). The Chinese leadership, by 2003, also found itself facing this ‘Malacca Dilemma’ (Shi, 2004). At the same time, extra-​regional actors, such as Australia and the US, who would be among the least affected in the extreme scenario of sea-​lane closures (Noer & Gregory, 1996; Laurenceson, 2017), came to attach disproportionate importance to the freedom of navigation (FoN) in the ‘Indo-​ Pacific’. China’s large-​ scale land reclamations from 2014 onwards and an arbitration tribunal’s award for the Philippine, and against the Chinese, position in the South China Sea from 2016, finally brought the issue to the G-​7 leaders’ and EU decision-​makers’ attention (G-​7, 2015, 2016; Tusk, 2016), while reinforcing threat perceptions across the Asia-​ Pacific region (Turnbull, 2017). This chapter disentangles the drivers of increasing concerns with the so-​ called freedom of navigation that lie at the core of regional, and increasingly also global, security politics. By clarifying the meaning of FoN as a purported pillar of the global ‘rule-​based order’, this research sheds light

The making of order in the ‘Indo-Pacific’  161 on the prevailing conception of international order that is, ostensibly, in increasing need of protection and defence. By addressing several questions –​ whose freedom of navigation? from what danger? and for which purpose?2 –​ the present discussion goes beyond the assessment of particular claims and actions, and complements existing studies that focus on the Chinese and US roles in challenging and defending international norms and orders. Australia, a major regional actor with close economic relations to East Asia, enduring cultural links to Europe, and strong military ties with the US, provides a suitable case. This is not only because of its location at the confluence of the Indian and the Pacific Oceans, but also because Australia has no territorial claims in the South China Sea and overwhelmingly relies on maritime shipping routes through these seas for its trade with China. Focusing on political rather than on legal discourses, the chapter finds that the Australian concerns with the freedom of navigation, such as they are frequently voiced by government representatives and students of international security, essentially revolve about the freedom of navigation for warships rather than for commercial shipping. While piracy and terrorism continue to be seen as major threats to the latter, the challenge of rising China has come to dominate the discourse as the major threat to the former. Yet, as the considerably more nuanced assessments on the part of scholars and maritime policy experts show, the perceived danger is not direct Chinese actions against Australia or Australia-​ bound shipping. At work are diffuse anxieties that the ‘rise of China’, or the rise of ‘Asia’, overturns a particular imagined notion of a US-​led order that has, ostensibly, guaranteed Australian, as well as general regional and global, prosperity, security, and stability for no fewer than 70 years. Whether intended or not, this conception of order not only enables continuity in Canberra’s foreign and security politics, but also reinforces the Australian state. To substantiate this argument, the next section outlines the contours of the academic debate about Australian views of order. The subsequent section shows how developments of the international law of the sea have affected perceptions of the freedom of navigation through Southeast Asian seas. The line of argument then proceeds with discussions of Australian views of the ostensibly legal conception of the freedom of navigation, before situating the FoN within changing geopolitical ideas about regional and global orders, including the rise of the ‘Indo-​Pacific’. It is then suggested that the Australian equation of the so-​called liberal rules-​based order with an idealized view of the US-​centred order, static and written back in time, must invariably produce perceptions of challenges and threats, and that it has as much to do with the Australian policymakers’ difficulties with coming to terms with approaching ‘Asia’, as with external actors’ behaviour. In conclusion, the finding that the debate about the Chinese challenge to the FoN, and therefore also to the rules-​based order, is much more about geopolitics than international law, also raises the question, what norms and rules of international order are indeed being challenged, defended and remade?

162  Christian Wirth

Australian conceptions of international order Academics adhere to considerably different conceptions of (international) order. Political leaders, despite frequent usage, deploy it without much substantial clarification, instead imbuing it, explicitly or implicitly, with changing meanings (Bisley, 2015). Thus, it is crucial to remember that ‘the language of “international order” or “global governance” is never politically neutral’ (Hurrell, 2007, p. 20). In fact, the ‘capacity to produce and project proposals, conceptions, and theories of order is a central part of the practice of power’ (Hurrell, 2007, p. 20). The clearest and most authoritative representations of Australian conceptions of order can be found in the 2016 Defence and the 2017 Foreign Policy White Papers. The reports’ thrust is that the so-​called liberal rules-​based order, a universally beneficial system created and led by the US, has come under threat by the shift of power towards Asia, and by the non-​democratic assertively rising China in particular (DoD, 2016, p. 14; GoA, 2017). Zala (2016) critically reflects on the former document by means of an imaginary email conversation between the late doyens of post-​war Australian international relations scholarship, Hedley Bull and Coral Bell, with E.H. Carr. Yet, despite Zala’s (2016, p.  442) apt pointing out of the report’s ‘magical’ term, the ‘rules-​based order’s’ intriguing vagueness, moral loading, and fundamental error to conceive international law as existing beyond power relations, his protagonists remain caught in the past. Their debate, similar to the discussions among many of their contemporaries, is focussed on great powers and the desirability of a 21st-​century version of the 19th century ‘concert’ among them (Carr, 2018; White, 2011).3 They pay scant attention to the political feasibility, fragility, and ethical desirability of such a concert. Apart from the fact that great-​power entitlement to respective spheres of influence carries a neo-​colonial ring and would likely accentuate rather than ameliorate the jockeying for regional leadership in the making of rules and norms, the debate also fails to account for the fact that the classical European precursor had been an alliance among declining aristocratic elites that sought to keep peace amongst themselves by transposing interstate competition to their overseas possessions, while guarding against increasing revolutionary pressures at home –​both with disastrous consequences (Halperin, 2004). As we shall see, this great-​power-​centric conception of order informs the mainstream Australian debate about the issue of how much space, if at all, the US should give to the rising powers, and to China in particular. However, assuming that Australia is external to, and merely reacting to, the Sino–​US rivalry marginalizes Canberra’s own role in these new power politics, including the question of how Australia’s complicated relationship with ‘Asia’ matters. To address these shortcomings, methodologically more critical and empirically less Euro-​centric perspectives are insightful. In their discussion of changes in Canberra’s foreign and security policies of the 1980s and 1990s, Higgott and Nossal (1997) noted that Australian policymakers had been thinking and acting as if they were caught between two

The making of order in the ‘Indo-Pacific’  163 worlds:  an ‘old’ Anglo-​American world of Australia’s 19th-​century origins and 20th-​century development, and a ‘new’ world of the Asia Pacific. While Australia’s economic integration into East Asia superseded long-​standing links with the imperial England-​centred economy, and the abandonment of the White Australia immigration policy in the early 1970s signalled cultural adaptation to its neighbourhood, the ‘centrality of Anglo-​Saxonism’ (Phillips, 2015, p. 23) not only prevented Australia from arriving in the new world; it also engendered persistent feelings of vulnerability toward ‘Asia’. The continuing identification with the British monarchy  –​Queen Elizabeth II remains the formal Head of State –​and the replacement of security ties with the British Empire by those with the US –​the Five Power Defence Arrangements (FPDA) remain operational and the Australia–​New Zealand–​US (ANZUS) alliance is more relevant than ever  –​are but the clearest indicators for Australia’s in-​ between-​ness or liminality, and continuing status as ‘odd man out’ of the East Asian region (Higgott & Nossal, 2008). The success of Australian initiatives in the 1990s in creating an East Asian regional space, including through the establishment of multilateral institutions for trade and security governance, was fleeting. In fact, even the more progressive Australian Labor Party’s efforts to lessen the contradictions inherent to being a ‘branch office of empire’ or ‘Western outpost’4 remain ambiguous, contested (Jones & Benvenuti, 2006), and prone to arouse political, and at times ethnocentric, backlashes.5 After assessing Australian engagement in the Global War on Terrorism, a development that has widely been seen as a manifestation of the changing global order, Burke similarly concludes that Australia’s approach to security rests upon an unresolved paradox: It has often been described as ‘one of the most secure countries in the world’ because of its isolated strategic location, natural sea barrier and distance from major conflict, yet it has long harboured a deep sense of physical and existential insecurity. (Burke, 2007, p. 126) Perera (2009) delves deeper into the Australian insular imagination and its political consequences. She finds that the hegemonic narrative of Australia’s British origins, reinforced through the modern cartographic representation of an island-​continent, led Australians to think of themselves as being external to the region: seeing the world as a whole separates the self from it (Perera, 2009, p.  39). Consequently, Australian policymakers tend to look at the world out there, overseas, in the binaries of either opportunities or threats. ‘Fear’ and ‘greed’ simultaneously inform Canberra’s China and ‘Asia’ policies (Garnaut, 2015). The insecurity that this ideational distance engenders, gives rise to the never-​ending search for certainty that can be found, temporarily, in reified threats or in reified opportunities (Pan, 2012, p. 15). Both kinds of expectations are unrealistic and unstable. Hence, the persisting insecurities raise the risk that prophecies of confrontation and conflict become

164  Christian Wirth self-​fulfilling. Specifically, this cognitive distance or gap manifests itself in the perception that a secure Australia faces an arc of instability or insecurity to its north (Perera, 2009). Yet, what is at stake is not Australia’s territorial integrity or military security, but its very insularity (Perera, 2009, p. 105); an insular identity that has been (Phillips, 2015), and still is, mobilized for the purpose of building and reinforcing the state. To see how this identity construction relates to the ‘rules-​based order’, it is first necessary to be clear about the rules in question.

The law of the sea’s contested ‘rules and norms’ The entry into force of the United Nations Convention on the Law of the Sea (UNCLOS) in 1994 raised the stakes in territorial disputes while complicating the delimitation of maritime zones and the pertaining rights through the introduction of Exclusive Economic Zones (EEZs). Thereby, UNCLOS indirectly heightened anxieties about the ‘choking’ hazard of the Malacca Straits due to congestion, pirate attacks, and potential interference of hostile naval forces intervening in territorial disputes. Yet, contemporary political debates about the rules and norms of the law of the sea remain silent about the crucial fact that UNCLOS, signed in 1982, is a package deal that was reached between two main groups of states that can roughly be defined as the developed and the developing countries (Booth, 1985). The former had long tried to preserve a maximum of their freedom to sail and explore the seas; the latter sought control over their offshore resources while safeguarding their often newly gained independence (Anand, 1983). The prospect for ever-​ narrowing semi-​ enclosed6 East Asian seas put this fundamental contention within the UNCLOS bargain into stark relief. EEZs give coastal states the sole rights to exploring and exploiting all living and non-​living resources up to 200 nautical miles (NM) from their shores (UNCLOS, 1982, art. 57). Where governments can prove the presence of continental shelves, these zones can be extended up to 350 NM from their coastlines to a maximum depth of 2,500 m (UNCLOS, 1982, art. 76). This development brought sovereign control over islands  –​defined as naturally formed land that remains above water and sustains economic life (UNCLOS, 1982, art. 121) –​and therefore generated rights to EEZs over features, such as the Paracel and Spratly groups at the centre of the South China Sea, into the spotlight. Yet, expanding claims to territorial seas and EEZs, and concomitant rights to enforce provisions for marine environmental protection and the regulation of maritime transport, sometimes referred to as ‘creeping jurisdiction’ (Kwiatkowska, 1991a), have been preoccupying UNCLOS negotiators for decades. Therefore, the developed states made sure that UNCLOS codified the freedom of navigation according to the customary legal norm based on Mare Liberum, Hugo de Groot’s (Grotius) treatise in defence of the Dutch Empire’s access to Southeast Asia against imperial Portuguese and Spanish attempts to monopolize trade routes. UNCLOS articles 17–​19 grant the right

The making of order in the ‘Indo-Pacific’  165 to innocent passage through territorial seas to all foreign ships, provided that it is ‘not prejudicial to peace, good order or security of the coastal state’. However, mostly Euro-​Atlantic developed states, many of which boast strong naval forces, deemed this provision too restrictive. Their pushback eventually led to a compromise through the introduction of the transit passage regime (UNCLOS, 1982, art. 37–​40). For traffic along sea routes, through straits commonly used for international navigation between one part of the high seas or an EEZ and another, the relaxed regime, which does not mandate submarines to surface and show their flags, would apply (UNCLOS, 1982, art. 20). This provision is complemented with the regime of archipelagic sea lane passage that requires archipelagic states7 to designate sea lanes and air routes through their waters. If they refrain from doing so, archipelagic sea lane passage nevertheless applies to those routes that are ‘normally used for international navigation’ (UNCLOS, 1982, art. 53). In the 1980s and 1990s, the pertaining disagreements between the often newly independent coastal states, on the one hand, and extra-​regional (great) powers, on the other hand, centred on the Philippines and Indonesia. Both had been refusing to acknowledge several commonly used international transport routes and guarantee archipelagic sea lane passage. By the 2000s, however, the contestation between those naval powers favouring the freedom of navigation for their ships, and coastal states interested in keeping foreign vessels off their (claimed) seas, resurfaced in the form of opposing interpretations of the right to free navigation in EEZs. According to UNCLOS, coastal states’ right to exploit living and non-​living resources within their EEZ precludes foreign vessels from conducting oceanographic research for that purpose. For Chinese leaders who established their modern independent state in 1949 and have, on the background of not-​too-​distant historical experiences, long felt vulnerable to naval powers, this meant that any oceanographic research would require prior notice and approval (PRC, 1998). In contrast, the US, as the main operator of government vessels in East Asian seas, strictly distinguishes between exploration activities for economic purposes and those for military purposes. While critics point to the obligation, according to UNCLOS art. 58, of states to operate in EEZs with ‘due regard to the rights and duties of the coastal State’, Washington argues that the intelligence gathering is permitted as long as the results are not used for resource exploration (Neher, Pedrozo, & Roach, 2009). Despite Australian experts’ alarmist reactions when the Chinese navy did precisely that and observed military exercises from within the Australian EEZ (thereby revealing its own double standards), Canberra adheres to the same liberal interpretation (Greene, 2017). The Sino–​ US confrontation over interpretations of international law extends to the skies. It caused one of the biggest crises in post-​Tiananmen Sino–​US relations when it led to the mid-​air collision of a Chinese fighter jet with a US reconnaissance plane in April 2001 (Kan et al., 2001). At sea, the so-​called Impeccable incident of 2009 epitomizes this action–​reaction cycle. Then, ‘five Chinese vessels shadowed and aggressively maneuvered in

166  Christian Wirth dangerously close proximity to USNS Impeccable in an apparent coordinated effort to harass the US ocean surveillance ship while it was conducting routine operations in international waters [China’s EEZ]’ (Kan et al., 2001, p. 1). Such incidents are recurrent (Wirth, 2017) and tensions rose to yet another level after media reports in September 2015 showed how China has been reclaiming and guarding large areas around a number of reefs, rocks, and islets in the disputed Spratly group (Sciutto, 2015). In response, the Obama and Trump administrations enhanced so-​ called Freedom of Navigation Operations (FONOPS) in the South China Sea. In line with long-​standing practice (DoD, 2017) and under heightened public scrutiny, the US Navy sailed warships close to or within the hypothetical territorial seas of China-​claimed features (O’Rourke, 2017; Panda, 2017). For Australia, the US’s staunchest ally in the region, this development accentuated a number of difficult legal and political questions.

Extending maritime territories and zones Surrounded by the ocean and thus heavily dependent on maritime transport, Australia had been an early and enthusiastic participant in the UNCLOS negotiations. The birth of new states in the course of the wave of decolonization, and Great Britain’s retreat from ‘East of Suez’, made the constitution of a new order all the more important. Throughout the 1980s and during the early 1990s, Australia, by aligning itself with those who sought to preserve maximum freedom to sail the seas and those who sought to gain control over marine resources and independence, benefitted enormously from the ocean enclosure movement embodied in UNCLOS. Given its strong historical and political ties –​that is, ‘shared common values’ with the United Kingdom and the US –​Australia joined the Western Europe and Others negotiation group, which favoured unimpeded navigation. Yet, the Australian position was not singularly focused on the freedom of navigation. Canberra was also keen to extend the reach of its own sovereign control over marine resources.8 According to Kaye (2015, p.  256) ‘as a State with an extensive and remote coastline, and a wide continental shelf, it was clearly in Australia’s interests to pursue the greatest extension of maritime jurisdiction possible’. Hence, Australian negotiators also played a leading role in the so-​called 13 Broad-​shelf States or Margineers Group and, in addition, participated in the Coastal States Group, which explicitly aimed at expanding state control over coastal seas while pushing back against the lobbying of the Landlocked and Geographically Disadvantaged States. Not least due to claiming 41% of the Antarctic continent, Australia, by 2008, came to claim ‘rights over more waters than any other nation’ (Woolner, 2008, p. 2). Still, with the freedom of maritime transport routes as their major concern, Australian representatives supported a pragmatic definition of innocent passage and succeed in defending their view on the passage of warships through territorial seas (Kaye, 2015). At the same time, the minor importance of fishing for the Australian economy and

The making of order in the ‘Indo-Pacific’  167 the vast expanses of Australian seas meant that questions related to EEZs, despite being hotly debated elsewhere, remained relatively uncontentious in Canberra. This situation changed when national governments started adjusting their legal frameworks to the UNCLOS’s new spatial ordering of the seas and thereby exposed the contradiction inherent to the UNCLOS package deal, including Canberra’s taking advantage of it. Australian representatives protested vigorously when Malaysia, the Philippines, and Indonesia reiterated their intentions to retain jurisdiction over their coastal and archipelagic waters, respectively (GoI, 1983; GoM, 1984, Johnson, 2000; Kwiatkowska, 1991b). In 1992, Beijing adjusted national legislation too, and passed the Law on the Territorial Sea and Contiguous Zone. The Chinese move caused widespread concern because it not only reiterated and elaborated on previous claims in the South China Sea, but also included the disputed Diaoyu/​ Senkaku East China Sea islets, and codified the requirement for foreign ‘military ships’ to seek prior approval before entering China’s EEZ (PRC, 1992). At the same time, the Philippine and Indonesian governments continued to drag their feet; Jakarta’s designation of a mere three archipelagic sea lanes, roughly in an East–​West direction and therefore of limited use for Australia-​ bound shipping, has consistently been criticized in Canberra (Forward, 2009). By the late 1990s, however, the Australian focus shifted northward. Wrangling over hydrocarbon exploration among the littoral governments meant that territorial disputes in the South China Sea continued to fester. After a Philippine plan to conduct a survey off Palawan leaked, the Chinese government apparently decided to occupy a rock formation also known as Mischief Reef (Hayton, 2014, Ch. 3). The barracks on stilts were discovered in January 1995 and became an epitome for China’s expansion. This was mainly a result of the Philippine response: confronted with this fait accompli, the Ramos government sought to regionalize and internationalize the dispute. In vain, it tried to invoke the US–​Philippine Mutual Defense Treaty (Dzurek, 1996). Yet, this lobbying rekindled fears of rising impediments to the freedom of navigation. Because, or despite that, observers frequently noted that the reef lay in the midst of a heavily-​frequented shipping route, the Philippines succeeded in inducing Japan and the US to reiterate their national interests in the freedom of navigation or security of the so-​called SLOCs (Dzurek, 1996, p. 35). As the disputes among the South China Sea claimants escalated, the Philippines also managed to get Australia on board: in 1996, the Australian Defence Minister already had perceived the Spratly dispute as posing ‘a major threat to regional security’ (Dzurek, 1996, p. 42). Yet, the Australian government was not immune against the temptation to control maritime space for the sake of national security. In 2004, fuelled by fears of terrorist attacks in the wake of 9/​11, the Howard government set out to declare an Australian Maritime Identification Zone, soon to be renamed ‘System’ (AMIS), under which Australian authorities would require all non-​ recreational vessels navigating within 1,000 NM of the coast to report their

168  Christian Wirth identity and provide details about their journey and cargo before entering Australian ports (Klein, 2006; Bateman, 2007). Then, in 2005, the Joint Border Protection Command comprising the Australian Defence Force and Customs Service was set up, giving the former unprecedented law-​enforcement powers (Moore, 2006). After strong protests, especially from Indonesia and New Zealand  –​the implementation of the original plan would have meant that Canberra effectively policed these countries’ seas –​the AMIS seems to rely mostly on the collection and management of electronic data, while its legal status as maritime zone remains unclear (Goldrick, 2008, p. 242). Meanwhile, the South China Sea disputes have continued unabatedly and shifted the focus to other states’ efforts to control the seas.

Debating threats to the ‘freedom of navigation’ In the course of a few years, the long-​standing contention between developed and developing states over the extent of the freedom of the seas versus the enclosure of the ocean, inherent to UNCLOS, became reframed. Specific concerns related to the freedom of navigation were equated with UNCLOS as a whole, which in turn became a proxy for ‘international order’. Paradoxically, this strengthening emphasis on the ‘rules-​based order’ went hand in hand with the emptying from meaning of the already ambiguous term. Concrete problems with international law and UNCLOS as a whole were marginalized in the heated debates about frequently deployed, and therefore increasingly abstract, notions of ‘freedom’ and ‘rules-​based order’. Intensifying contestations over territorial control in the South China Sea stirred Australian anxieties and led to the reaffirmation of Canberra’s ‘strategic interests’ in the region. When, in April 2012, a Philippine naval vessel’s inspection of Chinese fishing boats near Scarborough Shoal led to a prolonged stand-​off, then Australian Foreign Minister Carr stated that Australia doesn’t take sides. Yet, with clear reference to China’s reluctance to abandon the so-​ called nine-​dash line, an ambiguous claim to the entire South China Sea that was also debated within China (Wang, 2015), Carr emphasized that we do, given our interest in the South China Sea, given the fact that a large proportion of our trade travels through it, … call on governments to clarify and pursue those claims and accompanying maritime rights in accordance with international law including the UN Law of the Sea Convention. (BBC News, 2012) Subsequently, the Liberal opposition party and a number of strategists called upon the government to become more active in resolving the dispute because ‘the South China Sea is Australia’s single point of greatest strategic vulnerability’ (Callick, 2012). Meanwhile, Beijing continued to raise tensions when it established Sansha City as a political entity with formal jurisdiction over disputed waters

The making of order in the ‘Indo-Pacific’  169 (Callick, 2012). The reason why Australia should be worried and become involved more strongly, according to one major newspaper, is the fact that Sansha City sits right at the centre of a ‘freight freeway’, through which ‘two-​ thirds of Australia’s exports and almost half of its imports, about $273 billion worth of goods, are carried through the South China Sea’ (Callick, 2012). Like Carr’s earlier assertion and countless official reiterations of it, the article did not mention that this trade is mostly between Australia and China, and that Beijing, itself increasingly anxious about its so-​called ‘economic lifelines’, would have scant interest in disrupting them (Laurenceson, 2017; Noer & Gregory, 1996). An apparent next step in China’s strategy to control what its leaders regard as theirs, and not Japan’s, Beijing in November 2013 declared an Air Defence Identification Zone (ADIZ) over the East China Sea. Foreign Minister Bishop (2013) made clear the Australian ‘opposition to any coercive or unilateral actions to change the status quo’, while calling in the Chinese ambassador for further explanation. This led to a spat with China and brought the strengthening defence ties of the Abbott with the Abe government of Japan into focus (McGrath, 2013). At the same time, mostly due to fears that the ADIZ’s curtailing of the freedom of overflight might establish a precedent, calls for Australian FONOPS through the newly established ADIZ, and public demonstrations of ‘support for allies who do so to avoid the emergence of a new status quo where China rules its surrounding seas’, became louder (Slevison, 2015). Assertions that ‘inaction has the potential to encourage China to declare a South China Sea ADIZ in the foreseeable future’ (Slevison, 2015) added urgency to these calls. The revelation in September 2015 that China had been reclaiming land and building large facilities on several disputed rocks and reefs in the Spratlys caused widespread consternation and, unsurprisingly, provoked strong criticism. While asserting Australia’s ‘legitimate interest in the maintenance of peace and stability in this part of the world, including the preservation of respect for international law, unimpeded trade and freedom of navigation’, the Australian Minister of Defence expressed ‘opposition to any coercive or unilateral actions to change the status quo’ in the South or East China seas, including ‘any large-​scale land reclamation activity’ and the prospect of the artificial structures’ militarisation (Andrews, 2015). This rekindled talk about the possibility that the Abbott government would send a surveillance plane over these facilities, thereby conducting Australia’s own FONOPS. Rory Medcalf (2015), a prominent proponent of a moderately assertive stance, also known for his advocacy of the ‘Indo-​Pacific’ geopolitical concept, argued that ‘Australia cannot pretend that what happens in the South China Sea is none of its business’ because: As a middle power, Australian security ultimately depends on a rules-​ based regional order. … Damage to that order through coercion or unilateral assertiveness as we have seen in these contested waters in recent years, equates with damage to Australian interests. Australia’s lifelines,

170  Christian Wirth its trade routes to and from some of its top trading partners, including China but also Japan and South Korea, run through or close to those waters –​as do the sea lanes on which the commerce of much of the world depends. Yet, Hugh White, a former defence official well known for his advocacy of a new, so-​called concert of powers giving China more and better seats at the tables of world politics, pointed out that it was not clear whether China’s land reclamations were a threat to the FoN or to international law, and that the confrontations resulted from the US and China competing over primacy in the Asia-​Pacific. For him, the debate was about the US and Australia trying to figure out whether or not, and how, to use these islands as a means to draw a ‘red line’ for China’s growing regional influence (White, 2015). Similarly, Sam Bateman (2015a), a former naval officer and one of the foremost experts on Asia-​Pacific maritime affairs, opined that: Australia’s direct national interests aren’t involved with overflight in the South China Sea in the same way as they are with navigation and overflight through the [Indonesian and Philippine] archipelagos to our near North. Furthermore, China hasn’t made clear which restrictions on navigation and overflight it’s imposing around features it occupies in the South China Sea. … As well as provoking China, that gesture would be seen in the region as Australia simply acting once again as a ‘deputy sheriff’ to the US in the region. In line with legal experts at the US Naval War College (Dutton & Kardon, 2017), Bateman also pointed out that the issue is politically and legally complex because:  US FONOPS in that area seemed to focus only on Chinese actions; the legal status of the challenged features –​some installations would only have 500 m safety zones, while others, classified as mere rocks, only constitute 12 NM territorial seas, etc. –​is unclear; most features are claimed by several coastal states; naval presence in territorial seas may violate the laws on innocent passage; and FONOPS risk provoking dangerous manoeuvres that may endanger the safety of seafarers if not performed at the highest levels of seamanship (Bateman, 2015b). Indeed, a year later, an arbitration panel in The Hague denied several of the features claimed by China and patrolled by the US the legal status of a ‘rock’, and thereby ruled that they would not even be entitled to a 12 NM territorial sea (PCA, 2016, p. 472). The US had been engaging in some sort of legal shadow-​boxing. The judges’ differentiated reasoning on a limited set of legal questions notwithstanding, the award had a profound impact on the political debate. As Nick Bisley (2017) had already pointed out before it was handed down, the general mood was that ‘something must be done’ against the expanding Chinese presence in the South China Sea. Despite that most experts deemed their legal utility at best unclear (Raymond, 2016), and that the prospect of

The making of order in the ‘Indo-Pacific’  171 rising tensions was assured, this ‘something’ to be done was the establishment of Australia’s own, or participation in Washington’s, FONOPS programme. Exponents of the Labor opposition, in particular, deemed the government’s policy of continuing routine surveillance operations (Greene, 2018) and enhanced bilateral and multilateral naval diplomacy insufficient (Massola, 2016). Strikingly, these arguments for a more ‘robust’ military posture, while triggered by Chinese violations of (specific interpretations of) UNCLOS, were not made with reference to international law, but to geopolitics. Just as the Defence Minister’s concerns with the FoN seemed to rest foremost with alliance politics  –​that is, a particular notion of international order  –​when pointing out that it was the joint Australian–​US–​Japanese condemnation of Chinese actions that mattered most, Medcalf (2016, p. 10) noted that ‘the tensions in the South China Sea are testing American resolve, credibility and diplomatic dexterity’, and that ‘the United States is the ally on which Australian security deeply depends, and therefore these are tests for Australia too’ (Medcalf, 2015). Rothwell (2017) was even clearer in this when he stated that the US FONOPS’ ‘primary purpose’ is ‘to protect the mobility of US forces and to ensure that they can move freely between oceans, which has been critical for the maintenance of US naval hegemony’, and that ‘Australia wouldn’t wish to be constrained in its naval movements in coming to the aid of regional friends and allies because of China’s position on warship navigation through the South China Sea’. In fact, because of the ways in which they are conducted, FONOPS could well produce the opposite of the intended effects, including in terms of coastal states’ compliance with UNCLOS and the recognition of territorial claims (Bateman, 2017; White, 2017). This prevalence of geopolitics explains the vast exaggeration of the importance of ‘Indo-​Pacific’ sea lanes for the Australian and US economies, for instance, by the defence minister (Andrews, 2015). Since US-​ bound commerce is, at best, marginally reliant on Southeast Asian waterways, and since Australia relies on them only for a fraction of its trade, overwhelmingly for iron ore and coal exports from Western Australia –​to the very China that is supposed to threaten them (Laurenceson, 2017) –​the assertion of the FoN in the ‘Indo-​Pacific’ cannot but refer to the FoN for warships. After all, this geographical term long stood for the theatre of operation of the US Pacific Command, which was renamed the US Indo-​Pacific Command in June 2018. Moreover, the ‘Indo-​Pacific’ brings together India, Australia, Japan, and the US, whose ‘shared democratic values’, according to the then Commander of the US Pacific Command, places them best to safeguard ‘freedom, justice, and the rules-​based system’ at the present ‘inflection point in history’ (Harris, 2017). In short, China had become an imminent threat to the established ‘liberal rules-​based order’ (Wroe, 2016). To clarify the nature of that order, and to understand why Australian authorities see it as worth defending with military force, it is necessary to put the notion of order into the broader historical and security political context.

172  Christian Wirth

Debating changes and challenges to international order East Asian seas have long been of interest to Australian policymakers. Yet, through the invocation of threats to the FoN as a recent reframing of sea lane security, the post-​Cold War discourse reveals a deepening linkage between maritime disputes and geopolitically defined notions or order. Consequently, international order has been portrayed as in need of and amenable to defence by military means, the increasing use of attributes such as ‘rules-​based’, ‘norms’, ‘liberal’, and ‘freedom’ notwithstanding. This development went hand in hand with the geographical expansion of strategic interests. Since the Imperial Japanese forces’ heavy bombing of Darwin and midget submarine intrusions into Sydney Harbour, the main concern had been the prevention –​ and pre-​emption –​of hostile forces’ overcoming of the so-​called air–​sea gap and establishing bridgeheads on Australian soil. The fears about a resurgent Japan and the spread of communism induced Australia and New Zealand to seek formal security guarantees from the United States, which led to the conclusion of the 1951 ANZUS alliance treaty (DoS, n.d.). Thus, defence planners have consistently asserted that ‘the ability to protect our maritime and air approaches is fundamental to our sovereignty and security’ (DoD, 1987, p. 1). Geographically, the location and delineation of these ‘approaches’ remain ambiguous. Yet, the use of the term suggests an operational definition that excludes the Malacca Straits and the South China Sea.9 By way of its ‘old world’ military ties, however, Australian interests reached significantly beyond the air–​sea gap that separates Australia from ‘Asia’ and the rest of the world. As the 1987 Defence White Paper explains, ‘the United States gains information important to its global maritime intelligence system from Australian surveillance and intelligence gathering activities in an area extending from the eastern Indian Ocean to the South-​West Pacific’ (DoD, 1987, p. 4). This mainly refers to Operation Gateway that the Royal Australian Air Force (RAAF) has been conducting, foremost against the Soviet presence in Vietnam, out of Butterworth Air Base in Malaysia. Canberra maintains access to this location through the FPDAs, which had been established among the United Kingdom, Australia, New Zealand, Malaysia, and Singapore after the withdrawal of the British from ‘East of Suez’ in the late 1960s, until the present day. Still under the impression of the partial troop withdrawal from East Asia following President Nixon’s Guam doctrine, they emphasized that the alliance provides us with confidence that assistance would be forthcoming in the event of substantial military attack on Australia or its direct interests. Moreover, United States action would be most unlikely to await the emergence of a major threat. The dramatic strategic changes that would precede such a threat would inevitably impinge on important interests the United States has in the region. (DoD, 1987, p. 26, emphasis added)

The making of order in the ‘Indo-Pacific’  173 In short, Australia’s security has been perceived as constituted by the US’s military presence in the region, and US perceptions of impending threats served as a kind of early-​warning system for strategic and tactical threats to Australia. In this context, the East and South China seas have been of indirect interest to Australian officials. The end of the global Cold War affected this perception in that it accorded more weight to multilateral institutions complementing the alliance. The 1994 Defence White Paper, somewhat ambiguously, if not contradictorily, asserts that: ‘alliances, regional links and global security arrangements enhance our security environment by making attacks on Australia less likely’, and, at the same time, ‘contribute to efforts to minimise the role of armed force in international affairs and establish credible, rules-​based regimes for conflict resolution’ (DoD, 1994, pp. 3 and 194, emphasis added). While maintaining the focus on the air and sea approaches and striving to continue the Australian military presence in Malaysia, territorial disputes in the South China Sea were briefly mentioned as an ongoing source of regional tensions. Yet, the White Paper emphasized the –​for a middle power –​particularly important role of international organizations for conflict prevention, management, and resolution as they foster an ‘orderly international system in which agreed norms of conduct constrain the use of force’ (DoD, 1994, p. 16). This liberal institutionalist perspective also informed the Australian approach to China, which re-​emerged as a major actor on the stage of international politics:  ‘As with other regional countries, we seek a better understanding of China’s strategic perceptions and intentions, and … encourage China to participate fully in regional and other multilateral security discussions’ (DoD, 1994, p. 91). However, to conform with the structural realist emphasis on military power, the US–​Australia alliance gained in importance, too, because it provided the stable ground from where Australian policymakers sought to manage the shifting international order: ‘Increasingly, as we seek security in and with Asia, we will value our alliance with the United States not just for the contribution it makes to Australia’s own defence, but also for its broader contribution to regional security’ (DoD, 1994, p.  95, emphasis added). Accordingly, enduring ‘shared values’, written back in time, replaced the common Soviet threat as a legitimating argument: ‘The relationship, however, is founded on our shared interests in a stable and secure Asia-​ Pacific region and values and traditions which pre-​date the Cold War and will endure long after it’ (DoD, 1994, p. 95). By the year 2000, however, concerns about great-​ power conflict grew and Australian officials started to emphasize the stabilizing role of the US, not only for upholding global security order alongside the UN, but also for securing regional stability, that is, the ‘Asia Pacific security system’ (DoD, 2000, p. 10). As a consequence of this increasingly discernible bipolar vision, Washington’s other Asia-​Pacific alliances came into focus, and the strategic gaze extended beyond the traditional horizon of the maritime approaches. According to the White Paper, ‘the strength of US security commitments to

174  Christian Wirth Japan, and the scale of US military deployments in Northeast Asia, which the US-​Japan relationship facilitates, is critical to maintaining strategic stability in the whole region’ (DoD, 2000, p. 18). Against the defining experience with Imperial Japanese invasion attempts and the related mythmaking around the Battle of the Coral Sea that underpins the US–​Australian defence relationship, Canberra’s acknowledgement of Japan’s new role signified an important shift. Moreover, in this fluid international order, the Australia–​US alliance ‘founded on enduring shared values, interests and outlook, as well as common sacrifices that extend back almost a century’, and imbued with ‘renewed vigour’, provided a stable reference point (DoD, 2000, p.  34). Conversely, China came to be seen as a potential threat to regional stability and, by consequence, also to Australian security: ‘We would be concerned about any major external threat to the territorial integrity of the nations in our nearer region, especially in maritime Southeast Asia, whether that threat came from outside or inside the region’ (DoD, 2000, p. 31). Likewise, the ‘ability to operate freely in our surrounding oceans, and to deny them to others’, came to be seen as critical for the defence of Australia (DoD, 2000, pp.  87–​88). Albeit implicitly, the Australian Department of Defence had introduced its own so-​called Anti-​Access Area Denial (A2/​AD) doctrine, a strategy that is often ascribed to Chinese efforts at keeping rival military forces from operating in the East China Sea (Fravel & Twomey, 2014).

The rise of the ‘Indo-​Pacific’ By 2009, perceptions of the strategic environment had changed insofar as India emerged as a stabilizing force on the strategic landscape. Amid Washington’s continued entanglements in Middle Eastern quagmires, and some doubts about the Australian role in them, the ‘end of the so-​called unipolar moment; the almost two-​decades-​long period in which the pre-​eminence of our principal ally, the United States, was without question’ (DoD, 2009, p.  9), appeared on the horizon. Thus, the explicit and diplomatically provocative question: ‘Will the United States continue to play over the very long term the strategic role that it has undertaken since the end of World War II?’ (DoD, 2009, pp. 32–​33). Consequently, the overall impression was that of an emerging increasingly multipolar global order. This entailed an optimistic, inclusive outlook on China, whose ‘political leadership is likely to continue to appreciate the need for it to make a strong contribution to strengthening the regional security environment and the global rules-​based order’ (DoD, 2009, p. 34, emphasis added). At the same time, however, defence planners attributed to the Indian Ocean greater strategic significance as a ‘global trading thoroughfare, particularly for energy supplies between Asia and the Middle East’, and expected it to ‘join the Pacific Ocean in terms of its centrality to our maritime strategy and defence planning’ (DoD, 2009, p. 37). After all, India, due to perceived shared democratic values, has consistently been portrayed as an important partner for Australia, including for ‘combating regional and

The making of order in the ‘Indo-Pacific’  175 global terrorism and maintaining a rules-​based global security order’ (DoD, 2009, p. 96). In the face of these perceived historical changes, the term ‘rules-​based order’ gained currency, while the security–​political discourse simultaneously built up, and began to project backward in time, a particular notion of order. The 2009 White Paper is the first to include an entire section elaborating why and how a ‘stable, rules-​based global security order’ must be preserved (DoD, 2009, pp. 43–​44). Although the United Nations and the UN Charter formally remained central components of this rules-​based order, the report asserted that it is the ‘global leadership role played by the United States since the end of World War II’ which has ‘provided the strategic underpinning for the post-​ war global order’ (DoD, 2009, p. 44, emphasis added). Still, the rise of ‘Asia’ necessitated a more comprehensive debate about the future of foreign and security policy. In 2012, Prime Minister Rudd’s Labor government took a proactive step and commissioned a White Paper addressing the long-​standing question of how Australia can find its place in the impending Asian Century. The report rested on the premise that the economic growth and broadening international interests of ‘Asia’s large powers, especially China and India, are changing the established strategic order’ while existing regional strategic tensions such as North Korea’s nuclear program and unresolved territorial disputes remain; Australia’s strategic landscape was seen as ‘becoming more crowded and complex’ (GoA, 2012, p. 7, emphasis added). Consequently, Canberra would ‘continue to support a greater role for Asian countries in a rules-​based regional and global order’ (GoA, 2012, p. 3). The envisioned pathways consisted of, among others: the promotion of fair representation for Asian nations in key international organisations and their encouragement to be part of, and help shape, these rules-​based institutions; support for China’s participation in the region’s strategic, political, and economic development; and working with the United States to ensure that it continues to have a strong and consistent presence in the region, ‘with our alliance contributing to regional stability, security and peace’ (GoA, 2012, p. 23, emphasis added). Thus, the dynamic and inclusive view of the ‘international system established after World War II’ (GoA, 2012, p. 72), as it brought about the ‘longest and most prosperous period of peaceful expansion ever witnessed’, would, in principle, allow for the accommodation of both Chinese and Allied interests. In practice, however, the ‘Australia in the Asian Century White Paper’ not only glossed over the serious armed conflicts that were fought in the name of preserving that very order (e.g. the hot wars in Korea and Indochina, large-​scale violence in Indonesia and Cambodia). The looming mutually assured nuclear destruction was missed as well. It also assumed that this post-​WWII order has been and remained in itself consistent, unchanging, and generally accepted among the established (‘Western’) powers. It accounted for neither the critical views that existed toward the United Nations system, including during the Global War on Terrorism campaigns and in the US Senate’s refusal to ratify UNCLOS,

176  Christian Wirth nor the generally occurring instrumentalization of international laws and institutions on the part of powerful states. The idea of a new order that the ‘Australia in the Asian Century White Paper’ brought up was neither entirely new, nor embodying ‘inclusive, rules-​ based systems’ such as it promoted them in places other than Australia (GoA, 2012, p. 205). To be sure, the idea of the ‘Indo-​Pacific’ can be seen as novel in that it rebalances the Australian strategic outlook from the Pacific toward the Indian Ocean, thus acknowledging the importance of India as a major future player (Medcalf, 2014). Yet, in raising the possibility that the ‘importance of the lines of energy supply’ makes the two oceanic spaces form a ‘strategic arc’ (GoA, 2012, p. 74), the ‘Indo-​Pacific’ concept revived a geopolitical idea that had existed since the 1930s (Haushofer, 1938). Its contemporary usage is conspicuous because it explicitly seeks to align a particular set of procedurally democratic states in their quests to promote their respective far-​reaching naval interests (Pan, 2014). The subsequent reference to the South China Sea and ‘maritime parts of Northeast Asia’, combined with a focus on Chinese compliance, situates the Australian interpretation of international law within the ‘Quad’ of like-​minded states that co-​constitutes Indo-​Pacific geopolitics (GoA, 2012, pp. 236–​237). This ambiguity, if not contradiction, in how Australian policymakers approached rising ‘Asia’ came to the fore more clearly in 2013. After the ‘Australia in the Asian Century White Paper’ made the case for Asia engagement and a recalibration of foreign and defence policies, the publication of the National Security Strategy, one year later, signified a strong push back. The definition of ‘Australia’s place in the world’ underpinning the strategy left no doubt about where the fault lines of international politics lie: ‘Australia is a liberal democracy with deeply held values. … These values influence our foreign and defence policy. Our values underpin our reputation as a responsible member of the international community, committed to a rules-​based global order’ (DoPC, 2013, p. 7). More precisely, ‘we have a fundamental interest in global rules and institutions that prevent conflict, effectively manage security threats and support the free flow of people, goods, services, ideas, capital and principles’ (DoPC, 2013, p. 20). Marginalizing other dimensions and alternate forms of order, Australia–​US military cooperation was portrayed as the sine qua non: The value of the Alliance lies not simply in its defence aspects. It strengthens our prosperity as well as our security. The United States is integral to global economic growth and security, and provides the critical underpinning to the rules-​based order that exists today. (DoPC, 2013, p. 22) Revealing the bipartisan nature of these ideas, the 2016 Defence White Paper, written under the auspices of the Liberal Party government,10 built on this notion of the rules-​based order:

The making of order in the ‘Indo-Pacific’  177 The growing prosperity of the Indo-​Pacific and the rules-​based global order on which Australia relies for open access to our trading partners are based on the maintenance of peace and stability. Over the last 70 years that peace and stability has been underpinned by a strong United States presence in our region and globally as well as active engagement by regional states in building a rules-​based order. (DoD, 2016, p. 14, emphasis added) Unlike previous defence White Papers, however, the 2016 edition explicitly mentioned territorial disputes between claimants in the East China and South China seas as sources of instability that necessitated a reassessment of Australia’s defence policy. In addition, the White Paper also pointed to China’s unruly behaviour, not just in terms of FoN, but also in other global commons like the cyber-​and outer-​space domains. Defence planners understood these frictions, which they perceive as mostly occurring between the US and China, as challenges to the rules-​based order, an order that is explicitly defined as the ‘broad architecture of international governance which has developed since the end of the Second World War’ (DoD, 2016, p. 45). In other words, the more change Australian policymakers perceived, the stronger their inclination to imagine a pre-​existing static notion of order in need for stabilization.

Imagined stability and attempts to arrest change The heightened anxieties that resulted from perceived challenges to the imagined 70-​year-​old stable order gave rise to an intensified search for and stronger emphasis of conservative ideas about Australianness while producing outflow onto foreign and security political strategizing. From the 2017 Foreign Policy White Paper, in particular, it becomes apparent that the government’s concern with the liberal rules-​based order –​according to the Prime Minister, Australia is facing the ‘most complex and challenging geostrategic environment since the early years of the Cold War’ –​stems in large part from the perception that ‘Australian values’, including ‘our way of life’, are being threatened by global change, such as ‘continued dynamism and growth in Asia’ (GoA, 2017, pp. iii and v, emphasis added). As he and the foreign minister asserted, the government must remain committed to those values in order not to continue losing ‘confidence’ in their nation’s prosperous future. But while the White Paper warns about the challenges to the ‘international rules designed to help maintain peace and minimise the use of coercion’, it nevertheless prescribes means of coercion as primary tools for upholding this peaceful order when stating that ‘Australia’s security is maintained primarily through our own strength, our alliance with the United States and our partnerships with other countries’ (GoA, 2017, p. 24). Despite denying to impose values on others, the White Paper explicitly asserts that Australian ‘national power’ and the alliance with the US, whose interests are understood as inherently congruent with the international order, are

178  Christian Wirth instrumental for securing ‘liberal institutions, universal values, and human rights’ such as they ‘serve to advance our national interests’ worldwide (GoA, 2017, pp. 2, 11). Australian policymakers reconcile these tensions among conflicting views and rival agents of order  –​for instance, when they surfaced most visibly when the UN Security Council did not approve the US-​led invasion of Iraq in 2003  –​through a geographical conception of interlocked strategic interests: ‘a stable rules-​based global security order increases the likelihood of strategic stability in the Asia-​Pacific region, which in turn makes more likely the maintenance of a secure immediate neighbourhood and ultimately a secure Australia’ (DoD, 2009, p.  45). In an unambiguous reference to the Cold War era when the ‘indivisibility of freedom’ (Weldes 1999, p. 43) provided an all-​encompassing cognitive framework for engaging the world out there, overseas, Canberra maintains an indivisible conception of security and of order. This view of international order is not only unusual because its inscription of continuity, from the 1950s to the present, runs counter to the conventional understanding of the Sino–​US rapprochement of the 1970s, the collapse of the Soviet Union in 1990 as epochal geopolitical, and the adoption of capitalism in China as monumental political economic turning points. This view of order linked to Australian security is also problematic because it invariably requires the securing of world order as a whole. In times of rapid change, however change may be characterized, any static and indivisible conception of order will inevitably be challenged or threatened. Since these threats are first detected and defined –​if not caused –​by security agencies, the military dimension of order occupies front and centre on the cognitive horizon. Thus, the foreign and security political discourse marginalizes alternate conceptions of order and change, including interpretations of China’s rise:  as the world’s factory and the world consumer, its demand for vast amounts of Australian coal and iron ore may well have been securing the heavily resource-​export-​dependent country’s prosperity and social stability –​the ‘Australian way of life’ –​especially during the 1997 Asian and the 2008 global financial crises. In that threats such as those to the FoN pillar of the ‘post-​WWII strategic order’ (Bishop, 2016, p. 454) maintain Australia’s relative ideational distance from approaching ‘Asia’, they perpetuate its insularity. This insularity, in turn, mandates attachment to the US as the ‘leader of the free world’ (Farnsworth, 2011; Gillard, 2011) and enables striking continuity in Australian foreign and security politics: The Government is [i.e. remains] committed to working with the United States and like-​minded partners to maintain the [70-​years-​old] rules-​based order by making practical and meaningful military contributions where it is in our interest to do so. Australia has a long history of contributing to international efforts to maintain the rules-​based global order [including the Korean War, the Vietnam War, the wars in Iraq, Afghanistan, Syria,

The making of order in the ‘Indo-Pacific’  179 etc.] and address shared security challenges including the threat of terrorism and state fragility. (DoD, 2016, p. 46) This insight explains why Australian authorities are preoccupied with the Chinese threat to ‘peace and stability, respect for international law, unimpeded trade and freedom of navigation and overflight’ in the ‘Indo-​Pacific’ (DoD, 2016, p. 57), despite that Australian national interests defined in terms of its territorial integrity and economic prosperity are not at stake, and despite that geopolitical competition weakens international law and hampers peaceful dispute resolution. The temporal mismatch that, not always but often, exists between Chinese actions and rising Australian threat perceptions corroborates this finding. While the central tenets of the rules-​based order and its challenge through the emergence of China (and India) appeared explicitly in the 2009 Defence White Paper, the cognitive framework for the interpretation of Chinese actions in the maritime sphere not only predates the escalation of the South China Sea disputes between 2012 and 2014. Australia’s so-​called legitimate interest in the South China Sea has its roots in Cold War security politics, and the concern with the FoN for Australian warships in the context of the changing international order can be traced back at least as far as the Defence White Paper of 2000 (DoD, 2000, pp. 87/​88). In other words, the prevailing views of order, including the rules and norms that constitute it, are of a distinctly subjective nature.

Conclusion If we seek to better understand competing conceptions of order, perceived challenges to those orders, and pertaining policy responses, the relational and subjective nature of order requires us to re-​politicize international law. That is, we have to recognize the historical context as well as the inherently political character of the making, maintenance, and unmaking of legal rules and norms. The prime example is Grotius’s seminal Mare Liberum, which he had published in 1609 to defend the Dutch Imperial fleet’s freedom to sail, trade, and police the Indian and Pacific Oceans –​that is, to assert the naval power’s ‘freedom of navigation’ in the ‘Indo-​Pacific’ of the time. Others, like the Englishman John Selden with his Mare Clausum and the Portuguese Serafim de Freitas in De iusto imperio Lusitanorum Asiatico [On the Just Empire of the Portuguese in Asia], responded in kind. The political nature of the so-​ called rules-​based order becomes apparent (1) in the fact that the Freedom of Navigation, as one of its ostensible principal pillars, in practice refers to the freedom of navigation for a specific country’s warships; (2) in that the Chinese threat to the FoN mainly stands for a diffuse ‘Asian challenge’; and (3) in that upholding the Freedom of Navigation essentially refers to the perpetuation by military means of the idealized (imagined) prosperous and universally

180  Christian Wirth beneficial US-​led ‘Western’ dominance that justifies specific Australian foreign and security political practices and undergirds a particular form of the state. This insight is corroborated by the continuity in how Australian officials have been defining security political imperatives over the last three decades. In particular, the logic that ‘a stable rules-​based global order serves to deal with threats before they become existential threats to Australia, and enables our unfettered access to trading routes, secure communications and transport to support Australia’s economic development’ from 2016 (DoD, 2016, p. 70, emphasis added), bears striking resemblance with the assertion in the 1987 Defence White Paper that ‘the vitality of our alliance relationship with the United States … provides us with confidence that assistance would be forthcoming in the event of substantial military attack on Australia or its direct interests’, and that ‘the United States action would be most unlikely to await the emergence of a major threat’ (DoD, 1987, p. 26, emphasis added). In other words, the rules-​based order is not only synonymous with the Australia–​ US alliance relationship and US primacy more generally. Since this alliance system will ‘deal with threats before they become existential’ to Australia, it may also well be the case that the rules-​based order, in fact (co)produces the very threat it is thought to prevent. What is more, by glossing over the epochal transformations in the last 70 years, the end of the global Cold War, the emergence of capitalist China as world factory and consumer, the rise (and fall) of regional projects, and the fragility of the financialized global economy in particular, the quest to secure the rules-​based order has potential to, at least partially, recreate the second pole of the Cold War era  –​that is, the ‘non-​ Western’ bloc, which got lost in the Soviet/​Russian and Chinese transformations and keeps on challenging long-​standing Australian worldviews by way of its very absence. Albeit Australian representations are some of their clearest manifestation, the larger question remains why Cold-​War-​era mental maps of the ‘West’ and their solidification in formal institutions have largely endured beyond the epochal changes of the 1990s, and continue to cause tensions among other capitals of the Asia-​Pacific. This includes the persistence of mirror images among those decision-​makers, like the Chinese leadership, who see themselves facing this monolithically perceived ‘West’. Moreover, the finding that various state actors promote their very own conceptions of rules-​based orders by deploying universalist conceptions of norms, which are only loosely related to the UN Convention on the Law of the Sea, raises the questions whether and what new rules, norms, and orders may indeed emerge from strategies that further national power and contestations over expanded spheres of influence.

Acknowledgements The author would like to thank Ed Frettingham, Yih-​jye Hwang, Hitomi Koyama, and the anonymous reviewers for their helpful feedback on earlier drafts.

The making of order in the ‘Indo-Pacific’  181

Notes 1 This text is a reproduction, with minor updates, of an article that appeared under the same title in The Pacific Review Vol. 32, No. 4 (2018), pp. 475–​504. 2 These questions align with analytical perspectives that force us to take a closer look at what securitizing arguments are all about (Buzan, Wæver, & De Wilde, 1998), and Robert W. Cox’s (1981, p. 126) broader observation about the generation of knowledge (of world order) when he points out that even theoretical arguments are always for someone and for some purpose, and wedded to their time. 3 See also the 2013 special issue ‘The China Choice in Depth’, Security Challenges, 9(1), 1–​49. Retrieved from www.regionalsecurity.org.au/​ReRothwellsources/​Files/​ SC9-​1.pdf. 4 Prime Minister Keating (cited in Higgott and Nossal, 1997, p. 176) and Australian ambassador (quoted in Burke, 2007, p. 126), respectively. 5 For reactions toward rising Japan in the 1980s and ‘90s, see Morris (2010). 6 Art. 122 UNCLOS defines a semi-​enclosed sea as ‘a gulf, basin or sea surrounded by two or more States and connected to another sea or the ocean by a narrow outlet or consisting entirely or primarily of the territorial seas and exclusive economic zones of two or more coastal States’. Therefore, art. 123 stipulates special responsibilities for coastal states to cooperate in managing and ecologically preserving them. 7 According to art. 46 UNLCOS, archipelagic states are comprised of ‘islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such’ (emphasis added). 8 Due to their control over vast island territories in the Indian and Pacific Oceans, and in the Caribbean, the former imperial powers gained the most out of UNCLOS, by far (Nolan, 2013). 9 Among other documents, the indicative coverage of the Royal Australian Air Force’s (RAAF) Jindalee Operational Radar Network over-​ the-​ horizon radar suggests a focus that includes most of the Indonesian archipelago and Papua (RAAF, n.d.). 10 See also the statements by the representatives of the Coalition Government (Bishop, 2016), the Labor opposition (Plibersek, 2016), and the Green Party opposition (Ludlam, 2016). Only the Greens’ position diverts markedly.

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8  Reflections on the awards concerning the legal status and maritime entitlement of maritime features in the South China Sea Arbitration A legal and political analysis Xu Qi

Introduction On 23 January 2013, in terms of Article 287 and Annex VII to the United Nations Convention on the Law of the Sea (UNCLOS or Convention), the Philippines unilaterally initiated compulsory arbitration against China (the SCS Arbitration), “with respect to the dispute with China over the maritime jurisdiction of the Philippines in the West Philippine Sea (WPS)” (Department of Foreign Affairs of the Philippines 2013). However, on 19 February 2013, China formally rejected the arbitration (Ministry of Foreign Affairs of the People’s Republic of China 2013). On 25 April 2013, the President of the International Tribunal for the Law of the Sea (ITLOS) appointed arbitrators, and the Arbitral Tribunal (the Tribunal), with five arbitrators, was established (ITLOS 2013a). On 7 December 2014, China issued a Position Paper on the matter of Jurisdiction in the SCS Arbitration, for the purpose of demonstrating that “the Arbitral Tribunal established at the request of the Philippines for the present arbitration does not have jurisdiction over this case” (People’s Republic of China 2014, para. 2). On 29 October 2015, the Tribunal issued an Award on Jurisdiction and Admissibility (JA). Faced with the defragmentation of 15 submissions by the Philippines, the Tribunal declared it had jurisdiction over seven claims of the Philippines, and whether it exercised jurisdiction over the remaining eight submissions should be conjunct with merits to be determined (Permanent Court of Arbitration 2015d, para. 413). On 12 July 2016, the Tribunal issued the Merits Award (MA) on the SCS Arbitration (Permanent Court of Arbitration 2016). The ruling was focused on three aspects. First, there was no legal basis for China to claim historic rights to resources within the sea areas falling within the ‘nine-​dash line’ (Permanent Court of Arbitration 2016, paras. 278, 1203 B(2)). Second, none of features in the Spratly Islands (Spratlys, Nansha Islands) and Scarborough Shoal (Huang Yandao) generate exclusive economic zones (EEZs) or a continental shelf (CS; Permanent Court of Arbitration 2016, paras. 643–​648, 1203

The South China Sea Arbitration  189 B(3)–​(7)). Third, Chinese actions in the SCS violate the Philippines’ sovereign rights in its EEZ, cause damage to the marine environment, and aggravate and extend the disputes between the parties (Permanent Court of Arbitration 2016, paras. 716, 757, 814, 992–​993, 1043, 1109, 1181, 1203 B(8)–​(16)). Such a sweeping ruling favoured almost all the Philippines’ claims. Regarding certain maritime features occupied by China, the Tribunal declared that none in the Spratlys and Scarborough Shoal constituted an island entitled to territorial sea (TS), EEZ, or CS within the meaning of Article 121 of UNCLOS (Permanent Court of Arbitration 2016, paras. 613–​626). Those features are either rocks only, with TS or low-​tide elevations (LTEs), or submerged features without any maritime zones, under the Convention. Notably, in pursuit of seeking arbitration to resolve this bilateral maritime dispute, Sino–​Philippine diplomatic relations were underdeveloped, and the Philippines was influenced by geopolitical changes in the SCS. Additionally, the US, as an external great power, diplomatically and militarily intervened in this region, causing China–​ US geopolitical competition to incrementally heat up, resulting in regional insecurity and instability. Accordingly, from legal and political perspectives, this chapter offers some reflections on the Tribunal’s decision regarding legal status and maritime entitlement of certain maritime features. First, the chapter analyses the Tribunal’s ruling at the jurisdictional stage. Second, it examines the Tribunal’s MA and gives some reflections on its legal reasoning. Both sections point to the deficiencies of the Tribunal’s analysis, arguing that the dispute concerning legal status and maritime entitlement of specific features was concerned with territorial sovereignty and maritime delimitation. Third, under the geopolitical framework of the SCS, the chapter reflects on the political impacts of the arbitration upon Sino–​Philippine relations and great-​power politics. Fourth, some concluding remarks are made.

Reflections on the tribunal’s JA concerning the legal status and maritime entitlement of certain maritime features In this section, the chapter discusses two jurisdictional issues to be addressed by the Tribunal. First, whether or not a dispute within the meaning of international law exists must be established. Second, if it exists, it is necessary to determine whether or not such a dispute concerns the interpretation and application of the Convention. In the Mavrommatis case, the International Court of Justice (ICJ or “the Court”) defines a dispute as “a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons” (Permanent Court of International Justice 1924, 11). Such a disagreement needs to show “that the claim of one party is positively opposed by the other” (International Court of Justice 1962, 328). Additionally, the ICJ clarifies that “it is for the Court itself to isolate the real issue and to identify the object of the claim” (International Court of Justice 2016, para. 51). Furthermore, “a link must exist between the substantive provisions of the

190  Xu Qi treaty invoked and the dispute”, otherwise “States could use the clause as a vehicle for forcing an unrelated dispute with another State” (Koroma 2011, 185, para. 7). Therefore, the ICJ has laid out some standards for not only the Court itself but also other international courts or tribunals to identify the existence of a dispute. Whether a legal dispute exists in the SCS Arbitration concerning Submission Nos. 3–​7 The Tribunal was aware of previous case law and recalled the jurisprudence concerning the concept and criteria of the existence of a dispute under international law (Permanent Court of Arbitration 2015d, paras. 149–​150). In the sections that follow, some observations on how the Philippines and the Tribunal dealt with China’s position regarding the rest of the submissions in question are given. In Submission No. 3, Scarborough Shoal, which constitutes part of the Zhongsha Islands, is claimed to fall within China’s sovereign territory as well.1 To prove China has established its position of entitlement to Scarborough Shoal, three bilateral diplomatic documents are considered by the Philippines as evidence (Permanent Court of Arbitration 2015c, 13–​14; Republic of the Philippines 2014, para. 7.25). However, it is revealed that China is strongly opposed to the Philippines’ infringement on the former’s persistent sovereignty over Scarborough Shoal, albeit without providing information concerning the status and maritime entitlement of that feature. Though China stated that Scarborough Shoal was “not a sand bank but rather an island”, this does not mean that China denies this feature to be a “rock”, since “rock” falls into the category of “island”, as indicated by Stefan Talmon (Permanent Court of Arbitration 2015b, 137; Talmon 2016, 320–​321). Therefore, all evidence fails to prove that a dispute exists concerning maritime entitlement generated by Scarborough Shoal (Gau 2017, 213). The Tribunal should have found there was no dispute in Submission No. 3. In Submission Nos. 4–​7, the Philippines considers its maritime entitlements to be generated separately by individual features. Nevertheless, China claims to have sovereignty over the Spratlys and to therefore be entitled to TS, EEZ, or CS as a whole or unit (CLCS 2011; see also People’s Republic of China 2014, para. 21). Additionally, China has no position on the status and maritime entitlement of specific features but merely asserts maritime rights based on an island group (People’s Republic of China 2016). Therefore, there is no such disagreement or conflict of legal views between the two states.2 Concurrently, the Philippines erroneously modified China’s official position, stating that the “Nansha Islands are fully entitled to … ” in lieu of the “Nansha Islands is fully entitled to … ” (Permanent Court of Arbitration 2015c, 4, 11; Permanent Court of Arbitration 2015b, 29, 137; CLCS 2011, emphasis added). Regrettably, the Tribunal also observed that the “Nansha Islands [are] fully entitled to” these rights (Permanent Court of Arbitration 2015d, paras.

The South China Sea Arbitration  191 160, 169). However, as observed by Sienho Yee and Stefan Talmon, China’s stance was wrongly understood as “treating the islands and reefs as separate units” and as “constru[ing] the existence of a dispute concerning the status and maritime entitlements of the nine individual maritime features” (Talmon 2016, 317, 324–​328; Yee 2016, 225). Thus, these submissions are unable to reflect the existence of a legal dispute, and should be held inadmissible (Gau 2016, 424–​426). Prior conditions are not satisfied under Section I of Part XV of the UNCLOS Antonios Tzanakopoulos points out that Section 1 of the Convention is “the first obstacle to engaging in compulsory dispute settlement under the Convention, as it allows states parties to ‘circumvent’ the system by agreement” (Tzanakapolous 2017, 2). Under Article 281, compulsory procedures apply only where such means have not settled the dispute and the agreement does not exclude any further procedure. Article 283 imposes an obligation to expeditiously exchange views regarding modes of dispute settlement. Supposing a legal dispute exists in Submission Nos. 3–​7, the Tribunal has to determine whether prior conditions are met or not. In the Southern Bluefin Tuna case, the Tribunal concluded that the absence of an express exclusion of any procedure in Article 16 is not decisive (ITLOS 2000, paras. 57–​59).3 The Tribunal in the Barbados v. Trinidad Tobago case decided that an ad hoc agreement accords with Article 281, but its exact meaning remains ambiguous (Permanent Court of Arbitration 2006, 205–​ 206; Klein 2016, 406; Klein 2017, 337). Nevertheless, the Philippines stated that the Declaration on the Conduct of Parties in the South China Sea (DOC) and other bilateral agreements with China are not regarded as legally binding but political documents, without express exclusion of compulsory procedures (Permanent Court of Arbitration 2015b, 9–​20, 22; Republic of the Philippines 2015, para. 26.60–​26.59, 26.25–​26.68; Republic of the Philippines 2014, para. 7.44–​7.77). The Tribunal reached the same conclusion (Permanent Court of Arbitration 2015d, paras. 212–​229). However, this conclusion is inconsistent with the travaux préparatoires of Article 281, since “it does not actually require any sort of formality or even instrument in order to operate”, and the “legally binding force of an agreement is not necessarily contained therein” (Tzanakapolous 2017, 9).4 Furthermore, in terms of the Genocide case, the word “undertake” in paragraph 4 of the DOC explicitly indicates that both parties are “to bind themselves to accept an obligation”, “to resolve their territorial and jurisdictional disputes through consultations and negotiations” (ASEAN 2002; International Court of Justice 2007, para. 162). Additionally, a Joint Statement in 1995 between the two countries declared “eventually negotiating a settlement”, in which the word “eventually” meant that negotiation was the final and only way to address bilateral disputes. However, the Tribunal simply neglected this issue. As a result, Natalie Klein observes

192  Xu Qi that “the approach to Article 281 runs the risk of denuding agreed dispute settlement provisions in many oceans-​related treaties of proper effect” (Klein 2017, 340). The obligation to exchange views in Article 283 indirectly refers to the obligation to negotiate the peaceful means by which the dispute should be settled (Aznar 2014, 245).5 In the SCS Arbitration, such negotiations require a “genuine attempt” by the Philippines to engage in discussions with China (International Court of Justice 2011, para. 157). Regarding Submission No. 3, the Philippines invoked China’s diplomatic Statement in 1995 (Republic of the Philippines 2014, para. 7.88). However, China explicitly declared “the issue of Huangyan Dao is an issue of territorial sovereignty”, without involving its status and maritime entitlement (Permanent Court of Arbitration 2015b, 29). Consequently, Philippine evidence failed to prove that the two parties exchanged views on this issue. Regarding Submission Nos. 4–​7, unilateral statements were invoked by the Philippines, but provided no references to China’s opinion (Permanent Court of Arbitration 2015b, 29). Accordingly, the evidence seems insufficient to demonstrate that the two parties have carried out meaningful negotiations on Submission Nos. 3–​7. Though the Tribunal did not examine whether the Philippines had exchanged views with China on the subject matter of each submission, it did find “extensive record of communications” between the two states and that the requirements of Article 283 had been met (Permanent Court of Arbitration 2015d, para. 343). However, such a decision appears not to be consistent with the wording of Article 283, since a specific dispute rather than a broad or general dispute is required (Talmon 2016, 353). Jurisdictional obstacles to the Tribunal’s jurisdiction: Sovereignty and maritime delimitation Article 286 stipulates that the application of Section 2 of the Convention must be subject to Section 3, including a series of limitations and exceptions. A court or tribunal under Part XV of the Convention has no jurisdiction ratione materiae over sovereignty disputes (Yee 2014, 686, 688–​689; Talmon 2016, 329; Tzeng 2017, 3). Additionally, states can decide to opt out of compulsory procedures by making a declaration according to Article 298(1)(a)(i). China made a declaration in 2006 to exclude itself from compulsory procedures resulting from disputes concerning matters such as historic title and sea boundary delimitation (United Nations Oceans and Law of the Sea Division for Ocean Affairs and the Law of the Sea 2020). Accordingly, whether the Tribunal has properly addressed exceptions concerning Submission Nos. 3–​7 is examined. Determination on legal status and maritime entitlement of insular features fragments China’s sovereignty over the Spratlys as a single unit Articles 13 and 121, as the Philippines claimed, were concerned with a particular or insular feature (Permanent Court of Arbitration 2015a, 80–​81;

The South China Sea Arbitration  193 2015b, 3). Contrarily, China regarded the Spratlys as a whole, claiming TS, EEZ, and CS from a group of features (People’s Republic of China 2014, para. 19). The Philippines misrepresented China’s position and broke the single unit into separate individual features. Therefore, Submission Nos. 4–​ 7 fragmented or dissected China’s sovereignty over the Spratly Islands as a single unit (People’s Republic of China 2014, para. 21; Permanent Court of Arbitration 2015a, 86–​89). Meanwhile, Scarborough Shoal forms part of the Zhongsha Islands over which China also claims sovereignty and TS, EEZ, and CS as a single unit. Treating Scarborough Shoal as an insular feature also dissembles China’s sovereignty over the Zhongsha Islands as a unit. The capability of appropriation over LTEs, and that LTEs occupied by China are part of the EEZ and CS of the Philippines, constitute issues of territorial sovereignty With respect to Submission Nos. 4–​7, three insular features were considered as LTEs and “incapable of appropriation by occupation or otherwise”. Doing so amounts to rejecting China’s exercise of territorial sovereignty over these features. Original or historic title has also been recognized by international courts and tribunals as a factor in claiming territorial sovereignty (International Court of Justice 1953, 53–​57; 1975, 42–​43; 1992, paras. 564–​ 565; Permanent Court of Arbitration 1998, paras. 37–​45). Therefore, no capability of appropriation by other means would possibly infringe on China’s historic title claim over maritime features in the Spratlys as a unit. The Philippines considered it “crystal-​clear” that LTEs did not constitute land territory and were not subject to appropriation (Permanent Court of Arbitration 2015a, 90). However, in the Qatar v. Bahrain case, the Court held an unclear position on whether or not LTEs could be appropriated.6 In the Nicaragua/​Columbia case, the Court directly concluded that “low-​tide elevations cannot be appropriated” without any reasons (International Court of Justice 2012, paras. 37–​38, 103, 183).7 Moreover, the Court did not rely on UNCLOS to reach such a conclusion, but on general international law. Accordingly, this case merely verifies that the capability of appropriation over LTEs constitutes an issue of sovereignty under general international law (Yee 2014, 702; Talmon 2016, 342). In the SCS Arbitration, the real purpose of Submission No. 4 was to ask the Tribunal to determine that the capability of appropriation over three LTEs was to derogate China’s sovereignty over these features while justifying the Philippines’ sovereignty over them.8 Apart from that, the Philippines regarded itself as the only country capable of exercising sovereign rights over Mischief Reef and Second Thomas Shoal (Republic of the Philippines 2015).9 However, Stefan Talmon observes that “a maritime feature can either be ‘part of’ the EEZ and continental shelf of a State or it can be under the territorial sovereignty of another State –​it cannot be both” (Talmon 2016, 350). Hence, China’s sovereignty over two features that constitute indispensable parts of the Spratlys as a single unit is fragmented and derogated, given any favourable decision made by the

194  Xu Qi Tribunal. It should have declined to exercise jurisdiction over Submission Nos. 3–​7, as these submissions represent the nature of the dispute as an issue of territorial sovereignty and go beyond the Tribunal’s jurisdiction. The term “concerning” or “relating to” should be interpreted in good faith In the M/​V Louisa case, ITLOS observed that the use of the term “concerning” in the declaration indicates that the declaration does not extend only to articles which expressly contain the word “arrest” or “detention” but to any provision of the Convention having a bearing on the arrest or detention of vessels. (ITLOS 2013b, para. 83)10 In the Aegean Sea Continental Shelf case, the Court determined that “a dispute regarding entitlement to and delimitation of areas of continental shelf tends by its very nature to be one relating to territorial status” (ITLOS 2013b, para. 86). Therefore, “concerning” or “relating to” indicate that Article 298(1) (a)(i) sets up a broader applicable scope than the mere contents of Articles 15, 74, and 83, or “sea boundary delimitation” itself (Yee 2014, 711; Whomersley 2016, 249). So, “concerning” or “relating to” in China’s 2006 declaration means that the declaration extends not only to articles that expressly contain the word “sea boundary delimitation”, but to any provision of the Convention relating to it. Yet in the JA, “the Tribunal mysteriously replaced ‘concerning’ with ‘over’ in its reasoning (Zhang 2016, 456). A dispute over maritime delimitation merely points to drawing a maritime boundary and helps the Tribunal narrow the applicable scope of the exception (Zhang 2016, 456). Additionally, the Tribunal neither interpreted the term “concerning” nor considered the delimitation exception to cover steps relating to demarcating a boundary line. Furthermore, the Tribunal contended that it was not requested to delimit any overlapping maritime entitlements and would not “effect the delimitation of any boundary” (Permanent Court of Arbitration 2016, para. 157). Nevertheless, this decision remains a subjective test, rather than an objective determination. One could argue that the Tribunal improperly addressed the interpretation and application of “concerning” or “relating to”. The inseparability between legal status and maritime entitlement and maritime delimitation Submission Nos. 3–​7 give rise to the question, what is the relationship between certain insular features and the delimitation process? International case law reveals that “the presence of islands may constitute a relevant circumstance in maritime delimitation” (Tanaka 2015, 206). Specifically, in the Anglo-​French Continental Shelf case, where the Arbitration Court considered whether the Channel Islands, if given full effect in delimitating the CS, would lead to

The South China Sea Arbitration  195 significantly distorting the median line. Thus, they were finally determined to only have a 12-​nautical-​mile (nm) maritime zone (Court of Arbitration 1978, paras. 196–​202). In the Tunisia-​Libya Continental Shelf case, half-​effect was given to Kerkennahs, since giving no effect would adversely impact Libya (International Court of Justice 1982, paras. 128–​129). In the Eritrea/​Yemen case, both Jabal al-​Tayr, as a small single island, and al-​Zubayr, as a group of islands, were given no effect other than the 12-​nm TS upon the median line international boundary (Permanent Court of Arbitration 1999, paras. 147–​148). In the Qatar v. Bahrain case, the Court stated that Fasht al Azm, as a remote projection, should have no effect in determining the northern boundary line to reach an equitable result (International Court of Justice 2001, para. 247). In the Romania v.  Ukraine case, the Court determined that the presence of Serpents’ Island did not constitute a relevant circumstance to adjust the equidistance line, and had no effect on the delimitation other than having a 12 nm TS (International Court of Justice 2009, para. 123). In the Bangladesh/​Myanmar case, the presence of St Martin’s Island was neither a relevant circumstance, nor did it produce any effect on the boundary line (ITLOS 2012, para. 319). In the Nicaragua v.  Columbia case, since the adjustment of the provisional median line would allow small, isolated features to have a disproportionate effect upon the boundary, Quitasueño and Serrana were only granted a 12 nm maritime zone (International Court of Justice 2012, 712–​713). As commented by Barbara Kwiatkowska and Alfred HA Soons, the legal status and maritime entitlement of a feature “forms an inherent part of maritime boundary delimitation” (Kwiatkowska and Soons 1990, 181). Potential overlapping maritime entitlements between two states should be considered by the Tribunal Some scholars state that some larger islands in the SCS generate TS, EEZ, and CS under Article 121 of the UNCLOS.11 Even the Kalayaan Island Group (KIG), which is claimed by the Philippines, consists of islands and other geographic features as well as adjacent water from relevant geological features under Article 121 of the Convention. Thus, the Philippines acknowledges the presence of islands in the Spratlys (CLCS 2011). Malaysia also stated that “it may also have overlapping maritime entitlements (including an extended continental shelf) in the areas of some of the features that the Arbitral Tribunal has been asked to classify”. This means some maritime features that China occupies may generate CS or EEZ that overlap with Malaysia’s CS or EEZ. Nevertheless, the Philippines reversed its previous position during the litigation and argued that none of the maritime features is capable of generating CS or EEZ in the Spratlys, in order to avoid any overlapping maritime entitlements with China and circumvent the delimitation exception (Republic of the Philippines 2014, para. 7.120). Such a change seemed not to be identified by the Tribunal.

196  Xu Qi Regarding Submission No. 3, Scarborough Shoal lies in the CS, beyond 200 nm of Woody Island in the Paracel Islands, which overlaps with the CS beyond 200  nm of Thitu Island, which the Philippines controls and within which Scarborough Shoal is situated.12 Relating to Submission Nos. 4–​7, the Tribunal deemed no existence of overlapping entitlements as the premise of the Philippines (Permanent Court of Arbitration 2015d, para. 402). However, the Tribunal’s basis should be determined on the MA, so any decision on the jurisdiction should not be established in the MA (de Hoogh 2016). Furthermore, all maritime features other than Gaven Reef are simultaneously located in the CS and EEZ of Itu Aba Island, occupied by China, and Thitu Island, occupied by the Philippines.13 Gaven Reef is situated in the TS of Itu Aba Island, which is located in the CS and EEZ of Thitu Island. The overlap between the TS and CS or EEZ still requires maritime delimitation.14 In addition, Johnson Reef, McKennan Reef, Hughes Reef, Mischief Reef, and Second Thomas Shoal are in the CS and EEZ of Itu Aba Island. Meanwhile, they are also in the CS and EEZ from the archipelagic baselines of the Philippines.15 Ultimately, overlapping maritime entitlements in which certain features submitted by the Philippines are located form an integral part of the delimitation framework between two countries in the SCS. To conclude, the Tribunal should be deprived of the jurisdiction over Submission Nos. 3–​7 since the real subject matter of the dispute is concerned with maritime delimitation and compulsory procedures that have been excluded by China’s 2006 Declaration.

Reflections on the Tribunal’s MA concerning the legal status and maritime entitlement of certain maritime features In the MA, the Tribunal focuses on the interpretation or application of Articles 13 and 121, then applies its interpretation to maritime features in Submission Nos. 3–​7. However, how to interpret Article 121 remains a very controversial topic in the academic literature, in particular how Article 121(3) entails “the obscurity and ambiguity” (Dubner 1995, 303; Liakopoulos 2005, 6; Song 2010, 663–​664; Anderson 2012, 310; Schofield and Wang 2012, 65; Symmons 2014, 98; Franckx 2016). In light of Article 31 of the Vienna Convention on the Law of Treaties (VCLT), the ordinary meaning of each paragraph in Article 121 shall be interpreted in good faith, in conjunction with the context, object, and purpose of the treaty. The travaux préparatoires of Article 121 is applicable as a supplementary means of interpretation. Article 121(3) constitutes an exception of Article 121 The Tribunal overlooked the role of paragraphs 1 and 2 in the interpretation of Article 121. According to Myron H. Nordquist and William G. Phalen, “except as provided for in paragraph 3” means that “the conditions disqualifying ‘rocks’ are construed narrowly since paragraph 3 is an exception to the general rule of full entitlement for islands in paragraphs 1 and 2” (Nordquist

The South China Sea Arbitration  197 and Phalen 2017, 38). Nevertheless, the Tribunal did not mention it in the MA. In the interpretation process, “the Tribunal adopted a legislative role rewriting the text of Article 121(1)” (Talmon 2017, 868). In the Nicaragua v. Columbia case, the Court made it clear that “international law defines an island by reference to whether it is ‘naturally formed’ and whether it is above water at high tide, not by reference to its geological composition” (International Court of Justice 2012, para. 37). Therefore, as an exception to a general rule of defining an island, norms relating to rocks under Article 121(3) are not predominant rules to disqualify an island. Furthermore, the term “which” is used to confine the scope of “rocks”, and indicates that rocks under Article 121 have two categories:  (1) rocks that cannot sustain human habitation or economic life of their own, and (2)  rocks that can, and thus will not be disqualified as CS and EEZ as an island. Therefore, the regime of islands under Article 121 contains island, rocks with CS and EEZ, and rocks without CS or EEZ (Charney 1999, 866; Anderson 2012, 307, 310; Franckx 2016; Jesus 2003, 579–​584; Jayaraman 1982, 168–​169). Nevertheless, the Tribunal narrowed the substantive scope of “rocks” to the first category, which is inconsistent with paragraph 3 of Article 121. The Tribunal’s self-​creation of standards on the interpretation of Article 121(3) Firstly, the term “naturally formed” manifested that “the status of a feature was to be evaluated” based on “natural condition”. This condition is confined to the beginning stage of the feature itself, not how the feature evolved in the aftermath. Moreover, it is only seen in paragraph 1 of Article 121 and is irrelevant to Article 121(3) (Talmon 2017, 873). Reasonably speaking, the interpretation of Article 121(3) does not require the condition of being natural. Regarding the ordinary meaning of “cannot”, the Tribunal emphasized it indicated “a concept of capacity” “in its natural form” (Permanent Court of Arbitration 2016, para. 483). That capacity was required to be shown “objectively” and based on historic materials as evidence (Permanent Court of Arbitration 2016, para. 484). Conversely, the capability to sustain human habitation or economic life are conditions to be examined after rocks are formed. Therefore, the term “naturally form” cannot be applied to the test of capacity. Additionally, “objectively” is also not included in paragraph 3 and belongs to a norm created by the Tribunal itself. To be continued, the term “sustain” is defined as “a qualitative concept entailing at least a minimal ‘proper standard’ ” (Permanent Court of Arbitration 2016, para. 487). Nevertheless, it cannot find support from interpreting the term itself, but takes a self-​making standard from the Tribunal. Furthermore, the exact meaning of “proper standard” does not seem unequivocal. It is the Tribunal that exercises its own discretion to define the scope, which forms a subjective determination (Nordquist and Phalen 2017, 5).

198  Xu Qi Secondly, the term “human habitation” was considered to “include a qualitative element” (Permanent Court of Arbitration 2016, para. 489). That term, in the view of the Tribunal, indicates “the non-​transient presence of inhabitants who have chosen to stay and reside on the feature in a settled manner” (Permanent Court of Arbitration 2016, para. 489). Additionally, “the term ‘habitation’ also generally implies the habitation of the feature by a group or community of persons” or “a stable community of people” “over sustained periods of time” (Permanent Court of Arbitration 2016, paras. 491, 542). Still, the Tribunal’s own interpretation merely proposes the existence of “inhabitants”, without giving any details on the form of habitation (Permanent Court of Arbitration 2016, para. 488; Talmon 2017, 877). It remains unclear how many people constitute “a stable community” or what the exact period is to define “sustained periods of time”. As regards “economic life”, the term “life” simply means “human activity”16 and is not restricted to local humans. The term “its own” was defined by the Tribunal as “the ability to support an independent economic life, without relying predominantly on the infusion of outside resources or serving purely as an object for extractive activities, without the involvement of a local population” (Permanent Court of Arbitration 2016, para. 500). A purely official or military population from the outside was disqualified as well (Permanent Court of Arbitration 2016, para. 550). However, nothing in the Convention relates to the contents interpreted by the Tribunal, and they are additional requirements created by it. Thirdly, even if the Tribunal considered that both terms were “linked” and “go hand in hand”, the term “or” means that they are disjunctive elements (Permanent Court of Arbitration 2016, para. 543). However, the Tribunal’s interpretation gives rise to the fact that human habitation and economic life of its own are mutually interdependent and inseparable. It recognizes that “a maritime feature will ordinarily only possess an economic life of its own if it is also inhabited by a stable human community” (Permanent Court of Arbitration 2016, para. 544). Moreover, “a feature that is only capable of sustaining habitation through the continued delivery of supplies from outside does not meet requirements of Article 121(3)” (Permanent Court of Arbitration 2016, para. 547). Here, the Tribunal combines two terms to verify the qualification or disqualification of rocks. From disjunctive to cumulative, the Tribunal’s interpretation is, again, self-​contradictory.17 The Tribunal’s interpretation is inconsistent with the context of Article 121(3) and with the object and purpose of the Convention Regarding the entirety of Article 121, the first two provisions are the context for interpreting Article 121(3) (see pp. 507–​511). The term “naturally” only describes the condition of a feature when it is formed at the beginning. Hence, it is not necessary for the development of a feature to be natural at every stage. However, the Tribunal incorrectly applied it as the context to interpret Article 121(3). Moreover, the Tribunal did not invoke Article 121(2) and insisted that

The South China Sea Arbitration  199 qualifying an island under Article 121(1) and (2) as a general rule of regime of islands has to rely on Article 121(3) as an exception to two provisions. Notably, none of the Preamble and Annexes are properly utilized to interpret Article 121(3). Instead, the Tribunal considered Article 13 to be useful, indicating that islands, rocks, and LTEs “exist in the context of a system of classifying features” (Permanent Court of Arbitration 2016, para. 507). However, Nordquist and Phalen suggest that “Article 121(3) was not drafted, negotiated or amended in conjunction with low-​tide elevations under Article 13” (Nordquist and Phalen 2017, 32). Therefore, such a conjunction “appears to be an attempt by the Tribunal to establish ‘rocks’ as a broader independent maritime feature classification rather than as a limited exception from the presumption of an island” (Nordquist and Phalen 2017, 33). Concerning the object and purpose, the Tribunal found that the meaning of the text of Article 121(3) is shaped by its inherent link to the concept of the EEZ (Permanent Court of Arbitration 2016, para. 512). Nonetheless, the prior two paragraphs in Article 121 as a whole must have more inherent or closer links to Article 121(3) than to the EEZ regime. Since the purposes of the EEZ and Article 121(3) are different, it seems hardly possible for the EEZ to appropriately interpret Article 121(3). Notably, the object and purpose of the EEZ are supposed to interpret articles relating to Part V of UNCLOS, rather than the regime of islands in Part VII. Although the EEZ serves people in the coastal state, there is nothing relating to the requirement of “a portion of population” in the EEZ regime. The condition of “a settled group or community” in the ordinary meaning of the term “human habitation” seeks no support from the concept of the EEZ. The Tribunal hence essentially took a further step to justify its “legislation or the revision” of Article 121(3).18 The Tribunal’s interpretation is inconsistent with the travaux préparatoires of Article 121(3) and state practice In 1975, the drafting of Article 121 was carried out by a small group of people working closely with the Chairman of the Second Committee of the Third UNCLOS, with references to various stances from different states (Nordquist and Phalen 2017, 25).19 The Chairman agreed with the draft and injected it into the single negotiating text. Notwithstanding some dissenting opinions from some states afterwards, the draft in 1975 remained unchanged until the Convention concluded. In the SCS Arbitration, the Tribunal examined voluminous resources entailing Article 121 during the negotiating process, but deemed them as “an imperfect guide” in the interpretation of Article 121(3) (Permanent Court of Arbitration 2016, para. 534). According to the interpretation of its wording, the Tribunal self-​created new conditions that only reflected the views of partial negotiating parties and were ultimately unacceptable at the time of conclusion. Consequently, the Tribunal’s interpretation appears to be inconsistent with the travaux préparatoires of Article 121.

200  Xu Qi Concerning state practice, the Tribunal’s interpretation of Article 121(3) remains doubtful, since state practice is likely to conflict with the Tribunal’s decision. For instance, Jan Mayen Island is considered a fully entitled island by the Conciliation Commission on the Continental Shelf area between Iceland and Norway and did not fall within the definition of rocks under Article 121(3), based on the description in Section III of the report (United Nations Concilitation Commission 1981, 10). The ICJ in the Jan Mayen case did not clearly indicate whether conditions of Article 121(3) were met, but recognized it was entitled to a maritime zone of 200 nm (International Court of Justice 1993, 72, 80). Currently, the only inhabitants on the island are Norwegian Armed Forces and the Norwegian Meteorological Institute (Wikipedia 2020a). In light of norms in the SCS Arbitration, military personnel and meteorologists “serviced from the outside” would not meet requirements of “human habitation” or “economic life of its own”. Therefore, Jan Mayen Island would not meet the requirements of an island, and would instead fall within the definition of a rock. Besides, Johnston Island Atoll, belonging to the US, is a deserted atoll with some low-​growing vegetation, palm trees, and no natural freshwater sources (Wikipedia 2020b). Historically, this feature was used for various military activities. Currently, economic activity in the feature is “limited to providing services to American military and contractor personnel residing on the island” (Wikipedia 2020b). “The island was regularly resupplied by ship or barge and all foodstuffs and manufactured goods were imported” (Wikipedia 2020b). Accordingly, the military personnel living in that feature basically rely on external resources or extractive activities, rather than the feature itself. The application of norms in the SCS Arbitration again disqualifies Johnston Atoll as a fully entitled island. An examination of state practice manifests that the interpretation of Article 121(3) collides with current state practice on the definition of an island, and complying with the application of this article renders such practice null and void (similar comments can be seen in Tanaka 2017, 373–​374, and Talmon 2018, 81–​87). The Tribunal misused the evidence submitted before it concerning the application of Articles 121 and 13 of the Convention This section gives an overview on the Tribunal’s application of its interpretive rules. First, it makes some observations on the Tribunal’s representation concerning China’s position. Second, some reflections are given to the Tribunal’s use of evidence in the application of Article 121(3). These two parts are closely related since the evidence adopted by the Tribunal aims to determine whether China’s claims are in accordance with rules in the UNCLOS. The Tribunal’s misrepresentation of China’s position The Tribunal admitted that China did not specifically express its position regarding all maritime features (Permanent Court of Arbitration 2016, para.

The South China Sea Arbitration  201 298). Paradoxically, the Tribunal continued to state that China claimed the legal status and entitlement in the Spratlys from specific insular features. However, this forms an erroneous representation, since China repeatedly claims that TS, EEZ, and CS from the Spratlys are a single unit. Without conflict of legal views between two states and positive opposition from China, the Tribunal is still able to address a dispute that is not supposed to exist, and find evidence for it. However, the non-​existence of a dispute makes it very difficult for the Tribunal to find relevant evidence. It remains questionable what purpose the collected evidence serves. Notably, the Tribunal found that Itu Aba, which is claimed by China, is a fully entitled island “capable of sustaining human habitation or economic life of its own” (Permanent Court of Arbitration 2016, paras. 466–​468). Nevertheless, the Philippines did not request that the Tribunal address the issue of Itu Aba. Thus, it violates the principle of non ultra petita, which means that “a tribunal should not unnecessarily decide questions of law or fact not raised by the parties to a dispute, on the theory that the tribunal’s jurisdiction is limited to deciding matters raised by the parties” (International Court of Justice 1950, 402; International Court of Justice 2002, 18–​19; Fellmeth 2009, 200). Regarding other features in the Spratly Islands, the Tribunal found that China did not make specific comments on this issue. However, besides certain features in Submission Nos. 3–​7, the Tribunal has no jurisdiction over other features that are not raised by the applicant. However, the Tribunal still made its decision. As a result, the Tribunal violated the principle of non ultra petita. The Tribunal’s misuse of evidence submitted before it Firstly, the Tribunal obtained relevant statistics on several individual features to figure out tidal patterns in the Spratlys, asserting that tidal changes in the SCS as a whole did not indicate similar changes in the central area of the Spratly Islands (Permanent Court of Arbitration 2016, paras. 313–​317). However, information from a small portion of features cannot represent “a substantial amount of information” or “sufficient evidence or understanding” (Permanent Court of Arbitration 2016, paras. 317–​319). Another question concerns the accuracy of the historical period the Tribunal refers to. It only has one year of records of the Spratly Islands and Tizard Bank. The tidal change before and after that year remains unknown. There are no sufficient data concerning the tidal change of the same feature during sustainable periods, but merely some fragmented years. However, the Tribunal observed that it was unfeasible to get more accurate and sufficient information (Permanent Court of Arbitration 2016, para. 319). Secondly, nautical surveying and sailing directions from navies relied on by the Tribunal belong to military surveys. British and Imperial Japanese surveys became public after the Second World War. Therefore, these surveys were carried out in secret without obtaining authorization from the Chinese government (Permanent Court of Arbitration 2016, para. 319). In 1933,

202  Xu Qi “France invaded and occupied nine of the Nansha Islands, including Taiping and Zhongye Island”, and the Chinese government protested publicly against the French government (Ministry of Foreign Affairs of the People’s Republic of China 2000). In 1939, “Japan invaded and occupied the islands” in the SCS (Ministry of Foreign Affairs of the People’s Republic of China 2000). It is contended that French and Japanese navy survey activities are closely linked to these incidents, which potentially infringes on China’s territorial sovereignty in the SCS. Therefore, such materials should be determined as illegitimate and less credible evidence. As indicated by Nordquist and Phalen, “the only legitimate starting point for determining the time of whether a feature is a ‘rock’ or an ‘island’ in a lawsuit is at the time the case was filed” (Nordquist and Phalen 2017, 67). So, a better option to examine the status of maritime features is to take a site visit and obtain first-​hand evidence. Thirdly, the Tribunal reviewed the backgrounds of some features that were not requested by the Philippines concerning Submission Nos. 3, 5, and 7 (Permanent Court of Arbitration 2016, paras. 401–​407). It was determined that China is not allowed to claim TS, EEZ, and CS from the Spratly Islands as a whole, based on archipelagic baselines, since China did not meet the definition of an archipelagic state (Permanent Court of Arbitration 2016, paras. 401–​407). China’s argument departed from the express provisions of the Convention (Permanent Court of Arbitration 2016, para. 576). However, this is inconsistent with state practice regarding archipelagos in international law, since outlying archipelagos far from the continent still constitute part of the land-​based territory. The Convention does not evidently stipulate a legal regime for outlying archipelagos of a continental state and precludes continental states from applying straight baselines to outlying archipelagos. Moreover, some continental states with outlying archipelagos have established straight baselines and claimed full maritime entitlement from them as a single unit, such as France, Norway, and Ecuador, which appear “to have complemented these inadequacies” (Kopela 2013, 74:4). As Hong Nong points out, “the Nansha Islands not only meet the geographical requirement for the archipelagic regime, but also the inherent requirement of political unity and economic integration, which are closely associated in both law and fact” (Nong 2018, 108). The Tribunal presumed China’s position and failed to show in the evidence how China formulated its claims based on the Spratlys as a single unit (Whomersley 2018, 203). This submission goes beyond the Philippines’ application, which violates the principle of non ultra petita. Fourthly, the way the Tribunal applied the interpretation of Article 121 to Itu Aba is also problematic. Itu Aba Island has fresh, drinkable water, as well as some vegetation, trees, and plants (Permanent Court of Arbitration 2016, paras. 594–​601). These natural conditions serve to sustain the dwelling of human beings, but the Tribunal failed to acknowledge this and resorted to historical records, after which the Tribunal finally disqualified Itu Aba as an island (Permanent Court of Arbitration 2016, paras. 615–​622). Notably, commercial and industrial activities from Japanese and French companies are

The South China Sea Arbitration  203 required to be regulated by the Chinese government in Itu Aba as a part of China’s territory. Such activities in the 1920s would have be illegal and would not have been regarded as evidence without governmental permission. In the 1930s and 1940s, France and Japan were subsequently at war with China, and they invaded maritime features in the SCS. Such activities constitute invasive activities in violation of international law and lack legitimacy and credibility.

Reflections on the political dimension of the SCS Arbitration It is admitted that the MA concerning legal status and marine entitlement of maritime features is remarkable, since it not only favours all the Philippines’ submissions, but also rules on what the Philippines did not request the Tribunal to adjudicate. After the SCS Arbitration, there was a series of discussions on how the MA legally and politically influences the SCS region (e.g. S.  Jayakumar et  al. 2018; Chinese Society of International Law 2018; Hong and Houlden 2018; Li 2018; Haiyun and Kai 2018; Hsieh 2018; Hsiung 2018; Courmont, Lassere, and Mottet 2017; Liu and Karim 2017; Franckx and Benatar 2017; Boisson de Chazournes 2016). From a legal perspective, one could argue that the Tribunal’s MA rejects China’s sovereignty over the four island groups as a single unit, as well as associated maritime entitlements derived from them as a whole in the SCS. Meanwhile, since no maritime features in the Spratlys are entitled to TS, EEZ, and CS, overlapping maritime zones between the Philippines and China, or between one of the two parties and other neighbouring states, such as Vietnam and Malaysia, largely vanish. As a result, this presents a new delimitation framework in the SCS (Asia Maritime Transparency Initiative 2020). Politically, it is observed that the MA has produced effects on great-​power politics between China and the US, as well as on the relations between China and the Philippines and between China and the Association of Southeast Asian Nations (ASEAN). In this section, attention is drawn to the political dimension, and we examine whether the MA has become a “game changer”, as named by Rebert Beckman in the SCS region (2018, 389). Reflections regarding impacts of the SCS Arbitration on great-​power politics After the MA was finally issued, two great powers, China and the US, were inclined toward increasing competition in the SCS. For one thing, in the multilateral international fora, the US, with collective support from Japan, Australia, and European allies, constantly requests China to respect and comply with the MA, and persistently criticizes the “militarization of China” of the SCS (US Department of State 2018b; G7 2018). However, China holds the position of non-​acceptance, non-​recognition and non-​compliance of the MA and strongly opposes these external statements regarding the arbitration (Ministry of Foreign Affairs of the People’s Republic of China

204  Xu Qi 2016b; Ministry of Foreign Affairs of the People’s Republic of China 2016d; Ministry of Foreign Affairs of the People’s Republic of China 2016e; Ministry of Foreign Affairs of the People’s Republic of China 2016c). However, such a verbal campaign lodged against China does not seem very effective after two years, since no ostensible steps were taken by China to enforce the MA. In addition, the US takes advantage of its military strength to increment its presence in the SCS, such as Freedom of Navigation Operation Programs (FONOPs) and intelligence, surveillance, and reconnaissance (ISR) activities of US military vessels and planes (Shicun 2018, 66–​67). According to the MA, some features, such as Mischief Reef and Second Thomas Shoal, are defined as LTEs, indicating that no TS could be generated from these features, and China cannot exercise sovereignty over the feature and its adjacent water, or its air space. Therefore, no interference from China to forbid the US FONOPs and ISR activities is allowed. For instance, during the Trump administration, both the USS John S. McCain and the USS Mustin, respectively, entered into waters within 12 nm of Mischief Reef, which denounced China’s territorial claims (Ali 2017; Ali and Blanchard 2018). Additionally, the US B-​52 bombers and Navy P-​8A Poseidon reconnaissance planes were recently deployed as deterrence against China’s increasing “militarization” in the SCS (Johnson 2018; Lendon, Watson, and Westcott 2018). Nevertheless, China has consistently taken countermeasures against assertive actions of the US. Regarding FONOPs, the Chinese navy conducted identification, verification, warning, and expulsion against the US military vessels, while the Chinese air force conducted accompanying flights to challenge the US military planes (Ministry of Foreign Affairs of the People’s Republic of China 2015b). Diplomatically, China regarded FONOPs and ISR activities as derogation and infringement of its sovereignty, demanding the US comply with China’s national laws and regulations (Ministry of Foreign Affairs of the People’s Republic of China 2015b, 2016f, 2016a, 2018a, 2018b). In short, the US is trying to base its military action on the MA to challenge China’s territorial and maritime claims. However, the two countries are stepping into a military and rhetorical spiral, leading to an unsettled stalemate in the SCS. As stated by Wu Shicun, “China–​US completion in the South China Sea policy is likely to further intensify as a result of China’s rise and American in-​depth strategic adjustment” (Shicun 2018, 66–​72). Reflections regarding impacts of the SCS arbitration on China–​Philippines relations Since China became gradually more assertive in the SCS from the Philippines’ perspective, the Aquino Administration adopted a “balancing strategy” that “strengthens the Philippines–​US alliance while straining Philippine–​China relations” (De Castro 2014, 6). As Renato De Castro observes, the Philippines “tilt[ed] the balance in favour of the country’s long-​time strategic ally” (De Castro 2014, 6). Moreover, the bigger concern at that time was the rise of a

The South China Sea Arbitration  205 US–​China confrontation in the Asia-​Pacific, particularly characterized by the Obama administration’s “Asia-​Pacific Rebalance” strategy (Clinton 2011; The White House 2011). It has been shown that the Philippines received financial, military, and security support from the US. At the same time, Japan deterred China’s political and economic influence (De Castro 2016a, 316–​318, 322–​ 324). Notably, the navy standoff in Scarborough Shoal in 2012 became the main driving force to drag China into a lawsuit, as China resumed its sovereignty over it while the Aquino administration perceived China’s control over this feature as the loss of their land territory (De Castro 2016a, 318–​ 320; Heydarian 2018, 291–​292). During litigation lasting longer that three years, diplomatic ties between China and the Philippines quickly deteriorated. When the Asia-​Pacific Economic Cooperation (APEC) meeting was held in the Philippines in 2015, avoiding talk of arbitration was the basic condition for China to attend, and the meeting represented the only highest official visit between the two countries after 2013 (Dancel 2015). This reflects that Sino–​Philippine relations were restrained. Economically, China discouraged Chinese tourists from travelling to the Philippines and banned the import of bananas, which led to economic losses for the Philippines (Heydarian 2018, 291). Additionally, to safeguard and demonstrate its sovereignty over the Spratlys, China implemented massive land reclamation projects (Ministry of Foreign Affairs of the People’s Republic of China 2015a). Such a manifestation serves to reject the Philippines’ Submission Nos. 3–​7, which essentially denounce Chinese sovereignty over those occupied features. Meanwhile, the US carried out FONOPs and bilateral military exercises with the Philippines in support of its claims (Keck 2014; Mogato 2015; Shalal and Brunnstrom 2015). Thus, all three states scaled up their responsive actions and escalated the risk of potential armed conflicts, which created a security dilemma for the Philippines and China in the SCS. After the verdict was issued, the Duterte administration temporarily shelved the ruling and sought to restore bilateral relations with China, arguing for “an independent foreign policy” by insulating the Philippines from the US (De Castro 2016b, 139; Heydarian 2018, 294–​296). Specifically, Duterte visited Beijing in October 2016, marking a turning point of Sino–​ Philippine relations (Xinhua 2016). Afterwards, China discharged the ban on bananas, encouraged more Chinese tourists to travel to the Philippines, and elevated cooperation in infrastructure construction. As the Philippines held the chairmanship of ASEAN in 2017, it set the MA aside in a series of high-​ level official meetings. In lieu of basing the ruling to exercise its sovereignty and sovereign rights in the WPS, the Duterte administration downplayed the ruling in its relations with China and focused more on cooperation. Such a shift also affected ASEAN attitudes, since ASEAN’s Joint Communiqués from 2016 to 2018 adopted a middling tone regarding the SCS issue. In 2018, ASEAN and China reached an agreement on the Single Draft Negotiating Text of the Code of Conduct (COC) in the South China Sea, which accelerated negotiations on specific articles of the COC (Ministry of Foreign Affairs of

206  Xu Qi the People’s Republic of China 2018c). In short, the SCS tensions that arose during arbitration seem to have cooled now that the Duterte administration has fortified diplomatic relations with China and does not enforce the arbitral ruling. To illustrate, the Philippines did not decide to exclusively exercise sovereign rights over Reed Bank, Mischief Reef, and Second Thomas Shoal, which are LTEs in the EEZ and CS of the Philippines, as elaborated by the MA. As indicated by De Castro, enforcing the ruling may force China to take adverse actions against Philippine fishermen and troops stationed in the Philippines’ occupied features. Additionally, the ruling is not enforceable due to “the weakness of the Philippine Navy and the Philippine Coast Guard compared with the large and well-​equipped Chinese naval and civilian presence” in the SCS (De Castro 2016b, 147–​148). Nevertheless, temporarily shelving the ruling does not mean the Philippines has given up on it. Therefore, it remains possible that the MA is put on the table sometime in the future (ABS-​CBN News 2018). The US, in collaboration with Japan and Australia, are advocating an “Indo-​Pacific Strategy” by infusing plentiful money to assist Southeast Asian states to strengthen their security capabilities (Septiari 2018; US Department of State 2018a). Whether other neighbouring states in the SCS follow the Philippines’ previous action and file another lawsuit against China under this strategy is uncertain. Notably, although it has been distancing itself from the US, the Duterte administration is also “fostering a security partnership” with Japan and promoting mutual cooperation in military and maritime security, as well as in its economy (De Castro 2016b, 147–​158). As one of the allies to the US, Japan is very inclined to play a more active role in the SCS by providing the Philippines with necessary military equipment and training (De Castro 2016b, 153–​155). To briefly summarize, after the SCS Arbitration, the MA favours the Philippines but does not reach the enforcement stage, due to the shift of the Duterte administration’s foreign policy, which isolates the US and benefits its diplomatic relationship with China, while strengthening the partnership with Japan as a traditional Western ally. Predictably, Japan, as an emerging external power, may be more involved in the SCS via cooperation with the Philippines, to constitute a “countervailing force to an expected increase in Chinses influence” from the standpoint of the SCS region, as observed by De Castro (2016b, 156).

Conclusion This chapter presents a legal and political analysis of the SCS Arbitration, particularly in the status and entitlement of certain maritime features as determined by the JA and MA. Legally, with regards to the JA, it is argued that there is no legal dispute existing between states. Prior conditions under Articles 281 and 283(1) have not been fulfilled. This mixed dispute reflects a conflict concerning territorial sovereignty and a disagreement concerning maritime delimitation, which shall be excluded from the Tribunal’s jurisdiction.

The South China Sea Arbitration  207 In regards to the MA, Article 121(3) constitutes an exception of Article 121, and the Tribunal self-​creates standards on the interpretation of Article 121(3). Additionally, the Tribunal’s interpretation of Article 121(3) of the Convention is inconsistent with the context of Article 121(3), the object and purpose of the Convention, as well as the travaux préparatoires of Article 121(3) and state practice. Moreover, the Tribunal misrepresented China’s position and misused the evidence submitted concerning the application of Articles 121 and 13 of the Convention. Therefore, this case indeed concerns territorial sovereignty and maritime boundary delimitation. Such consequences of denying sovereignty and creating a new delimitation framework between China and the Philippines pose doubts to the exercise of the jurisdiction by the Tribunal and the res judicata of the MA. As argued by Li Lingqun, “the post-​2013 period witnessed a spike of confrontations in the geopolitical environment in the SCS” (Li 2018, 200). The initiation of the SCS Arbitration reflects the Aquino administration’s balancing strategy, which “adopted hard-​ line policy towards China over the South China Sea, and pursued closer security ties with Washington and Tokyo”, according to Lowell Bautista (2018, 59). Nonetheless, China has taken political, economic, and legal countermeasures against the Philippines. Particularly, unprecedented land reclamation activities over some occupied features in the Spratlys and maritime enforcement actions of the Chinese coast guard, in the name of safeguarding Chinese sovereignty over these features and adjacent water. Upscaling antagonistic manoeuvres from the two states indeed posed challenges to the regional peace and security in the SCS. Handed a remarkable favour by the Tribunal, the Duterte administration temporarily set the Award aside, shifted towards China for resuming bilateral relations, and distanced itself from the US as a traditional ally in response to the SCS economic and security dilemma between the two states. Such a policy transition also influenced ASEAN’s reaction towards the MA and China. However, there has been no official abandonment of the ruling and no indication that the SCS Arbitration will soon disappear from the Duterte administration’s agenda. The role of the MA, though currently downplayed, remains uncertain for Sino–​ Philippine relations. In regards to great-​ power politics, upgraded FONOPs and ISR activities from the US during the arbitration support Philippine Submissions concerning specific features. During the Trump administration, such activities were more likely to be based on the MA and to further legitimize US actions in opposition to China’s territorial and maritime claims. A spiralling geopolitical competition between China and the US led to a stalemate and seems to be not easily resolved. Albeit departing from the US, the Duterte administration is forging a more intimate security partnership with Japan in which it is willing to participate in the SCS as a counterbalance towards China’s rising influence. In conclusion, in its decision to pursue arbitration, the Philippines has been influenced by the broader political situation and intertwined with geopolitical competition between China,

208  Xu Qi the US, and Japan as external great powers. The role of the SCS Arbitration Award must be further observed in the future development of the SCS region.

Notes 1 The Zhongsha Islands, or Zhongsha Qundao, are one of four archipelagos or island groups claimed by China as its sovereignty in the South China Sea (People’s Republic of China 2014, para. 49). 2 The Court admitted that “the Parties appear to have only rarely exchanged views concerning the status of specific individual features” (Permanent Court of Arbitration 2015d, para. 169). 3 Judge Keith disagreed and declared that an express exclusion is required and did not exclude further procedures in UNCLOS (ITLOS 2000, 49–​57). 4 The drafters of UNCLOS considered that Article 281 “is consistent with the basic principle of Part XV, that the parties are free to decide how they want their dispute to be settled, and to agree that even in certain circumstances they prefer to have it unsettled rather than to submit it to the procedures of Part XV. As long as all parties accept this result, the Convention is not trying to force them, against their will, to resort to procedures under Part XV” (Nordquist, Nandan, and Sohn 1989a, article 281, para, 281.5). It is suggested that, albeit providing some limits, Article 281 confers the parties’ flexibility in reaching an agreement on their own. The requirement of “legally binding force” is not seen in Article 281, however, this article neglects the possibility that states may agree to take a particular action with binding force, even in the context of a nonbinding document. 5 “There is no clear pattern identifying the thin line, if any, that separates the mere exchange of views from negotiations” (Nordquist, Nandan, and Sohn 1989a, article 283, para. 1). 6 “A coastal State has sovereignty over low-​tide elevations which are situated in the territorial sea”. “Nor is the Court aware of a uniform and widespread State practice which might have given rise to a customary rule which unequivocally permits or excludes appropriation of low-​tide elevations” (International Court of Justice 2001, 101–​102, paras. 204–​205). 7 In this case, the Court determined QS 32 as a rock merely generating TS and capable of appropriation, while 53 other features were LTEs on Quitasueño. It further observed that only two LTEs were located in the 12 nm of QS 32, and Colombia had sovereignty over two features. 8 On the contrary, the Philippines positively pointed out that “the Philippines necessarily enjoys sovereignty over those LTEs which are within 12 nm of its own territory. Sovereign rights over LTEs within the Philippines’ continental shelf and EEZ are exercisable only by the Philippines”. 9 Roberto Lavalle holds a similar opinion:  “Elevations located within the EEZs of states are absorbed into the regime of the maritime space surrounding them, meaning that the state concerned has over them the rights it enjoys over its EEZ” (Lavalle 2014, 478). 10 The term “concerning” has the same meaning as the term “have a bearing on”. 11 Some scholars observe that there are at least 12 islands in the Spratlys: Itu Aba Island, Northeast Cay, Thitu Island, West York Island, Loaita Island, Nanshan Island, Southwest Cay, Sand Cay, Namyit Island, Sin Cowe Island, Amboyna Cay,

The South China Sea Arbitration  209 and Spratly Island (Strupp 2008; Beckman and Schofield 2014). Some scholars indicate there are 15 islands, plus Flat Island, Lan Kiam Cay, and Swallow Reef (Gau 2015, 106–​107). 12 The coordinates of maritime features can be found in the “List of Partial Standard Names for China’s Islands in the South China Sea”, 2016, www.unanhai.com/​ nhzddm.htm. The distances are calculated by the Latitude/​Longitude Distance Calculator provided by the National Weather Service (National Oceanic and Atmospheric Administration, 2016, www.nhc.noaa.gov/​gccalc.shtml). 13 See note 12 for details on finding the coordinates and calculating the distances of Cuarteron Reef, Fiery Cross Reef, Johnson Reef, McKennan Reef, Hughs Reef, Mischief Reef, Second Thomas Shoal, Subi Reef, Itu Aba Island, and Thitu Island. 14 See note 12 for details on finding the coordinates and calculating the distances of Gaven Reef, Itu Aba Island, and Thitu Island. 15 See note 12 for details on finding the coordinates and calculating the distances of Johnson Reef, McKennan Reef, Hughes Reef, Mischief Reef, and Second Thomas Shoal. 16 Merriam-​Webster Online Dictionary, life:  16a:  human activities, www.merriam-​ webster.com/​dictionary/​life. 17 The Tribunal’s interpretation of the term “or” has already been discussed by scholars (e.g. Elferink 2016). 18 “Article 31 avoids an extreme functional interpretation which may, in fact, lead to ‘legislation’ or the revision of a treaty” (Villiger 2009, 428). 19 Particularly, in 1973 and 1974, the Organization of African Unity Coalition of States made two proposals on the Regime of Islands (see UN Doc.A/​CONF.62/​ 33, para. 63; UN Doc.A/​CONF.62/​L. 62/​Rev. 1, paras. 23–​24). Romania submitted two proposals on the article of islands (Nordquist, Nandan, and Sohn 1989b, Vol. III, p. 21; UN Doc.A/​CONF.62/​C.2/​L.75, p. 228). The group selected some key words from the foregoing proposals, however, “certainly the text in 121(3) was not in the exact form and not even really in accord with the intended purpose of the delegates who had proposed the words selected by the Bureau”.

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Index

Abe, S. 107, 117, 118, 129–​130, 132, 138, 146; approach to South China Sea disputes by 148–​152 Adler, E. 137, 138, 139–​140 Air Defence Identification Zone (ADIZ) 40n5, 145 Aquino, B., III 103, 104 Aquino, C. 98–​99 arbitration, South China Seas 206–​208; Article 121(3) constituting an exception of Article 121 196–​197; capability of appropriation over LTEs, and that LTEs occupied by China are part of the EEZ and CS of the Philippines 193–​194; determination on legal status and maritime entitlement of insular features fragmenting China’s sovereignty over the Spratlys as a single unit 192–​193; impacts on China-​Philippines relations 204–​206; impacts on great-​power politics 203–​204; inseparability between legal status and maritime entitlement and maritime delimitation 194–​195; interpretation inconsistent with context of Article 121(3) and with the object and purpose of the Convention 198–​199; interpretation inconsistent with the travaux préparatoires of Article 121(3) and state practice 199–​200; introduction to 188–​189; JA concerning legal status and maritime entitlement 189–​196; jurisdictional obstacles to Tribunal’s jurisdiction 192–​196; MA concerning legal status and maritime entitlement 196–​203; misused evidence submitted concerning application of Articles 121 and 13 of the Convention

200–​203; potential overlapping maritime entitlements between two states considered in 195–​196; prior conditions not satisfied under Section I of Part XV of the UNCLOS 191–​192; reflections on political dimension of 203–​206; self-​creation of standards on the interpretation of Article 121(3) 197–​198; term “concerning” or “relating to” interpreted in good faith in the M/​V Louisa case 194; whether a legal dispute exists concerning Submission Nos. 3-​7 190–​191 Association of Southeast Asian Nations (ASEAN) 5, 8–​9, 118–​119; balance of power and 141–​145; Japan and 130–​132; Obama administration and 30–​31, 32, 34; the Philippines and 100–​101; Taiwan and 75 Australia 160–​161, 179–​180; conceptions of international order in 162–​164; debating changes and challenges to international order 172–​174; debating threats to ‘freedom of navigation’ 168–​171; extending maritime territories and zones 166–​168; imagined stability and attempts to arrest change 177–​179; rise of the ‘Indo-​Pacific’ and 174–​177 Ba, A. 139 Baker, J. 26–​27 Barsun, J. 59 Bateman, S. 170 Baudrillard, J. 57 Belin, C. 33 Bisley, N. 170 Brands, H. 25 Breslin, S. 10

Index  219 Britain-​China Friendship Association 45 Bull, H. 6–​7 Burke, 163 Bush, G. W. 30 Buzan, B. 7–​8, 10, 12–​13 Cairo Declaration 61n24 Campbell, K. 30 Carr, E. H. 162 Carter, A. 36 century of humiliation 50–​52, 58, 140–​141 Chen Shui-​bian 78–​80, 82 Chiang Huang-​chih  82 Chiang Kai-​shek  75 China: building a new harmony with the West 52–​55; century of humiliation of 50–​52, 58, 140–​141; choosing chosen glory over chosen trauma 58; consecutive global affairs strategies of 53–​54; dream of harmonious world in 55–​59; harmony in traditional Confucian society in 46–​50; ‘One China, Respective Interpretations’ and 80–​82; responses to strategic uncertainties 122–​125; sources of uncertainties in the South China Sea of 117–​119 Chinese Communist Party 51–​55 Chu, E. 82 civil society 55, 72 Clark, I. 10–​11, 13–​14 Clinton, H. 32, 35 Cold War, the 24, 138, 173, 177–​178 Confucianism 46; harmony in traditional 46–​50 Congress of Vienna 50, 56, 58 de Castro, R. 204–​205 Deng Xiaoping 53 ‘Dialogue of East and West, The’ 45–​46 Diez, T. 12 Dong Wang 52 Duterte, R. 8–​9, 91–​92, 105–​107, 117–​118, 130, 205–​206 East Asia: the Cold War and 24, 138, 173, 177–​178; regional order in 138–​141; United Nations Convention on the Law of the Sea (UNCLOS) and 2, 76, 100, 141, 164–​166 East-​West relations: building a new harmony in 52–​55; Chinese dream of

harmonious world in 55–​59; harmony in traditional Confucian society and 46–​50; image and self-​image of the West and 50–​52; introduction to 45–​46 English School 6–​8, 140 Estrada, J. 101 Follett, M. P. 29 Foot, R. 142 freedom of navigation: Australian conceptions of international order and 162–​164; debating changes and challenges to international order and 172–​174; debating threats to 168–​171; extending maritime territories and zones and 166–​168; imagined stability and attempts to arrest change and 177–​179; introduction to 160–​161; law of the sea’s contested ‘rules and norms’ and 164–​166; rise of the ‘Indo-​Pacific’ and 174–​177 freedom of navigation operation (FONOP) 36, 170–​171 free-​riding  35 Friedberg, A. 139 Fumio, K. 151 Gen, N. 151 Giddens, A. 72 Global Times 1 Global War on Terror 102, 163, 175 Goh, E. 141 Great Proletarian Cultural Revolution 53 Greve, P. 137, 138, 139–​140 Guam/​Nixon Doctrine 35, 172 Gu Mu 62–​63n38 Gu Weijun 74 harmony in traditional Confucian society 46–​50 hedging strategy 92–​96 Higgott, R. A. 162 Hu Angang 58 hub-​and-​spoke system  29–​30 Hu Jintao 54 Hutchings, K. 50 Ikenberry, G. J. 8 image and self-​image of the West 50–​52 International Relations (IR) theory 4–​16; defensive realism 26, 39n1; English School and 6–​8, 140; hegemony in

220 Index 10–​15; liberal institutionalism and 4–​6, 93–​95, 173; neorealism 2–​3; normative power in 12, 15; offensive realism 39n1; ontological security 71–​74, 82–​85; relational power in 13; Taiwan and 70–​71 Japan 116–​117, 132–​133, 152–​153; Abe’s approach to South China disputes and 148–​152; Association of Southeast Asian Nations (ASEAN) and 130–​132; China Seas disputes and regional Sino-​Japanese dynamics and 130–​132; Coast Guard of 137–​138; DPJ’s approach to South China Sea disputes and 147–​148; ECS dispute dynamics and interactions with China 128–​130; regional order in East Asia and 138–​141; relations with the Philippines 107; relations with the United States 29–​30, 116–​118, 120–​121, 132, 138; responses to strategies uncertainties 125–​128; response to South China Sea disputes 145–​147; sources of uncertainties in the South China Sea of 119–​122 Jiefang Ribao 51 Joint Operational Access Concept (JOAC) 35 Kaufman, A. A. 53–​54 Kavalski, E. 59 Kaye, S. 166 Ken, S. 150 Kennedy, P. 25 Kent, A. 10 Keohane, R. O. 5 Krasner, S. D. 140 Laing, R. D. 72 Lao Tzu 27 Layne, C. 24 Lebow, R. 11 Lee Tung-​hui 75–​78, 81 liberal interventionism 26–​27 Lieber, R. J. 38–​39 Lippmann Gap 25 Liu Mingfu 58 Li Zhaoxing 141 Loubna El Amine 47 Lu Xiulian 79 MacIntyre, A. 72–​73 Malaysia 143

Manner, I. 12 Mao Zedong 51, 59 Ma Ying-​jeou  80–​82 Medcalf, R. 169–​170 Metzger, T. A. 46 Midford, P. 146 Morgenthau, H. 3 Nabers, D. 33 Napoleon 50 Needham, J. 45–​46 Nine-​Dash Line 61n24, 142 Nixon, R. 59, 172 Non-​Aligned Movement  53 Nordin, A. HM 57 North Korea 1, 175 Nossal, K. 162 Nye, J. S. 5 Nylan, M. 48 Obama foreign policy 38–​39, 106, 116, 117, 118, 120, 121; adapting traditional alliances to new realities and developing new partnerships 28–​35; introduction to 24–​25; leading from behind 25–​28; South China Sea 35–​38 ‘One China, Respective Interpretations’ 80–​82 Pajon, C. 146 Pax Americana 24 Peerenboom, R. 55 Perera, S. 163 Permanent Court of Arbitration (PCA) 8–​9 Philippines, the 91–​92, 108–​110, 117–​118; evolution of use of power and law in the South China Sea by 96–​108; impact of SCS arbitration on relations between China and 204–​206; power and international law and the weak state’s hedging strategy in 92–​96; relations with China and Japan 106–​108; relations with the United States 31–​32, 98–​99, 101–​102 power and law: evolution of Philippines’ use of 96–​108; hedging strategy and 92–​96; in International Relations (IR) theory 4–​16; liberal institutionalism and 4–​6, 93–​95, 173; political dimension of SCS arbitration and 203–​204; SCS disputes and balance of 141–​145; state’s compliance with international 95–​96 Pugliese, G. 146

Index  221 Qin Yaqing 13 Ramos, F. 99–​100, 101 realpolitik 31 relational power 13 Roetz, H. 47–​48 Ross, R. 139 rules-​based institutions  175 Saunders, P. C. 119 Sea Line of Communication (SLOCs) 30 Selden, J. 179 selective engagement 26–​27 South China Sea (SCS): balance of power and disputes in 141–​145; as flashpoint 1–​4, 91, 137; Japan and (see Japan); Obama administration policies on 35–​38, 116, 117, 118, 120, 121; the Philippines and (see Philippines, the); Taiwan and (see Taiwanese claims on the South China Sea); Trump administration policies on 116, 117, 118, 120, 132, 138; see also arbitration, South China Seas South Korea-​US relations 30 Stalin, J. 52 state identity 72–​73 Steinfeld, E. S. 10 Sustaining US Global Leadership: Priorities for 21st Century Defense 25, 28–​29 Taiwanese claims on the South China Sea 69–​71, 85; Chen Shui-​bian and Ocean Nation policy in 78–​80; KMT’s pursuit of legitimacy of the Republic of China in 74–​75; Lee Tung-​hui and Taiwan’s subjectivity and 75–​78; Ma Ying-​jeou and China’s “One China, Respective Interpretations” and 80; ontological security and 71–​74, 82–​85

Tang Fei 77 Tarō, A. 150 Tessman, B. F. 37 Tillerson, R. 1 To, L. L. 142 transactional leadership 27–​28 transformational leadership 27–​28 Trans-​Pacific Partnership (TPP) 33 Trump, D. 1, 107, 116, 117, 118, 120, 132, 138 Tsai Ying-​wen  82–​85 United Nations Convention on the Law of the Sea (UNCLOS) 2, 76, 100, 141, 164–​166, 188; debating threats to the ‘freedom of navigation’ 168–​171; see also arbitration, South China Seas Vietnam 127, 143 von Metternich, K. 50 Western Enlightenment thinking 46 Western image and self-​image 50–​52 Wight, M. 7 Wing-​tsit Chan  48–​49 Xi Jinping 9, 119, 151; Japan and 129–​132 Xunzi 47–​48 Yan Xuetong 14 Yoshihiko, N. 147–​148 Yu Zhengxian 78–​79 Zala, B. 162 Zhang Chi-​hsiung  12–​13 Zhang Yongjin 14–​15 Zheng Yongnian 56 Zhou Enlai 53