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The 2016 Defence White Paper describes a rules-based global order as a “fundamental strategic interest”. 

This project, supported by the Department of Defence’s Strategic Policy Grants Program, aims to lead a national debate on the rules-based order and its implications for Australian security and defence. It will connect the legal, political, and historical debates about the nature of the global order with the practical realities of Australia’s strategic environment. It will address how the order can evolve to meet new technological challenges and modes of warfare, including grey zone operations.

Cover image: Official U.S. Navy / Flickr

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Defending the liberal international order

Book review: G. John Ikenberry A World Safe for Democracy: Liberal Internationalism and the Crises of Global Order (Yale University Press, 2020)

Big ideas about how the world works, and how it should work, are getting more attention as old assumptions are jolted by the pandemic, the Trump presidency and the rise of China, to name just a few.

The concept of liberal internationalism has taken a particular battering. The phrase is now associated both with the neoconservative agenda of aggressive democracy promotion and, more recently, naïve assumptions that a rising China would be incorporated into the US-led international order.

Perhaps the best-known academic exponent of liberal internationalism is John Ikenberry. This bookA World Safe for Democracy: Liberal internationalism and the Crises of the Global Order – is his reckoning with recent events. Ikenberry responds to the gloomy present by laying out a long history: “seen from a two-century perspective, the project is as much a story of struggle as triumph”. He seeks lessons from the successes and failures of liberal internationalism, with the essential goal of “a world safe for democracy”. But he roundly rejects the arguments that liberal internationalism necessitates foreign intervention, or even explains America’s “imperial” post-9/11 military campaigns.

Ikenberry’s analysis provides a useful framework for understanding the Biden administration. Some of its foreign policy pronouncements clearly chime with Ikenberry’s prescriptions. National Security Adviser Jake Sullivan is among those thanked in the book’s acknowledgments.

Problems of modernity

Although liberal internationalism is typically pitted against the realist school of international relations, for Ikenberry the comparison amounts to apples and oranges: whereas realists are focussed on problems created by anarchy in international relations, liberal internationalists are focused on “how states cope with problems of modernity”.

Modernisation creates ever more economic and security interdependence. The resulting problems, and opportunities, necessitate greater international cooperation. Liberal democracies have cooperated most, establishing the norms and institutions that constitute the liberal international order. The liberal international order was a long time in the making, and it is now well into its unmaking.

Ikenberry marks the major inflection points. President Woodrow Wilson, whose famous quote about America’s goal in entering the First World War is included in Ikenberry’s title, synthesised the disparate elements of liberal internationalism in establishing of the League of Nations. The League failed to prevent another world war, but, as Ikenberry would have it, “would foster the long-term shifts in consciousness required to bring rules-based international order into being”.

US President Woodrow Wilson in Congress in 1917 recommending the US enter the war against Germany (Historica Graphica Collection/Heritage Images/Getty Images)

President Franklin Roosevelt began that process after the Second World War. Learning from Wilson’s mistakes, Roosevelt sought an order that was more global, more realist and more socially liberal. Ikenberry tells that US security was equated “with the stability of security relations prevailing worldwide” and US power would “underwrite the world order.” Roosevelt also sought to embed his “New Deal” social liberalism in the international order: Nazism had shown how threats to democracy could emerge from within.

Cold War dynamics prevented the United Nations from embodying this new order, but it grew in the western half of the emerging bipolar world. It was a “club” whose main members, the United States, Western Europe and Japan “shared an authentic belief that the ‘free world’ was not just a temporary alliance against the Soviet Union but a community of shared fate”.

Intriguingly, Ikenberry suggests that US leadership of the liberal international order may no longer be possible or necessary.

After the Cold War, these triumphant allies sought to globalise the liberal international order. But in becoming wider, the order became thinner and less effective. Membership was no longer conditional on common values. Liberal internationalism lost its link to “progressive and social democratic agendas” and came to look “less like a security community and more like a platform of rules and institutions for capitalist transactions”.

The imposition of neo-liberal policies on emerging economies was followed by counterproductive military interventions, especially after 9/11. With the arrival Donald Trump the breakdown of the liberal international order reached a crescendo.

Ikenberry insists that the breakdown of the liberal international order is chiefly due to internal problems rather than geopolitics. But the rise of China also looms large in his description of what went wrong. Sitting “both inside and outside the post-Cold War liberal international order”, China has been able to pick and choose.

Less international?

Ikenberry’s theories about US leadership of the liberal international order are perhaps his most complex and contentious. US leadership was necessary, but Washington had an incentive to restrain its exercise of power, so as to win the acquiescence of other states to US hegemony. Because the United States used “institutions to establish restraint and commitment” the resulting order was “somewhat independent of the balance-of-power and imperial logics.”

Ikenberry acknowledges scepticism that the US was, in fact, restrained but doesn’t try to dispel it. He notes, reasonably, that doing so would depend on unprovable counterfactuals. His bottom line appears to be that, either way, liberal internationalists had no better option than to align themselves with American power.

“Non-Violence”, the sculpture was a gift from Luxembourg presented to the United Nations in 1988 and is located outside UN headquarters in New York (UN Photo/Michos Tzovaras)

Intriguingly, Ikenberry suggests that US leadership of the liberal international order may no longer be possible or necessary. As American power declines the country will need to cooperate more with other liberal democracies and there “may even an opportunity to ... build a post-hegemonic consortium of like-minded states that could collectively underwrite a reformed liberal order.”

Rather than provide specific prescriptions, Ikenberry identifies questions for liberal internationalism and suggests some broad-brush answers. His overarching injunction is that, to correct the post-Cold War over-extension, liberal internationalists should go back to basics. That means recreating the club: “exclusive groupings within the wider international order” are still important for defending liberal values. Addressing global issues such as climate change requires inclusive organisations, even at the cost of reduced effectiveness.

He also seems to argue that liberal internationalism should become less international. In dealing with the illiberal world, democracies should restrain “their offensive liberal impulses”. They should become more defensive and domestically focussed, reconnecting “to progressive forms of nationalism” and – as FDR did – reconcile “open trade and free market capitalism with social protections and economic security”.

Much depends on China. If Beijing is, in fact, seeking “to perfect an authoritarian model of industrial society” that can “offer the world an illiberal pathway to modernity” then Ikenberry seems to allow that more “offensive liberalism” might be warranted. But the jury is still out.

Unlike realists, liberal internationalists “seek not only to explain the world as it is, but also to bring into being a world they would like to live in”. Ikenberry’s history is informative and his flowing prose persuasive but it’s not always clear which world he is describing. Either way, the fact that he can’t prove the existence of a liberal international order doesn’t weaken his argument that – especially after Covid-19 – the world needs more, but better-defined, liberal internationalism.

The US and the Rules-Based Order: Testing the plan

US President Joe Biden this month issued an Interim National Security Guidance which will, in his words, “convey my vision for how America will engage the world”. He has directed departments and agencies “to align their actions with this guidance”.

This document also provides some answers to the question – which we earlier asked experts to debate ­– of what role the rules-based order should play in his foreign policy.

The “stable and open international system” (as the document terms the order) is a central organising theme of the White House guidance. One of three priorities it identifies is to “lead and sustain a stable and open international system, underwritten by strong democratic alliances, partnerships, multilateral institutions and rules.” (The other two are to rebuild at home and establish a favourable balance of forces.)

It’s closely linked to two other major themes: China and democracy. According to the guidance document, China:

is the only competitor potentially capable of combining its economic, diplomatic, military, and technological power to mount a sustained challenge to a stable and open international system … In many areas, China’s leaders seek unfair advantages, behave aggressively and coercively, and undermine the rules and values at the heart of an open and stable international system.

Against this challenge, the document posits a multilayered, US-led international order. At its core are the “democratic alliances” that “will enable us to present a common front, produce a unified vision, and pool our strength to promote high standards, establish effective international rules, and hold countries like China to account”.  

Beyond its democratic core, the order extends through US partnerships and outwards to multilateral institutions, becoming progressively “thinner”. It’s implicit that the US will cooperate less with partners that don’t share it’s democratic values but:

we will be mindful of both our values and our interests as we engage partner nations. We will deepen our partnership with India and work alongside New Zealand, as well as Singapore, Vietnam, and other Association of Southeast Asian Nations (ASEAN) member states.

Nor is cooperation with competitors and adversaries ruled out: “strategic competition does not, and should not, preclude working with China when it is in our national interest to do so … We will welcome the Chinese government’s cooperation on issues such as climate change, global health security, arms control, and nonproliferation.” On the latter, the US will “head off costly arms races and re-establish our credibility as a leader in arms control”.

Ends and means

The essence of strategy is matching ends with means. The White House guidance is reasonably frank about America’s limited means, including domestic challenges from public health to representative democracy. The US will make less use of its military:                                                        

the use of military force should be a last resort, not the first; diplomacy, development, and economic statecraft should be the leading instruments of American foreign policy … The United States should not, and will not, engage in “forever wars” that have cost thousands of lives and trillions of dollars.

On the stable and open international system, the document even acknowledges that “the system’s flaws and inequities have become apparent, and gridlock and inter-state rivalry have caused many around the world ­– including many Americans – to question its continued relevance”.

But the objective remains ambitious: “Together with our allies and partners, we can modernise the architecture of international cooperation for the challenges of this century, from cyber threats to climate change, corruption, and digital authoritarianism.” And the guidance ends on a punchy note, with the claim that “we will ensure that America, not China, sets the international agenda, working alongside others to shape new global norms and agreements that advance our interests and reflect our values”.

The Iran test

How should America bridge this gap between means and ends? If the US is to make less use of hard power and depend more on diplomacy, multilateralism and international norms it will have to make more compromises. Claims to American exceptionalism will be harder to reconcile with support for the “stable and open international system”. Allies and partners won’t automatically share US goals.

It’s probably unreasonable to expect that a document such as this would impart such hard truths, but there are signs that the message has not been received.

Their assumption of US leverage appears unaffected by the failure of Donald Trump’s maximum pressure campaign failed to deliver such a deal.

Biden’s reluctance to reverse Trump’s withdrawal from the Joint Comprehensive Plan of Action (the Iran nuclear deal, or JCPOA) contrasts with his quick decision on the Paris Agreement and New START. The administration is demanding that Iran – which stopped complying long after the US did – should return to compliance first. Predictable diplomatic wrangling has begun.

Biden’s caution appears to derive from domestic politics. These haven’t moved on since 2015, when prominent Democrats boosted Republican congressional majorities opposed to the deal. Opponents are again arguing that the US should seek a “better deal” that covers Iran’s missile program and regional behaviour. Their assumption of US leverage appears unaffected by the failure of Donald Trump’s maximum pressure campaign failed to deliver such a deal. They take no account of the JCPOA’s significance ­– as an increasingly rare example of much-needed arms control – as part of the rules-based order.

On the JCPOA, the guidance promises only that “we will pursue principled diplomacy to address the Iranian nuclear program and its other destabilising activities”. Principled diplomacy should require Washington to abide by its word, especially given the personal involvement of many Biden officials in the original negotiations.

National security pundits obsessed over the damage done to the credibility of US threats after Obama’s failure to enforce his “red line” on Syria’s use of chemical weapons. If Washington is to “modernise the architecture of international cooperation for the challenges of this century”, it will need to attach at least as much weight to the credibility of US undertakings.

How far would Australia go in defence of the rules-based order?

Last month, I alerted Interpreter readers to a new Lowy Institute debate feature on America and the Rules-based Order. In my comments about the debate, I said that Australia faced “the biggest foreign and security policy challenge of all: defending ourselves and our interests without the help of the United States”.

But what I didn’t do was talk explicitly about the relationship between the rules-based order and defence policy. Famously, at least among policy wonks, the 2016 Defence White Paper makes 56 references to the “rules-based order”, which is described there as a “core strategic interest” for Australia and defence policy. But what does that actually mean, in concrete terms? What actions do we take in support of that order which we wouldn’t take if we were not wedded to it?

The most obvious answer is that it plays a part in determining where and when we use force. The 2016 White Paper says that the rules-based order is something we should be willing to fight for. We can also demonstrate support for the RBO through how we fight. We claim to abide by the two major principles of just warfare: discrimination (directing force only at the aggressor and avoiding harm to innocents) and proportionality (use only as much force as necessary). Of course, Australia’s behaviour is not always consistent with those principles, as the Brereton war crimes report into the actions of special forces troops in Afghanistan attests. It is also difficult to justify Australia’s involvement in the second Iraq war on the grounds that we were reversing armed aggression. If anything, Australia and its allies, the United States and United Kingdom, were the aggressors.

To commit particular acts of aggression, a state needs the right tools.

The big question that hangs over our commitment to use force in defence of the rules-based order is: how far would we go? There are countless offences against the RBO which Australia overlooks because they happen too far away. But even closer to home, we might resist the urge to defend the RBO if doing so would clash with other vital interests. If we felt, for instance, that China was guilty of a crime of aggression by invading Taiwan, would we come to Taiwan’s aid if it meant risking involvement in what could escalate to a nuclear war?

Aside from military operations, our commitment to the rules-based order also has implications for how our defence force is structured and the weapons we buy. For instance, we don’t use weapons which are banned by international treaty, such as land mines, chemical and biological weapons, and cluster munitions. Nor have we ever acquired nuclear weapons, though here things get a little murky – the reason we don’t have nuclear weapons of our own is that our ally, the United States, allows us to “borrow” theirs under a policy known as extended deterrence.

Australia has substantial amphibious forces, allowing hundreds of troops and their equipment to move over thousands of kilometres of ocean (Department of Defence)

There’s also a more subtle and ambiguous question at play when we think about structuring our defence force in a way that is consistent with our respect for the rules-based order. State aggression – that is, the unprovoked use of force against another state – is one of the most serious offences in international law; the Nuremberg tribunal called it “the supreme international crime”. Self-defence, on the other hand, is allowed under international law, and almost every state on earth maintains military forces for that purpose. The problem is that it can be difficult to tell the difference between a state preparing for self-defence and one building a military to commit acts of aggression.

Difficult, but not impossible. To commit particular acts of aggression, a state needs the right tools. For instance, an island nation without the means to move large numbers of troops over the ocean is physically incapable of foreign invasion. A nation with lots of anti-tank weapons but no tanks is sending a signal that it wants to defend itself but has no ambitions against its neighbours.

Australia, of course, does have substantial amphibious forces, allowing us to move hundreds of troops and their equipment over thousands of kilometres of ocean. We are also planning to develop the capability to bomb adversaries at long range. Defence Minister Linda Reynolds announced last month that the government is investing $1 billion in a new range of missiles, including one with range in excess of 1500 kilometres to strike land targets from the sea.

Putting land-attack missiles on board submarines or surface ships is a bad idea for practical reasons, and previously I have made a strategic case against long-range strike capability of any kind, whether on ships, submarines or aircraft. But I think we can make one additional argument: by abjuring these military capabilities, we show our commitment to the rules-based order because we signal that we lack the capability to commit certain acts of aggression. It has the additional benefit of reassuring our neighbours and thus making it less likely they will develop such capabilities themselves.

One important caveat: my argument tends to conflate the rules-based order with international law, but they are not the same thing – international law is concerned with justice but it doesn’t have anything to say about order among states, which is decided not solely on a legal basis but on grounds of power and authority. Often, our professed commitment to international law will clash with our interest in maintaining a favourable balance of power, but I don’t think that is the case here. Adopting a non-offensive force structure (what I have called an Echidna Strategy) makes sense in terms of our interest in forging a tolerable balance of power in our region, and in terms of our commitment to the rules-based order.

What are China’s leaders saying about the South China Sea?

When China began three days of military exercises in the South China Sea’s Gulf of Tonkin back in January, some observers speculated that Beijing was testing the new Biden administration. Harsh words from Beijing accompanied the exercises, with China’s foreign ministry spokesperson Wang Wenbin declaring the drills were “necessary measures to resolutely safeguard national sovereignty and security”.

Even against this backdrop, China’s official position is that it remains committed to a peaceful resolution of the South China Sea issue. And the rhetoric China employs at different times does make for a fascinating contrast. For example, China’s Foreign Ministry asserted in July 2020 that “China is not seeking to become a maritime empire” and that it “treats its neighbouring nations on an equal basis and exercises the greatest restraint.”

How then should we make sense of the mixed messages coming from Beijing? Most China experts find discourse to be informative – if not about China’s intentions, then at least about its aspirations. But which statements are indicative of China’s true position?

I argued recently in research for the Wilson Center that scholars need to evaluate the content and specificity of Chinese national discourse in addition to the position of the author or speaker involved. To that end, I analysed all public speeches made by members of the Politburo of the Chinese Communist Party from 2013 to 2018. Xi Jinping led both of the Politburos I studied, and each had 25 members. Since some members served in both, this yields speeches by 39 unique individuals.

Ambiguity suggests the leadership wants to have maximum flexibility and avoid being boxed in by its aggressive rhetoric.

The speeches related to the South China Sea could be separated into those that mentioned cooperative themes and those with competitive themes. Cooperative themes have two subcategories, cooperation and political solutions. Competitive themes have five subcategories: sovereignty, military, freedom, tension and non-regional countries/the United States.

In what might appear good news for regional stability, China’s leaders used more cooperative discourse in public statements about the South China Sea than competitive themes. This might be taken to indicate a willingness to compromise with other claimants – a feature that is especially evident during the first year of each new Party Congress, namely 2013 and 2018.

However, one of the tenets of deriving intentions from discourse is that not all leadership statements are created equal. We need to consider personal power, accountability and reputation for honesty. This means that statements by Xi, who is described as having “more power and more personal authority than any post-Mao leader”, take precedent.

So here is the bad news. My analysis showed that Xi’s statements accounted for 42.7% of the competitive themes mentioned, even though he is only one of 39 leaders during this period.

There are additional reasons to discount Xi’s cooperative statements: his reputation for dishonesty.

Fiery Cross Reef, South China Sea (Google Earth, Maxar Technologies, SIO, NOAA, US Navy, NGA, GEBCO)

In September 2015, Xi made a public statement at the White House promising not to “militarise” the artificial islands China had been building in the South China Sea. Xi stated that “relevant construction activities that China is undertaking … do not target or impact any country, and China does not intend to pursue militarisation”. While the language at the time was deemed “new”, the pledge remained unclear. Then and subsequently, Xi did not promise to freeze dredging, island-building or activities in the region, nor did he offer any clarity about what “militarisation” meant. In May 2019, then–Chairman of the Joint Chiefs of Staff General Joseph Dunford said that China had “clearly … walked away from that commitment” given the “10,000-foot runways, ammunition storage facilities, routine deployment of missile defence capabilities, aviation capabilities and so forth” on the islands. My analysis in a previous Interpreter article shows that China has indeed militarised these islands to establish control over the islands and the surrounding waters.

Interestingly, China’s foreign ministry also makes more competitive statements than cooperative statements, contrary to what might be the expectation that professional diplomats would lean towards negotiations and reassurance. If soothing language was supposed to mask China’s intentions, ministry statements would be the most likely source. But instead, China seems to prioritise articulating its position on sovereignty and issuing threats to those who violate it over reassurance.

None of this means China will use force in the South China Sea. Xi’s statements calling for a tough stance to protect China’s perceived sovereignty in the South China sea lack specificity – there are no allusions to a timeline or preferred methods. Such ambiguity suggests the leadership wants to have maximum flexibility and avoid being boxed in by its aggressive rhetoric, even if it is popular with the Chinese public. And the Chinese leadership undoubtedly prefers to use diplomatic, legal and economic tools to establish sovereignty over these waters.

But my analysis suggests that China will be unlikely to make the compromises necessary on its expansive territorial claims in these waters to facilitate a viable diplomatic resolution. Instead, China’s leaders hope that political, economic and military power will convince other countries to accommodate China’s position without a fight. And if the other claimants concede to Beijing, it will be harder for the United States or Australia to push back on China’s position.

How China is bending the rules in the South China Sea

Chinese exercises in the South China Sea last month, and the strong US response, show these disputed waters will not soon be calm. While the focus has largely been on military manoeuvres, competition in legal positions has also been heating up. Last year, both the United States and Australia risked China’s wrath by officially stating that China’s claims in the South China Sea are unlawful. Other claimants were pleased by this change of policy, but none voiced it prominently.

The issue, however, is not that China flagrantly violates international law – it is that it does so while simultaneously creating a veneer of legal legitimacy for its position.

The conventional wisdom is that China claims sovereignty over “virtually all South China Sea islands and their adjacent waters.” Its claims are “sweeping” and more expansive than those of any other rival claimant. In 2009, Dai Bingguo, then a top Chinese official, first referred to the South China Sea as a “core interest”, a term often used for Taiwan, Xinjiang and Tibet. While China has not been specific about the extent of its claims, it uses a “nine-dash line” which “swoops down past Vietnam and the Philippines, and towards Indonesia, encompassing virtually all of the South China Sea”, to delineate its claims.

On the surface, it appears that Chinese leaders are relying on a historical argument to buttress their claims – China traces its interaction with the South China Sea back to the Western Han Dynasty. Thus, Beijing’s narrative about its claims begins as early as the 2nd century BCE, when Chinese people sailed in the South China Sea and discovered some of the region’s land features.

Show of force: A flyover of the US Navy Theodore Roosevelt Carrier Strike Group and the Nimitz Carrier Strike Group in the South China Sea on 9 Feburary (US Indo-Pacific Command/Flickr)

Scholars have meticulously catalogued the dubious nature of this history. And besides, the UN Convention for the Law of the Sea (UNCLOS) does not grant signatories the right make claims based on historical legacy, and the concept of “historic claims” lacks a clear basis in international law.

But this is not actually how China lays claim to 90% of the South China Sea. China’s abuse and misapplication of international law is a bit more complex. There are four levels that build on one another.

First, China claims it has the same rights as archipelagic states, those countries mainly made up of islands. One of the benefits of archipelagic status is that the waters between islands are considered internal waters, like rivers inside a country. Other countries have no right to transit these waters without permission. This archipelagic status is conferred through the UN, and only 22 nations claim it.

Spoiler alert: China is not one of them.

China is undeniably a continental country, but nevertheless, it drew straight baselines around the Paracel Islands and claimed the waters between the islands to be internal waters. Beijing has not done this explicitly for the Spratly islands area, but its reaction to the activities of other countries suggests that is its interpretation. My discussions with Chinese strategists reveal that China will likely explicitly draw baselines to claim internal waters between the Spratly Islands once it has the military capabilities in place to enforce it. (This is not an easy task, as the Spratlys’ sea zone is 12 times that of the Paracels, covering 160,000 to 180,000 square kilometres of water.) 

While international law may support the position of the US and Australia on legal behaviour within the EEZs, countries need to work harder to solidify this norm more broadly.

China then claims a 12 nautical mile (nm) territorial sea from the Paracel baseline, not from the individual islands, and in the Spratlys from many features that under international law are not awarded this right, such as artificial islands. Moreover, China’s interpretation of the territorial sea is that the state has the exclusive right to make, apply and execute its own laws in that space without foreign interference. But according to UNCLOS, all ships, civilian or military, enjoy the right of innocent passage through other states’ territorial seas. Moreover, the contiguous zone is considered part of international waters, and states do not have the right to limit navigation or exercise any control for security purposes.

Lastly, China claims 200 nm from the end of the territorial sea as its exclusive economic zone (EEZ), where it claims to have the right to regulate military activity. The US insists that freedom of navigation of military vessels is a universally established and accepted practice enshrined in international law – in other words, states do not have the right to limit navigation or exercise any control for security purposes in EEZs. Australia shares this view, but not all countries accept this interpretation. Argentina, Brazil, India, Indonesia, Iran, Malaysia, the Maldives, Oman and Vietnam agree with China that warships have no automatic right of innocent passage in their territorial seas. Twenty other developing countries (including Brazil, India, Malaysia and Vietnam) insist that military activities such as close-in surveillance and reconnaissance by a country in another country’s EEZ infringe on coastal states’ security interests and therefore are not protected under freedom of navigation.

In other words, while international law may support the position of the US and Australia on legal behaviour within the EEZs, countries need to work harder to solidify this norm more broadly.

Through these three positions alone on internal waters, territorial seas and EEZs, China lays claim to approximately 80% of the South China Sea. Then China uses the nine-dash line to cover the remaining territory and provide redundancy by claiming “historic waters” – i.e., that China has historically controlled this maritime environment – again, a view that has no basis in international law.

China International law, norms
Waters between islands and features considered internal waters; commercial transit requires PRC permission (claimed explicitly for Paracels). Only very few island nations considered archipelagos have a right to treat islands as a group; doesn’t apply to disputed SCS islands.
Territorial sea of 12 nm measured from outer perimeter of island groups; artificial islands and most features get a territorial sea. Territorial sea measured from each individual legally recognised feature; most PRC-claimed features don’t meet standard for any rights under international law.
Can regulate military activity within EEZ. Can only regulate economic activity there.
Claims rights to “historic waters” within nine-dash line; PRC yet to clarify full position. “Historic waters” meaning unclear but has no legal basis, confers no rights.

The US has taken steps to challenge the false legal basis of China’s claims. This is the main purpose behind freedom-of-navigation operations, or FONOPS – to demonstrate through action that the US does not accept China’s position that areas are not international waters but internal or territorial waters. In other instances, the US is signalling that it does not accept an area to be in China’s EEZ, although China would not have the right to regulate military activity there anyway.

But undermining China’s false legal claims will take more than military operations and harsh statements. In 2016, the Hague Tribunal ruled that China’s claims of historic rights in the South China Sea lacked legal foundation, China’s actions in the region infringed on the rights of the Philippines, and features in the Spratlys are not entitled to EEZs or territorial zones. Yet Washington’s ongoing refusal itself to ratify UNCLOS undermines the general effectiveness of pushing back against Beijing with legal tools of statecraft. Additionally, Washington squandered an opportunity to support the Philippines in enforcing the international legal tribunal’s 2016 ruling in its favour, further reducing the attractiveness for other claimants to challenge Beijing on legal grounds.

The US should not make the same mistake twice. It should support other claimants that may want to pursue legal action against China (Vietnam is currently considering this course of action). Then, when the tribunal rules once more against China, the US should lead the charge to enforce the ruling.

China is using all the tools of statecraft at its disposal to gain control over this vital strategic waterway. The US and its allies should do the same.


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