In the coming weeks, the Permanent Court of Arbitration at The Hague is expected to rule on a challenge to China’s extensive maritime claims in the South China Sea. The court is unlikely to decide in Beijing’s favor. But China has already refused to participate, calling the process “illegal,” and has pre-emptively rejected the judgement of the court.
Tensions are rising in anticipation of the decision. Experts warn of potential military confrontations, triggered by a displeased China, an emboldened Philippines—which initially brought the case—or a frustrated U.S. conducting more freedom-of-navigation patrols near Chinese-held reefs.
But a stand-off isn’t inevitable. By clarifying the legal status of the competing claims and increasing international attention, the court could reduce the asymmetry between China and its Southeast Asian neighbors and create a new opening for negotiations.
The ruling could support nations who want to move away from a Beijing-versus-Washington showdown and recast the debate as an effort to shore up governance by rules and multilateral institutions. It could even encourage Beijing to re-examine the cost of its expansive claims and begin taking incremental steps toward compliance with international law.
Categorically defying any decision against it would erode Beijing’s broad and long-term national interests. The Association of Southeast Asian Nations (Asean), the European Union and the G-7 have all issued statements calling for the respect of legal processes and have expressed thinly veiled concerns for China’s conduct.
Beijing dismisses such statements as instigated by Washington. But it should understand that many nations are legitimately invested in the lawful governance of the South China Sea. Almost half of the world’s cargo shipments, valued at about $5 trillion a year, pass through the region. Nations have stakes in freely accessing these vital shipping lanes and ensuring that their openness is guaranteed by law, not left to China’s magnanimity or the U.S. Navy’s might.
The implications of this case extend far beyond the South China Sea, testing the integrity of the United Nations Convention on the Law of the Sea (Unclos). China’s spectacular rise would not have been possible without the protection of international legal frameworks such as Unclos. Beijing now seeks to be the creator of its own rules-based systems, including the Shanghai Cooperation Organization and the Asian Infrastructure Investment Bank. But by cherry-picking which rules to respect, it risks the credibility of its leadership and undermines the system at the heart of its prosperity.
China could save face while demonstrating respect for international law first by showing flexibility on its so-called nine-dash line claim, which cuts into the exclusive economic zones of five other coastal states in the South China Sea. It’s the most visible display of China’s defiance of law-of-the-sea principles.
To start, Beijing could discontinue patrols or enforcement actions at the fringes of the nine-dash line and move to conclude talks with Vietnam on their shared boundary outside the mouth of the Gulf of Tonkin. This would erase one section of the dotted line and demonstrate Beijing’s commitment to bilateral negotiations.
Beijing should also help formulate a code of conduct for the South China Sea. This would commit all parties in the region to binding norms of behavior, and help restore Southeast Asia’s faith in negotiations and in China’s promised cooperation.
Freedom of navigation operations are designed to establish the principle of lawful open access, but they also risk goading Beijing into accelerating its military buildup. The Hague’s expected arbitration ruling offers Asean countries and their middle-power partners an opportunity to compel both China and the U.S. to invest in the building and preservation of multilateral frameworks and decelerate their destabilizing competition for naval supremacy.
For its part, Asean must present itself to China as a firm and coherent negotiating partner. Acquiescing to Beijing’s dominance or relying too much on Washington’s deterrence would unravel decades of effort toward regional self-governance. It would realize Southeast Asia’s nightmare of getting caught between two scuffling giants. And it would result in a more fractured and less stable Asia-Pacific.
The Hague tribunal’s ruling won’t untangle the multitude of South China Sea disputes, but it could prompt all sides to reassess the current collision course. How states respond will make the difference between progress towards global governance by multilateral rules, or a step back toward a might-makes-right world order.
Ms. Xie is a senior Beijing analyst for the International Crisis Group.