South China Sea Disputes And The Us-china Contest, The: International Law And Geopolitics. James Chieh Hsiung

      Introduction

      The South China Sea (SCS) region has become a dragnet of international conflicts, on a scale often compared to the disaster-prone Middle East. In a way, its tensions may be more treacherous, as they also embroil two giant powers in an intricate contest: the United States, the extant superpower, and China, the emergent superpower.

      To begin with, the tensions were endemic to the region with long-standing disputes due to the overlapping claims to parts of the SCS advanced by its surrounding neighboring states. The competing claimants include China (both the mainland and Taiwan), Vietnam, the Philippines, Malaysia, and Brunei. Regional competition intensified after 1968 following reports that flaunted vital natural resources (oil and natural gas) under the SCS seabed, as noted in Chapter 1.

      Of late, the conflict-ridden milieu became more acute and sinister, as the U.S.–China contest deteriorated. Though it laid no claim to any part of the SCS, the United States was alarmed by the rise of China, and hence the attendant “China threat” scare trumpeted by many neorealist International Relations (IR) analysts and media gurus alike.

      The SCS imbroglio, in fact, entailed two separate tangles: (a) a legal tangle bedeviling China’s relations with its Asian competing claimant neighbors, whose respective positions are compared and analyzed in Chapter 2, and (b) a geopolitical tangle at the heart of the U.S.–China contest. For the Chinese, the two tangles are interrelated in that, for instance, the legal assault by the Philippines by filing a complaint against China in 2013 to a Permanent Court of Arbitration (PCA) Tribunal was egged on by Washington, which provided expert legal assistance. And, its own refusal to participate in the arbitration followed by its rejection of the Tribunal’s final award brought upon itself a scofflaw stigma that only resulted in China’s further isolation. This in turn made the U.S. naval surveillance in the SCS, right under China’s nose, sound more “justified” under the pretext of protecting the freedom of navigation.

      China’s nonparticipation, as we try to show in Chapter 4, turned out to be a blessing for the Philippines, which had an opportune chance to both pick the arbitrators and to name the law to be applied by the Tribunal. Thus, the 1982 U.N. Convention on the Law of the Sea (UNCLOS III), preferred by the Philippines, became the exclusive source of law against which China’s claim, based as it is on the concept of “historic waters,” was to be evaluated. Thus, China’s loss was a foregone conclusion, because the UNCLOS III is totally silent on the issue of “historic waters,” which, nevertheless, finds firm support in general international law (as opposed to treaty law), as Chapter 3 tries to show.

      An injunction in the preambular part of UNCLOS III declares: “matters not regulated by this Convention continue to be governed by the rules and principles of general international law.” The arbitral tribunal, however, totally disregarded the injunction. Parenthetically, this opens up a potential avenue by which China may be able to vindicate its own rights and exonerate itself from the undeserved scofflaw stigma, as we ascertain how this can be done in the concluding chapter.

      As it was suggested in some quarters¹, the U.S. attention to the SCS region was drawn out of a perceived injustice in which an Asian ally (the Philippines) and an emerging partner (Vietnam, after 1975), among others, were being “bullied” by the more powerful and “assertive” Chinese claimant. However, I would like to see whether it might also be true that the United States was drawn by its geopolitical instincts to the imperative of combating the alleged China threat. As such, the SCS just became a convenient stage on which the U.S. geopolitical contest with China unfolded as a consequence.

      Punctuating the gravity of the great power contest, rumors of a war, possibly imminent, between China and the United States took off in the days immediately after the election of Donald Trump as the U.S. President in late 2016. Scholarly speculations zeroed in on a war snare known as the Thucydides Trap, named after the ancient Greek historian who studied and pontificated on the Peloponnesian war as resulting from Athens’s rise and the fear that it instilled in Sparta. We devoted, not one but two chapters (Chapters 6 and 7) to an in-depth examination of how true the rumored war between the United States and China would come about in reality. Contrary to the habitual disregard of history in most media reports, these two chapters go through the long historical background of Sino–U.S. relations, beginning from the 19th century and continuing on through the ups and downs in between until their normalization after 1979, only to be marred by the “China threat” scare stemming from China’s relentless rise after the turn of the new century. Chapter 6 tries to see if the past sheds any light on the current clash of visions, based on mutual