David vs. Goliath in the South China Sea: David Wins, at Least This Round

Editor’s Note: This article previously appeared in a different format as part of The Atlantic’s Notes section, retired in 2021.
The state-controlled People’s Daily responds to the international court ruling.

The ruling this morning by Permanent Court of Arbitration in the Hague in favor of the Philippines, and very strongly against China in their dispute over the South China Sea, was not surprising in its basic result. Most people following the issue had expected that China’s very sweeping claims would not hold up.

The foreseeability of that outcome is precisely why the Chinese government has preemptively been pooh-poohing the court and its legitimacy over the past few weeks, and lining up a ragtag set of allies to support its cause. This group includes none of the countries most affected by China’s expanded maritime activities, and it features those reliant on Chinese aid or trade. (Eg Cambodia, Liberia, Senegal, etc.)

But the sternness of the ruling, and its explicit criticism of the basic premises of China’s arguments, was more than most people expected. For the moment this is a placeholder note on ways to learn more about the ruling, its consequences, and China’s dismissive initial response:

  • Andrew Erickson, of the Naval War College, has been on this subject for a long time. You can read his initial assessment here, with links to related items.
  • ChinaFile has kicked off a conversation today with Erickson and a number of other China luminaries, which is very much worth reading. Sample from Peter Dutton, also of the Naval War College:
    “This decision is much more than a pyrrhic victory for the Philippines as some will be tempted to suggest. This opinion will have normative power that over the long run will and should affect the way every state thinks about the South China Sea in the future. Ultimately, the ruling’s power is not in its direct enforceability, but in the way it will inevitably alter perceptions about right and wrong actions in the South China Sea. Coercion will no longer stand with moral impunity. Even if indirectly, the opinion should therefore serve as the basis for improved bilateral negotiations in the future. It has significantly narrowed the scope of what is in reasonable and justifiable dispute and therefore should help the parties move closer to a final resolution of their differences.”
  • At the Lawfare site, Julian Ku of Hofstra offers his quick take. Sample:
    “Is it possible to win by too much? The complete and sweeping nature of the Philippines legal victory may make it harder for China to agree to any negotiations that do not exclude the award’s effects as a precondition. This could be a problem going forward.”
  • The Interpreter, an always-valuable international-affairs site from the Lowy Institute in Sydney, has not yet analyzed the ruling itself (time zones etc). But yesterday it had this preview article, about expected results of the ruling, by Derek Lundy.
  • One-time guest blogger Brian Glucroft has a roundup of the China-based reactions. The Shanghaiist similarly reports on China’s “we are not amused” response. Also see Quartz’s report on China’s preemptive criticism of the court.
  • Also see previous items in this thread for background on the controversy.

A final note on that evergreen theme, the destructive paralysis of national-level U.S. politics. The Philippines took China to court under the terms of the U.N. Convention on the Law of the Sea, often known as the Law of the Sea Treaty. As a matter of practical policy, the U.S. government says it adheres to terms of the treaty — and as presidents both George W. Bush and Barack Obama have supported the treaty and urged its ratification.

But treaties require a two-thirds vote of the Senate for ratification. And over the years enough Senators have opposed it to keep either the Bush or Obama administrations from moving ahead. Here is a sample of the latest big showdown, which occurred in 2012 while the Democrats still held a Senate majority. At that time 34 Senators, all Republicans, said they’d vote against the treaty, which means it couldn’t pass.

From Heritage Action, the conservative lobbying group, four years ago this week:

As of today, 34 U.S. Senators are on record promising to oppose the ratification of the United Nations Convention on the Law of the Sea if it comes to the Senate floor.  Because two-thirds of Senators present and voting are required to ratify any treaty, the long-stalled Law of the Sea Treaty is effectively dead.
Heritage Action, which led the conservative lobbying push, released the following statement from CEO Michael A. Needham:

America had little to gain through accession to the Law of the Sea Treaty – but much to lose.  Rather than affirming existing practices, it would have instituted a radically new, international legal regime.  The demise of the Law of the Sea Treaty not only represents a victory for American sovereignty, but also the American people.  For months, constituents have called and emailed their Senators, requested meetings, submitted letters to the editor, and organized in an effort to sink this dangerous treaty.  We commend the 34 Senators who stood with their constituents on the side of freedom.

Below is a list of Senators who have signed the letter or otherwise stated opposition:

1.       Senator Jon Kyl (R-AZ)
2.       Senator Jim Inhofe (R-OK)
3.       Senator Roy Blunt (R-MO)
4.       Senator Pat Roberts (R-KS)
5.       Senator David Vitter (R-LA)
6.       Senator Ron Johnson (R-WI)
7.       Senator John Cornyn (R-TX)
8.       Senator Jim Demint (R-SC)
9.       Senator Tom Coburn (R-OK)
10.   Senator John Boozman (R-AR)
11.   Senator Rand Paul (R-KY)
12.   Senator Jim Risch (R-ID)
13.   Senator Mike Lee (R-UT)
14.   Senator Jeff Sessions (R-AL)
15.   Senator Mike Crapo (R-ID)
16.   Senator Orrin Hatch (R-UT)
17.   Senator John Barrasso (R-WY)
18.   Senator Richard Shelby (R-AL)
19.   Senator John Thune (R-SD)
20.   Senator Richard Burr (R-NC)
21.   Senator Saxby Chambliss (R-GA)
22.   Senator Dan Coats (R-IN)
23.   Senator John Hoeven (R-ND)
24.   Senator Roger Wicker (R-MS)
25.   Senator Marco Rubio (R-FL)
26.   Senator Jerry Moran (R-KS)
27.   Senator Dean Heller (R-NV)
28.   Senator Pat Toomey (R-PA)
29.   Senator Chuck Grassley (R-IA)
30.   Senator Mitch McConnell (R-KY)
31.   Senator Mike Johanns (R-NE)
32.    Senator Johnny Isakson (R-GA)
33.    Senator Rob Portman (R-OH)
34.    Senator Kelly Ayotte (R-NH)


Just to spell this out: the set of international rules that both the Bush and Obama administrations felt would strengthen the U.S. hand, and which successive panels of members of the Joint Chiefs of Staff have endorsed, and which is the main limit at the moment on China’s territorial claims, is something the U.S. Senate cannot ratify, because of bloc opposition from one party.