Social Constructs, Material Realities and the Opportunity of Legal Solutions in the South China Sea

Journal of Political Risk, Vol. 4, No. 3, March 2016 

By Timo Kivimäki[1]

MANILA, PHILIPPINES - FEBRUARY 4, 2016 - A protester gestures during a protest rally against the legality of the Enhanced Defense Cooperation Agreement (EDCA) in front of the US Embassy in Manila, Philippines. (Photo by Richard James M. Mendoza / Pacific Press)

MANILA, PHILIPPINES – FEBRUARY 4, 2016 – A protester gestures during a protest rally against the legality of the Enhanced Defense Cooperation Agreement (EDCA) in front of the US Embassy in Manila, Philippines. (Photo by Richard James M. Mendoza / Pacific Press)

In East Asia, two approaches for maintaining stability have been especially fruitful: developmentalism and non-interference. This article investigates the possibility of supplementing non-interference and developmentalism by building a legal order. It will explore ways that take the social construction of social structures seriously and applies them in a constructivist manner to the analysis of interaction of social realities with material realities and purposive agency. The intention is to show that the social construction of realities is also a realistic perspective, and that the perceived material realities, too, are largely dependent on social construction for their causal power in the creation of the situation of the South China Sea conflicts.

Introduction

Regional stability is rarely neatly caused by exogenous materially constituted conditions. If it were, it would not help us to know the exogenous factors that mechanistically cause certain consequences, as human action would not be able to influence them. Similarly, if regional stability were simply in the hands of regional actors, there would be no need for knowledge about any of the mechanisms of stability, as actions of humans and states could at any time create whichever outcome we wanted. Avoiding conflict in the South China Sea would be simply too easy.

However, stability and non-violence are not simply externally determined; they are not merely caused by exogenous conditions. Neither is stability something that actors can easily create as they please. Rather stability and non-violence tend to be based on an interaction between social and material structures and peaceful actions of regional and extra-regional actors. In the South China Sea, and East Asia in general, two approaches for maintaining stability have been especially fruitful: developmentalism and non-interference. I have shown elsewhere (Kivimäki 2014) that the onset of conflicts has been prevented by an approach that I have called developmentalism (see also Tønnesson 2015). Since the end of the 1970s states have been pursuing economic development and leaders have assumed that the promotion of economic growth is their primary role. Subordinates of leaders, too, have expected states to be instruments of prosperity, and the legitimacy of states has therefore been increasingly based on this assumption.

Developentalism has influenced the way leaders and subordinates act, as well as the identity and role states have taken on. Since leaders have tried to tackle the problems of economic well-being of subordinates, there have not been existential reasons for subordinates to rebel (Narine 2002; Kivimäki 2014). At the same time the leaders’ concern for economic prosperity has made them less eager to resort to military means in the face of opposition. In inter-state relations, developmentalist motives have promoted peace between economically interdependent nations (Goldsmith 2007), even though this peace has been more dependent on the developmentalist attitudes than actual positive economic interdependence (Kivimäki & Kivimäki 2011). Thus developmentalism has reduced the probability of inter-state conflict onset, which has seen a significant decline compared to the first decades after WWII.

However, more important for the long lasting peace in East Asia[2] has been the second approach: increased respect for military non-interference in the domestic affairs of fellow East Asian states.  Respect for non-interference has reduced the intensity and severity of conflicts when developmentalist orientations have proven insufficient to curtail them. Military non-interference has diminished the destructive capacity of conflicting parties in existing conflicts, and it has also reduced the likelihood of conflicts spilling over to other states (Narine 2002; Kivimäki 2015a). Up to two-thirds of conflict fatalities in East Asia after WWII have been in conflicts that were originally interstate conflicts with disputes related to the political system of governance inside a country, rather than to a dispute in the relationship between states[3], but that became international through other states’ military interference. As soon as international interference occurred, the number of fatalities per battle month increased on average by 20 times. Up to 98% of fatalities in these conflicts were produced only after external powers had interfered in the conflict. After the establishment of ASEAN, such military interference has ended between member states and in all of East Asia after 1979 (Kivimäki 2014:114–120, These calculations are based on PRIO Battle Deaths Data version 3.0, see Lacina, 2009; Lacina & Gleditsch, 2005).

The problem of the South China Sea territorial disputes is that by and large, within the existing construction of states’ interactions, neither developmentalism nor non-interference is sufficient to maintain peace in the region. In the case of developmentalism, the South China Sea is perceived as a depository of natural resources, thus the drive towards economic development itself engenders the states’ competition for resources. Whichever energy barrel of oil or cubic meter of natural gas China captures, Vietnam, the Philippines or Malaysia cannot access regardless of what kind of joint development shemes one invented for the disputed territories.

Non-interference and respect for each other’s sovereignty is also impossible in the South China Sea, as the whole dispute is about whose sovereignty should be respected in each of the areas. China cannot respect Vietnam’s sovereignty in the Paracel Islands, since China does not recognize Vietnam’s claims over this region and conversely Vietnam cannot respect China’s assertions to these islands, since Vietnam claims they are part of its sovereign territory as well.

Consequently, claimants must somehow find new ways to maintain peace in the South China Sea. This chapter investigates the possibility of supplementing non-interference and developmentalism by building a legal order. This chapter will explore ways that take the social construction of social structures seriously and applies them in a constructivist manner to the analysis of interaction of social realities with material realities and purposive agency.[4] This chapter attempts to show that the social construction of realities is also a realistic perspective, and that the perceived material realities, too, are largely dependent on social construction for their causal power in the creation of the situation of the South China Sea conflicts. Yet, the intention of this chapter is not to deny the independent causal powers of material realities or that it would be easy to find practical alternative meanings to certain material realities that have been seen as pressing. The fact, for example, that the South China Sea are offers energy resources and nutrition to millions is a reality that is not useful to ignore or interpret in any other way but as a reality of survival.

Real or not

When searching for solutions to the territorial disputes in the South China Sea, we often assume that the military realities of the disputes are somehow fundamental and material, while the legal regulation of the regional stability is more ideational, and dependent on the claimant states’ good-will and respect for law. Legal arrangements are therefore not seen as stable, given that any claimant states that feel threatened by a legal interpretation can simply disregard it and resort to military power. Under this scenario, other powers will, too, have to reframe the dispute in military terms, as continuing to respect legal restraints would not be possible once another state resorts to using military force. This way of thinking of military realities as material and legal realities as ideational exposes any legal regulation of territorial disputes to a collapse under the escalation of military tension.

This chapter will take a constructivist, critical approach that exposes the ideative constitution of military realities and shows how legal interpretations can also create social structures and realities that force behavioural patterns and affect power relationships. Firstly, it argues that the functioning of military deterrence in the region depends on changeable ideative assumptions. Secondly, it demonstrates that the identities of the military actors in the territorial disputes are ideationally constituted and also subject to change. Thirdly, the chapter shows how legal constructs can become as effective at enforcement as military constructs. Even though it will not be possible here to empirically prove a potentiality (civilized legal regulation of territorial disputes in the South China Sea) that has not been actualized, the power of legal constructs will be shown otherwise. The fact that a changed identity of states (from revolutionary to developmentalist) and a changed normative constructs (the introduction of the norm of non-interference) has already transformed East Asia from world’s most belligerent region to a region more pacific than Europe, Americas and any other region in the world, suggests that social constructs would not be entirely powerless in the South China Sea either. And finally, after illustrating that both military and legal realities are relatively similarly constituted, the chapter shows the parts of the military construct that could be effectively reframed in terms of regional legal arrangements. Based on this, the chapter concludes by prescribing an explicit normative dialogue to complement the global normative foundation of the United Nations Convention on the Law of the Seas (UNCLOS), by strengthening the 2002 Declaration on the Conduct of Parties in the South China Sea (http://cil.nus.edu.sg/rp/pdf/2002%20Declaration%20on%20the%20Conduct%20of%20Parties%20in%20the%20South%20China%20Sea-pdf.pdf) into a legally binding Code of Conduct, as an alternative to the unilateralist enforcement of partisan normative constructs.

Are military realities cast in stone?

The material existence of powerful weapons systems, manpower and economic might often lead us towards materialist understandings of the military games states play. The visible material reality makes us believe that deterrence, defense and the rest of states’ military games are simply material realities. Under such an understanding, security in the South China Sea must be dependent on material military power – only by possessing greater military deterrence than their potential enemies can states guarantee their security. Yet if we go deeper in our investigation of the constitution of military power, we realize that the functioning of military deterrence and defense, military balance and threat requires interpretations that we cannot take as a given.  Moreover, these interpretations may actually be in the process of transforming. The material foundation of security in the South China Sea is not as solid as it looks.

If we critically examine “our security,” we immediately perceive both assumptions about “security” and “us.” The grammar of the discourse on security refers to safety that we have to guarantee with our material military power. However, in terms of the South China Sea conflict, China could easily gain safety by giving up its demands of the 9-dash line. Vietnam, too, would be safe if it no longer claimed the Paracel and Spratly Islands. Similarly, the Philippines could ensure safety by giving up its claim of Mischief Reef. However, somehow security seems to be more than just safety, as we would not think that we would be secure if we simply surrendered. Even if we always legitimize our security interests by references to our safety, meaning the lives of our people and the existence of our states, by security we also mean the integrity of the values that we want to defend even at the risk of physical safety. Surrendering their claims in the South China Sea would not threaten those countries’ safety, but only their demands, and yet these claims seems to be part of their security. Lippmann explains the association between safety from war and the political values we defend in an elegant way in his definition of national security: “A nation is secure to the extent to which it is not in danger of having to sacrifice core values, if it wishes to avoid war, and is able, if challenged, to maintain them by victory in such a war.” (Lippmann 1943:51). Military might is relevant to safety in the South China Sea only if losing the disputed uninhabited islands implied massive fatalities and loss of sovereignty, etc. to the littoral claimant states. Since it does not, the material military might actually only has something to do with political demands, not with safety and survival.

The consequence of the association between political values that we want to defend (say, our sovereignty in Mischief Reef) and safety in the security discourse is that we often feel that security in volatile areas can only be guaranteed by those powers with whose demands we tend to sympathise. In Western or, even more specifically, U.S. literature, which is dominant in the study of security, the United States’ role as the ultimate balancer is seen as crucial for peace. China’s rise is often viewed as the main security challenge and the catalyst of difficulties in the South China Sea. The U.S.-led order is seen to represent peace, while changes to that order will constitute conflict. But if we look at this more carefully, it is the U.S. terms of interaction (U.S. control over free navigation in international waters, U.S. military access, etc.) that U.S. power secures in the South China Sea, not safety. The framing of a rising China as a threat to safety (survival of people, etc.) in the South China Sea implies assumptions that are empirically questionable. If we look at previous behaviour we might be able to say that China’s rise is a challenge to U.S. dominance, but not really to peace. According to the best estimates of the Peace Research Institute, Oslo conflict fatalities database (Lacina 2009; Lacina and Gleditsch 2005), China has not been in a conflict that could be classified as a war (with at least 1000 annual fatalities) since the Sino-Vietnamese border war in 1979, i.e. 36 years ago. In contrast, the United States is currently involved in three wars. The fact that almost all scholarship, (Choo 2009; Christensen 2000; Ikenberry 2012; Johnston 2003; Mearsheimer 2001; Shambaugh 2013a) including many Chinese scholars (Yue 2008; Jia 2005), is focused on the question of whether China is going to be a threat is a result of the political nature of security (i.e. the integration of political terms within our thinking of safety) and the fact that American universities have been so superior, and thus dominant, in the study of international relations. The common assumption has often been that China’s rise is not disturbing if it takes place within the existing set of norms and rules, i.e. if China does not demand any political reconfiguration in its collaboration with other states. In other words, the Western-centric look seems to assume that China’s security has to be achieved through capitulation. Yet scholars differ in terms of whether China will accept the U.S.-dominated and authored rules (Christensen 2000; Ikenberry 2012; Lampton 2005; Shambaugh 2013b). Academics have pondered whether China is a status quo power or a non-status quo power (Johnston 2003; Yue 2008), as if one could call the South China Sea situation peaceful only if peace is sustained on its current terms. U.S. officials have explicated this view in their statements. Most recently, Secretary of State John Kerry declared that, “the United States welcomes the rise of a peaceful, prosperous, and stable China, and one that plays a responsible role in Asia and the world, and contributes to upholding the existing rules and the norms on economic and security issues.” (Department of State. The Office of Website Management 2014b). But surely the terms of interaction, under current rules or under other (perhaps better) norms has nothing to do with the definition of peace. Surely we could call it peace also if other powers yielded to Chinese demands, just as we could call it peace if China yielded to the demands of other powers.

Another problematic assumption hidden in the grammar of security is the idea of partisan safety. The definition always refers to someone’s security vis-a-vis another. It is grammatically possible for China to be secure from the Philippines in the South China Sea (for example, if China is militarily superior to the Philippines), while the Philippines has no security in relation to China. In this sense, security framing is not the same as peace-framing. It would not be possible for China to have peace with the Philippines if the Philippines did not also have peaceful relations with China. This way, the peace framing and the security framing are different. Security framing a partisan viewpoint to matters of peace and war. In security language it would be possible to say, as Major Boris of the 9th Infantry Division of the U.S. Army did in a briefing in Rah Kein, Vietnam, that the U.S. military had to destroy the village of Ben Tre and kill its people in order to secure it (Miller 2006). One would not be able to say the same within the peace frame: one cannot gain peace by waging war. The question is therefore not whether claims about material foundations of security are true of false, but rather, whether it is useful at all to consider conflict potential in the South China Sea in partisan security terms. As soon as we think of the possibility of conflict and are more interested in security than peace, we start seeing the build-up of military hardware as a problem rather than as an asset. It would indeed be tempting to claim that practice has shown that safety is better taken care of by leaders who view it in terms of peace and war, rather than security. The logic of a security dilemma, in which the increase of security by one reduces the level of security of another, indeed suggests that individual states cannot achieve security, but only an arms race and spiraling tension by thinking in partisan terms (Booth and Wheeler 2008; Hertz 1950; Hertz 2003). Thus it seems that safety in the South China Sea is not, after all, so solidly founded in material military capacities.

What about, then, the question of “us” in the puzzle about “our security”? The constitution of “us” seems very fluid and ideational. The war in Syria proves how fluid agency in international conflicts can be: many of the groups that resisted the enemy (President Assad) have joined another enemy, the ISIS of Al Qaeda. The material capacity that was supposed to secure “our side” is now a challenge to “our security” (Miller 2013; Sly 2015). Similarly, it would be perfectly possible to consider regional security in East Asia as something where there would be a certain amount of common collective regional, East Asian agency, where at least some of the current claimants were on the same side. It would also be possible for ASEAN to perceive itself as a bloc that bargains with China on territorial issues in the South China Sea. This way the military capacity of the Philippines would not be more threatening to Hanoi than weapons stationed in Saigon would be to Manila. Thus, whether someone’s material capacity constitutes a threat or a security asset depends on how we perceive agency in the South China Sea region. The question of who is “us” is not something we can determine objectively. It is always a matter of interpretation. Agency and the question of “who do we count on our side” have been interpreted in different manners and this justifies the claim that agency is not cast in stone. At the time, after the Reformation it was the religious orientation that defined states’ alliances and identities. A Protestant state did not fear a fellow Protestant state while a Catholic state needed to be wary (Fukuyama, 2011). Later, during the Cold War, the domestic political orientation of a country largely defined its position and coalitions in world politics (Kaldor, 2003, p. 117). A capitalist state did not fear another capitalist state, while a socialist state was friends with another socialist state. Today, China could not care less about a country’s domestic political inclinations and since the 1970s it has not tried to change any country’s political or economic orientation.[5] In the South China Sea, Vietnam is allying itself more and more clearly with the United States, despite the fact that no country, not even its former colonial master France or the current challenger China, have has as destructive wars with the country as the United States. This shows that military balance depends on how collective agency is construed in human and international interaction. Weapons controlled by an ally are a source of security only as long as allies remain friendly and united.

Even if we took the potential belligerence of the United States and China as a given, the meaning of military capacity would still be dependent on ideational elements: interpretations and agreements about reality. The reason why both China and the United States try their best to avoid a full confrontation in the South China Sea is that such a confrontation could lead to an all out war between the two countries. We have learned that mutually assured destruction is the logic directly derived from the material reality of nuclear weapons and mutual second-strike capacity. If one of two nuclear powers attacks the other’s military installations with all its might, the other would still be able to inflict intolerable pain to the attacker by hitting its civilian targets, cities and population centres.[6] The country that attacks first may die second, but it will nevertheless die (Gaddis 1982; McNamara 1967). This mutual deterrent keeps both sides wary of escalation of tension.

But the idea of second-strike depends on two shaky assumptions. One the one hand, both parties have to believe that the other is more sensitive about its own population. If I am more sensitive about the values I am threatening, my threats are not credible. The ideas of humanitarian intervention and the “Responsibility to Protect” are based on the suspicion that dictators of some countries might not be sensitive about the suffering of their citizens. At the same time it is motivated by a concern for the wellbeing of the citizens of another country. States have the right to intervene in each others’ domestic affairs, even militarily, if the other’s government cannot or does not want to protect its citizens (International Commission on Intervention and State Sovereignty 2005) and they have the motivation to do so because they are more concerned of the welfare of these citizens. The Western coalition of the willing had the right to oust Saddam Hussein and Muammar Gaddafi because the coalition cared more about the Iraqi and Libyan citizens than these ruthless dictators. The U.S. policy of war on tyrants (Bush 2002), not only doubts the greater sensitivity of authoritarian governments towards the suffering of their citizens, but declares that the United States, indeed, is more sensitive. But if the United States is more concerned about civilians, how can it influence a dictator by threatening to harm those that it itself is more concerned about? This goes against the logic of bargaining (Nash, 1950). How can the U.S. threat of a second-strike then be credible? If at any stage the U.S. assessment was that Putin or Xi Jinping does not care about his population, neither could be deterred from the first strike by a threat of a second strike that both Xi and Putin would then know the United States wanted to avoid more than they themselves wanted. To threaten with a second strike is like threatening to shoot one’s own leg if China hits U.S. military targets. Would it then be fair to say that the material military capacity that allows for the second strike isn’t really a solid foundation of security against nuclear war in a war in the South China Sea?

Finally, there is the problem of whether mutually assured destruction is a convention that can be sustained in today’s world. When one leader can persuade other heads of state by threatening to punish its own innocent civilians we are mobilizing a discourse that we use against another enemy. Punishing innocent civilians in order to affect political decision-makers is a strategy that in other contexts is called terrorism: according to the Section 2656f(d) of Title 22 of the United States Code (http://www.state.gov/documents/organization/65464.pdf) an action by a non-state entity or a clandestine agent is terrorism if it is “premeditated, politically motivated violence perpetrated against non-combatant targets”. The war on terror, which is about the only strategic priority where China and the United States can see eye-to-eye with each other, could also make the logic of second-strike and Mutual Assured Terror/Destruction crumble. Its ethical foundations cannot necessarily be sustained.

Military security in the South China Sea seems to be very much constituted by ideational factors, interpretations and assumptions. Furthermore, we cannot be sure if the ideative constructs that we anchor our view of military realities in the South China Sea are sustainable. As was shown above, they seem somewhat shaky.

Foundations of legal realities in the South China Sea

How we interpret the world cannot usually be judged by the criteria of truth. We cannot say whether we should conceptualize what happens in the Spratly Islands as a matter of security, i.e. in a partisan manner, or if we should look at it as a relational matter. Furthermore, we cannot put claims about social constructs, such as the validity of legal claims, to an empirical test, simply because of the fact that historical claims are valid if we consider them valid, while they are not if we do not deem them to be so. However, if we consider what happened in Mischief Reef in 1995 between China and the Philippines a security question, this framing gives meanings and rationales to different types of policies than if we consider it a matter of peace and war. Most simply, as discussed earlier, military power is a positive feature for security and a negative factor for peace, and thus, depending on our framing we will either opt or refuse to opt for military solutions.

Similarly, then, it is largely a pragmatic issue of whether we should consider legal claims in the South China Sea valid or not. This way our ideative construction of realities in the South China Sea are materially and socially grounded, as our construction has material and social consequences to which we attach preferences. Thus the question of whether we consider military or legal realities as real in the South China Sea is a matter of practicality. Of course the Philippines alone cannot decide whether or not to frame the status of Mischief Reef as a legal question, since to make it such would require a similar orientation from China, and perhaps also from ASEAN. Yet, the reality of legal regulation of territorial disputes is a matter of will, and the decision to consider it as such could have positive material and social consequences. In the long run such an orientation of the littoral states could become the only materially viable solution, given that developmentalism and non-interference alone cannot prevent a physically destructive war in the region.

From that point of view, one could argue for legal realities, rather than military ones, since the littoral states would undoubtedly be better off if they all accepted to deal with the territorial disputes in the region as a legal issue. Such an approach would adversely affect the material consequences, as resources would no longer be wasted on an arms race. In this way, legalism in the South China Sea is not simply idealism, but materialism, and if we think of the risks involved in the possibility of the United States being dragged into regional conflicts due to its alliance commitments, it would probably be credible to say that legalism is more desirable and, indeed, more realistic than militarism in the South China Sea. Accordingly, it would probably be more realistic to think that peace in the area will be dependent on whether or not the countries involved in the territorial disputes manage to initiate and continue their normative dialogue and create legal norms that could guide interaction in the region, rather than assuming that peace can be achieved through military defense and armament.

Even if the assumptions behind the power game in the South China Sea could be re-examined as based on (often disputed) ideas and interpretations, this does not mean that brute power would be obsolete in the resolution of these disputes. Before territorial disputes can be resolved legally, the parties must negotiate and agree on legal norms and their common way of interpretation. Normative consensus has to be bargained, and in this bargaining brute power does influence resulting norms. Of course, it is useful for all countries to not contribute to a situation in which threatening and the exercise of brute power completely determines the result of the normative consensus. If this were the case, and brute power could be used at will without normative constraints and nobody would be safe, as even the most powerful party is sometimes vulnerable to violence. Furthermore, there are arguments that appeal to commonly useful general principles, and these arguments limit the effectiveness of brute force in normative bargaining. This is why one should not think that only arguments that emanate from brute power can be persuasive in normative bargaining. Yet, it is undeniable that those powers that can make reaching an agreement necessary to their opponents will also wield negotiating strength in normative bargaining.[7]

The parties’ common interest in the reduction of costs of interaction creates common social pressure for normatively acceptable behaviour. If norms have no relevance, violence is used more, which is costly for all. The formation of international regimes and institutions (Young 1989), as well as even the historical formation of state-agency (Kaldor 1999; Giddens 1985; Fukuyama 2011; Pinker 2011; Elias 1982) are examples of the power of such social pressures.

Social pressures come with changes in identity. When describing a major breakthrough in the development of the Southeast Asian normative regime – the birth of the ASEAN Charter – one of the key architects of the Charter repeatedly referred to the Southeast Asian desire to handle things as “civilized nations” (Woon 2009). The will to achieve progress in the reduction of transaction costs in Southeast Asian international interactions became in this way associated with the identity of Southeast Asian countries as “civilized nations.” Any violations of the legalism of the Charter could therefore be viewed as a sign of a nation’s lack of civilized character. While this identity issue does not have huge causal power in Southeast Asia, one only needs to look at the identity associations in the European Union (as loyal European civilizations) and member states’ obedience of the EU rules, to see that identity reasons could also become meaningful in the South China Sea disputes.

However, the more thick the network of interaction in the South China Sea area is, the more states benefit from principled bargaining, where transaction costs are not caused by constant demonstrations of brute power. States cannot continue to impose their norms in an ad hoc manner by means of force as interaction deepens. That would be too costly. Principled bargaining would need to be an option to that. This means that in a well-functioning regional interaction, legal competence rather than brute power becomes very useful as an instrument of power. If we look at the negotiation on the ASEAN Charter we can see how the smallest of ASEAN nations, Singapore, managed to push through its agenda effectively due to the strong legal team it mobilized for the negotiation (Woon 2009; Nguyen 2009; Pitsuwan 2010). This way the reality of Southeast Asian respect for legal forms and the commitment to a civilized identity have become materially consequential institutional facts.

All this creates very material realities for individual states: for an individual nation’s inability to adjust to the norms can mean costs, social pressure and loss of face, let alone eventually also institutional sanctions.

How to move forward towards a civilized order in the South China Sea?

It seems clear that South China Sea dispute would be better managed if the solutions were founded in consensus on a mutually binding set of rules. In this way a legalistic method of dealing with territorial disputes seems more realistic than a militaristic way.

All disputants have declared their consensus in the 2002 Declaration on the Conduct of Parties in the South China Sea[8] on several elements of the code of conduct, including the freedom of navigation in and overflight above the South China Sea, commitment to the resolving of disputes without the use of force or threat thereof, commitment to the refraining from inhabiting on the presently uninhabited disputed territories and many types of dialogue and informing of actions that otherwise could seem alarming, It would seem natural that the next step from a declaration would be a legally binding code of conduct. This has been suggested by several scholars (see for example Pham 2014). There are three main problems one could identify with this path. Firstly, some have suggested that China’s assertive policies with the buildup of both institutional and material infrastructure in the disputed areas prove that China does plays a double game of declaring one set of principles and acting upon another. According to this view, China still uses an offensive realist security framing for its actions in the area. China’s real framing sees the South China Sea as a security problem and thus activates military primacy and partisan understandings of the disagreements. Such a foundation would only be useful if China saw its military strength as superior and could alone force others to yield to its demands. Yet, a militaristic approach would result in uniting all other claimants against China, not only politically and militarily, but also economically. In this situation the benefits of such dominance would not justify the costs. Going against the self-declared rules against hegemonism (Deng 1978), interference (Five Principles of Peaceful Cooperation. 1954; Xinhua 2014a), and dominance of one country over another (Xi 2013; Xi 2012) would be tremendously damaging to China’s interests, image and position in East Asia.  This would be even more the case if East Asia could see itself as a normative community where a violation against common rules weakens the civilized order and harms all states. If military framing could be compared with the legal framing in terms of its outcomes’ practicality, it would be possible to demonstrate that a move towards a more legalistic framing of the disputes in the South China Sea would constitute progress.  Avoiding the costs of military developments in the conflict would be good for all, even for China, the strongest nation.

Another possibility is that regional states are deluded by the realist fallacy of the naturality of military framings of territorial disputes. Due to the misunderstanding that normative regimes are less real than military constructs, the parties have not paid sufficient attention to the development of the normative regime. The Jakarta process during the 1990s was merely focused on the management of the maritime areas that lacked a commonly accepted sovereign. The process was not able to discuss the divisive matters of sovereignty, as the littoral states felt that focusing on unifying rather than divisive issues was part of the reason why they had avoided conflicts up to that point (Djiwandono 2000; Djalal 2000; Townsend-Gould 2000).[9] Yet, mutual confidence-building is not a sufficient foundation for peaceful relations, unless one tackles the material conflicts of interests that the relationships between the littoral states contained. Somehow the differences in the interpretations of the norms regulating the region had to be overcome to avoid costly and violent demonstrations of sovereignty in the area of overlapping claims and related crises. Trust and confidence are not enough if countries constantly have to demonstrate and enact their sovereignty by arresting fishermen from other countries in the disputed areas, and if they have to protect the rights of their own fishermen by means of naval power. Whatever the level of trust and confidence is, eventually, there will be costly conflicts unless the disputes are dealt with and robust normative foundations are developed for international interaction in the area.

The third problem in the moving of legal regulation from declarations to legally binding codes could be that especially China sees the current practice of implementation of international legal norms as biased and one-sided. The Declaration of the Code of Conduct of 2002 (ASEAN Secretariat 2002) was a major normative step in the path to greater stability of the crisis. If countries were willing to agree on the rules of how to quarrel before finding a solution to the question of whose sovereignty exists in each of the disputed maritime territories, this would make quarrelling much safer. But the resulting Declaration did not settle the dispute. In fact it did not even begin to do so. Without a solution, littoral states effectively began to escalate the conflict potential in the South China Sea by forming tighter alliances with extra-regional great powers (Reuters 2014) and by building military infrastructure in the South China Sea (Reuters 2015). The Philippines, Vietnam and the United States claim to tighten military cooperation simply to counter the growing assertiveness of China in the South China Sea (Department Of State. The Office of Website Management 2014b; Parameswaran 2015; Department Of State. The Office of Website Management 2014c; Orendain 2015), while China claims to need to act assertively to counter the increasing illegitimate military activities of the United States, who it perceives to be an outsider in the region (Hua 2015; Xiaohui 2015).

On 30 March 2014 the Philippines introduced a new step in the creation of a normative consensus by referring its territorial dispute in the South China Sea to the Permanent Court of Arbitration at The Hague. Its case is based on the United Nations Convention on the Law of the Seas (UNCLOS, United Nations 1984), especially Annex VII of the 1982 UNCLOS that defines the possibility of disputing states to seek arbitration in a question related to maritime territorial disputes. It was, according to Filipino authorities, time to activate this opportunity to arbitrate the legality of the Philippine’s and China’s competing maritime claims (Department Of State. The Office of Website Management 2014a). However, given China’s distrust of mechanisms of global legal governance on, and in the absence of locally accepted and credible normative alternatives, the Chinese viewed this offer of arbitration as a violation to the Declaration on the Code of Conduct, which prescribed negotiation between disputants (Xinhua 2014b). The United States has not ratified the UNCLOS itself and yet China feels it is using the legal framework to push other states. While the United States honors the main principles of the UNCLOS (and claims that China does not always do that), it is difficult for China to accept the idea that it would have to commit itself stronger to international norms if the United States has not done even what China already has done. Complying with norms voluntarily for now is not quite the same as committing to them.

For China the arbitration initiative was seen as an effort to internationalize the conflict and to bring the United States into the normative debate. The fact that the United States has not committed itself to the treaty has been an important problem in the development of the legal reality of civilized interactions in the South China Sea. When a country that itself does not commit to the legal framework assumes the role of promoting its legality in the area, this mobilizes old anti-colonialist sentiments, and gives the legal framework a negative connotation. This same problem can be seen in several issue areas that are trying to adopt a legalistic handing of the disputes (Jeffrey 2015).[10]

Referring to the “”colonialist” asymmetry in the commitment to the UNCLOS, China used the Article 9 of Annex VII “”Default of appearance” and Article 25 of the Rule of Procedure of the Arbitral Tribunal, that which allows it not to not accept arbitration. China also cited the exemption clause under artice 298 of UNCLOS to not be subjected to compulsory arbitration under the article 287, Annex VII regarding territorial disputes. For many, this showed that China was trying to wiggle out of its own commitments in the UNCLOS, but the refusal could also relate to the perceived Western-bias in the implementation of the UNCLOS and other legal norms on international disputes. This does not mean that the result of the arbitration would not be binding to on China, despite the Chinese refusal to accept the legitimacy of the jurisdiction of such arbitration. It seems clear that law itself has little power in international disputes, unless behind it is supported by a mutual commitment. Without the U.S. commitment to the UNCLOS, and with the perception that UNCLOS is manipulated by the United States, despite its refusal to commit to its normative framework,. Law alone, without a commitment to uphold it by all main powers, cannot wield causal powers influence in the settlement of maritime territorial disputes. Yet, since there is the legal instrument of the Annex VII of the UNCLOS of 1982, which China has signed and ratified, it would be possible to try to strengthen the normative consensus behind the law. This would, however, necessarily have to tackle the problem of legitimate concerns that international law is in the hands of the powerful Western states, against whom it can never be used. Chinese commitment to UNCLOS and more generally to international law that could at times be used against its own interests would probably be possible to negotiate only as a quid pro quo to concessions that could make UNCLOS and more generally international law (say, for example, the Rome Statutes of the ICC) applicable also in situations where legal norms could be in contradiction with the interests of the Western powers. The refusal of the United States to ratify UNCLOS, and the Rome Statutes of the International Criminal Court, and the U.S. tendency to refuse arbitration and reject arbitration rulings results even from the international legal regimes in which it participates,[11] renders it incapable of leading the development of a real, powerful, legal normative order that we see regionally developing in the ASEAN and that we have previously seen developed in Western Europe within the EU. In absence of such leadership, states involved in the South China Sea dispute are left to develop a regional order regionally by means of regional normative dialogue that finally tackles the core disputes moving beyond measures to build confidence. However, such a dialogue could be challenging, given the asymmetry of bargaining power between China on the one hand and the other claimant states. Success would likely hinge on  ASEAN’s ability  to tighten its unity in its policies towards China, on China accepting a collective dialogue partner in ASEAN and agreeing not to play ASEAN states again one another in issues related to the South China Sea dispute.

Yet even if a real China-ASEAN dialogue was were possible, a more comprehensive solution cannot be expected without U.S. participation. Undoubtedly achieving results would be difficult under a formula that gives the United States uninhibited freedom of action in its self-assumed role of the guardian of the freedom of navigation in international waters, including those in the South China Sea. China is unilaterally building capacity to assume such control, and this unilateral build-up can probably only be ended by balanced means. A solution cannot be one that inhibits limits China to legally regulated forms of control, while leaving the United States outside such inhibitions.

JPR Status: Working Paper. Peer-reviewed 3/3. Archived 3/9/2016.

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Footnotes

[1] Timo Kivimäki is Professor of International Relations and Director of Research at the University of Bath, England. His most recent books include Paradigms of Peace (London: Imperial College Press, 2016); The Long Peace of East Asia (Farnham: Ashgate, 2014) and Can Peace Research Make Peace? (Farnham: Ashgate, 2012).

[2] East Asia in this chapter includes both Southeast Asia (ASEAN states and East Timor) and Northeast Asia (China, Taiwan, Mongolia, Japan and the Koreas).

[3] This does not mean that external powers did not affect the framing of these intra/state disputes. Especially during the cold war many intra-state disputes on governance were framed by the international division between the communist and capitalist worlds.

[4] By this interaction I mean the mutual constitution of agency and structure (material and social) as is theorized in the constructivist literature (Wight, 2006). To put is simply, this interaction means that the action of states, and leaders and individuals is constrained and motivated by the material and social structures that assign roles and offer strategic choices to actors, but that actors can also, within these constraints, influence the transformation of both social and material structures. This is why I speak of approaches that interact with realities rather than talking about determination or voluntary action.

[5] To be totally accurate, one should probably say that Chinese support to armed communist insurgencies ended only in the mid-1980s, with the agreement with President Ne Win of Burma that ended the Chinese support to the Burmese Communist Party.

[6] The original theory of Mutual Assured Destruction (McNamara 1967) was explicit of the fact that at the end of the day nuclear deterrence lied in the ability hit and cause intolerable damage in the population centers of the enemy even if country’s nuclear capacity has been weakened by the enemy first strike. Sue to the ethnical problems with the idea of hitting civilian targets nuclear deterrence theory is currently often veiled with expressions that hide the idea of civilian targeting in extreme situations. Yet, such option still seems to exit in discussions on nuclear deterrence, as the recent debate around the statements of UK’s opposition leader, Jeremy Corbin demonstrate Kivimäki 2015b).

[7] I have developed a model (in Kivimäki, 2002) within which it is possible to understand the role of brute power and principled arguments in the same framework. This model can be used to and determine when brute power will yield effective results in territorial disputes of South China Sea and when principles are stronger than power.

[8] See,http://cil.nus.edu.sg/rp/pdf/2002%20Declaration%20on%20the%20Conduct%20of%20Parties%20in%20the%20South%20China%20Sea-pdf.pdf

[9] Hasim Djalal chaired talks at the Jakarta Process negotiations while the process was, until the turn of the century, funded by the Canadian International Development Agency. Soedjati Djiwandono, a scholar and a jourmnalist, was one of the leading experts of the Jakarta Process, along with Ambassador Djalal.

[10] According to an official South African statement (Jeffrey 2015) explaining the refusal of the South African justice system to implement the ICC arrest warrant on Sudan’s resident Al Bashir: “In our view, however, that the ICC is not the court we signed up for. It has diverted from its mandate and allowed itself to be influenced by powerful non-member states. We signed up for a court that was going to hold human beings accountable for their war crimes regardless of there they were from. We perceive it as tending to act as a proxy instrument for these states, who see no need to subject themselves to its discipline, to persecute African leaders and effect regime change on the continent.”  (Emphasis added). The Chinese declarations in response to the arbitration effort reflected the same logic: The United States cannot push forth normative limits to the actions of developing countries if it does not itself commit to these norms (Xinhua 2014b).

[11] For example, in the so-called Nicaraguan case, the International Court of Justice ruled against the United States, and US refused to accept the ruling. The International Court of Justice was, in this case, unable to affect the practices of international interaction, due to the lacking U.S. commitment to the idea that the international law could not only be used to regulate other countries, but that it could also be used against its own interests. Yet, of course, there are also cases where the U.S. has reconfigured its behavior due to legal constraints. The United States has been accused of exceptionalism, but it is not a rogue state, generally outside the international law