U.S.–China Week: Tribunal countdown, THAAD deployment, Froman on new negative list (2016.07.11)

Welcome to issue 59 of U.S.–China Week. The big story on the agenda is what will happen in 12 hours or so, when the tribunal convened under the UN Convention on the Law of the Sea (UNCLOS) releases its award in the Philippine-Chinese arbitration case over South China Sea matters. Most of this issue is devoted to the best new materials I’ve found leading into that major event. Japan watchers meanwhile are just beginning to reckon with the ruling coalition’s new “super majority” in the Diet’s Upper House, making constitutional revision a concrete possibility, even if far from certain.

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SOUTH CHINA SEA
Governments and observers in China, Philippines, and United States brace and jockey before arbitration outcome Tuesday

With an UNCLOS tribunal award expected Tuesday at 11 a.m. in The Hague, dozens of analysts and officials have made predictions or sought to set the stage. Among the best analyses of the likely outcomes are a straight-forward take from Taylor Fravel; Bill Hayton’s laying bare of his predictions of the specific legal outcomes; and Andrew Chubb’s clear outline of the issues and added context on the concerns tribunal members may have.

National People’s Congress Foreign Affairs Committee Chair Fu Ying, who has emerged as a prominent forward-deployed Chinese government spokesperson in recent years, offers a clear restatement of the Chinese position declaring the arbitral proceedings illegitimate. Jerry Cohen of NYU convincingly argues that “despite Beijing’s endlessly repeated denunciations of the tribunal’s legitimacy—and even the competence and fairness of the arbitrators—China will be legally bound by the tribunal’s decision.”

U.S. and Chinese officials have spoken out on these issues, and Secretary of State John Kerry spoke with Foreign Minister Wang Yi about the South China Sea and other matters. Wang reportedly used the call to deliver now-familiar talking points. Deputy Assistant Secretary of State Colin Willett accused China of a “double standard” in rejecting UNCLOS here but “invoking its maritime rights and freedoms under the law of the sea in areas of the world where it is not a littoral state, but where it aspires for a greater role, such as the Arctic or in the Indian Ocean.” Deputy Assistant Secretary of Defense Abe Denmark noted a recent U.S. “enhanced tempo of military operations” in the region and said the Defense Department does and would continue to “provide critical support for diplomacy by providing a credible deterrent against the use of force.” (A press report said U.S. destroyers have patrolled within 14 to 20 nautical miles, but not within 12 nautical miles, of Chinese installations in the Spratly Islands in recent days.)

A Chinese Foreign Ministry (MFA) spokesperson suggested the Chinese government officially regarded the Spratly Islands as a single entity, raising the possibility that a response to some arbitration outcomes could include declaring straight baselines around those features, like China has done in the Paracel Islands. “The islands, reefs, cays, sands and the relevant waters of China’s Nansha Islands are interrelated and have always been taken as a whole,” the spokesperson said, referring to the Spratlys by the Chinese name. Similar language appeared last month in a paper by the Chinese Society of International Law supporting the official Chinese position that the arbitration is illegitimate. “The Nansha Islands, taken as a whole, is capable of generating a territorial sea, exclusive economic zone and continental shelf. … If the Tribunal takes jurisdiction over and supports the [relevant Philippine] claims, it will amount to an attempt to deny China’s territorial sovereignty over the Nansha Islands as a whole,” reads the executive summary. Thefull document also appeared on the MFA website.

The Philippine government, under the new president Rodrigo Duterte, sent mixed signals about its likely moves following the arbitral award’s release. Foreign Secretary Perfecto Yasay first said, “We can even have the objective of seeing how we can jointly explore this territory: how we can utilize and benefit mutually from the utilization of the resources in this exclusive economic zone where claims are overlapping.” A day later, Yasay seemed to walk back those remarks, saying, “we have to wait for the ruling and study and dissect its implications.” An MFA spokesperson explicitly called the arbitration one “unilaterally initiated by the Aquino administration,” leaving room for Duterte to break from his predecessor. Chinese statements did not leave wiggle room in many other areas.

ANALYSIS: U.S.–China Week comes out on Mondays, so I’ve happily avoided the requirement of instantly distilling on Tuesday what will no doubt be a long and nuanced document from The Hague. The lay of the land is relatively clear, however, on some limited matters. Probably realizing that at least some questions are likely to be answered in favor of the Philippine position, and having from the beginning rejected the tribunal’s legitimacy in hearing this case, the Chinese government has preemptively locked in a blanket opposition to whatever the award says. This has the virtue of being a clear position, despite the weak and misleading arguments Chinese representatives have advanced in its service. Chinese representatives have set an impossible standard for the Philippines and the United States in demanding all states adopt China’s view that the proceeding is null and void. Thus, regardless of outcome, the Philippines and the United States will take some action, whether through speech or on the water, that fails China’s impossible test.

It thus stands to reason that Chinese planners have a menu of responses planned for various scenarios and levels of intensity. Likely on that menu is the declaration of straight baselines around the Spratlys. If this occurs, some of the clarity potentially produced by the tribunal in terms of the maritime zones generated under UNCLOS by individual features might be blurred by a new Chinese claim of maritime zones emanating from newly drawn lines. The legitimacy of declaring such straight baselines in this geography is hardly relevant in the short term, since the immediate goal would be to deny others clear legal authority in criticizing China’s claims.

When it comes to the South China Sea disputes (to mangle Churchill), this is not the beginning of the end, nor even the end of the beginning. If anything, the best we can hope for is a new beginning of disagreement on improved terms—seemingly a very unlikely outcome given the players’ intensively pre-determined and incompatible stances.

NORTH KOREA
U.S. and South Korea agree on deployment of THAAD anti-missile system opposed by China

In a move that a State Department spokesperson said was “not connected whatsoever” with the impending arbitration outcome, the United States and South Korea announce that they had agreed to a deal to deploy the THAAD anti-missile system in South Korea. China’s government had warned against this move, claiming that the system’s capabilities would damage China’s national security and not accepting the argument that the system was necessary to defend against North Korea. The Chinese government urged a stop to the deployment, and U.S. Ambassador to China Max Baucus was reportedly summoned to discuss the matter. Commentators and reporters read the move as a potential marker of a collapse in previously improving Chinese-South Korean ties.

BILATERAL INVESTMENT
U.S. trade chief says new Chinese ‘negative list’ is a ‘serious effort’ but not yet good enough for U.S.

U.S. Trade Representative Michael Froman reportedly said the most recent offer from China in negotiations toward a bilateral investment treaty (BIT) showed “serious effort” on the Chinese government’s part, but: “It is still a fair distance awayfrom being acceptable to us, but we are going to continue engage the Chinese and underscore for them the kinds steps that are going to be needed both for the negative list and in terms of what kinds of disciplines we need to put in the text to create a high-standard agreement.” Froman was also in China this week for the G-20 trade ministers’ meeting.

CYBERSPACE
China hosts second UN-China meeting on cyberspace issues

“Cyber space, international rule-making, pragmatic cooperation on digital economy and Internet governance” were to be on the agenda at the second international symposium hosted by the United Nations and China, taking place in Beijing. Reportsdid not immediately make it clear whether any U.S. participants attended.

#USChinaWeek1966 <— follow this hashtag on Twitter for more
‘U.S. Sells Chiang Ships and Planes’

“Taipei, Taiwan, July 5, 1966—The Chinese Nationalists are purchasing United States naval vessels and aircraft to strengthen their forces. An informed source said today that four World War II converted destroyer-transports had been delivered under the program and that the Pentagon had approved the sale of four others. Another destroyer was lost at sea during a storm while enroute from the West Coast. President Chiang Kai-shek, who, during a conference in Taipei on Monday with Secretary of State Dean Rusk, reiterated his determination to return to the mainland, has been eager to bolster his amphibious forces. … United States officials would like to see the Nationalist Navy take over patrol duty in the Taiwan Strait from the United States Seventh Fleet.” Link.

(Source: The New York Times. This entry is part of an ongoing feature of U.S.–China Week that follows U.S.–China relations as they developed in another era of change and uncertainty, 50 years ago.)

ABOUT U.S.–CHINA WEEK

U.S.–China Week is a weekly news and analysis brief that covers important developments in U.S.–China relations and features especially insightful or influential new policy analysis.

Graham Webster is a senior research scholar, lecturer, and senior fellow of the Paul Tsai China Center at Yale Law School, where he specializes in U.S.–China diplomatic, security, and economic relations through research and Track II dialogues. His website is gwbstr.com.

Disclaimer: Opinions expressed here are my own (and I reserve the right to change my mind).

Subscription to U.S.–China Week by clicking here or e-mailing me is free and open to all, and an archive of past editions appears at my long-running website on East Asia and the United States, Transpacifica.

Contact: Follow me on Twitter at @gwbstr. Send e-mail to [email protected].

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