Amidst concerns over how a Trump administration will interact with China, especially with respect to trade, China’s President Xi Jinping told President-elect Trump during their recent telephone conversation that "The facts prove that cooperation is the only correct choice for China and the United States." According to a statement from President-elect Trump's presidential transition office, “the leaders established a clear sense of mutual respect for one another, and President-elect Trump stated that he believes the two leaders will have one of the strongest relationships for both countries moving forward.
President-elect Trump can prove his vaunted savviness at deal making by engaging in some give-and-take with President Xi over the issues of paramount importance to each country. He should follow his own advice, “Remember that in the best negotiations, everyone wins.” This approach to negotiations is in full accord with President Xi’s frequent call for “win-win cooperation.”
Sino-U.S. trade is important to the economic health of both countries. Imposing stiff tariffs on Chinese products, as Mr. Trump suggested during the presidential campaign, will not only end up raising prices of imports purchased by American consumers. U.S. exports to China, which have doubled in the past few years, will also be adversely affected by China’s ensuing retaliatory measures. President-elect Trump may be able to secure more flexibility from China on trade-related issues, to the benefit of American workers, by moderating the U.S.’s stance on such issues as China’s assertion of territorial sovereignty and maritime rights in the South China Sea. While during the presidential campaign, Mr. Trump sounded a hawkish note on the South China Sea issue, it was far from the focus of his foreign policy concerns. Once in office, President-elect Trump may view bilateral negotiations with China on trade, with the objective of securing changes that provide more relief for American workers, as well as cooperation in other vital areas of mutual concern such as fighting global radical Islamic terrorism, as more critical to America’s strategic interests than inserting itself into a regional territorial/maritime dispute. While he might make a quick show of muscle flexing to strengthen his negotiation hand, he could then agree to scale back U.S. military presence in the South China Sea from the Obama administration’s levels if he sees concrete progress on the trade-related issues he is most concerned about. “China will likely find a business-minded leader like Trump to be easier to influence than a political and ideologically minded leader like Clinton,” Jonathan Spangler, director of the Taipei-based South China Sea Think Tank, has predicted.
The Obama Administration’s Pointless Confrontation with China over the South China Sea
The Obama administration chose to engage in a smoldering fight with China over China’s build-out on various land masses in the South China Sea, but with nothing to show for it. The issue turns on the arcane designation of particular land masses as natural or artificial islands, low tide elevations, rocks or reefs, and what maritime rights, if any, ensue from such designations. As Stratfor, a leading geopolitical intelligence and analysis firm, has explained, “Beijing and Washington each have their own interpretations. China asserts that its South China Sea holdings are islands and are part of sovereign Chinese territory, giving them the full 12-nautical-mile territorial sea and a 200-mile exclusive economic zone. The United States says that while it has no official stance on maritime disputes, it interprets the holdings as either low tide elevations or artificial islands.”
The Obama administration has sent warships into the immediate vicinity of the land masses over which China has claimed sovereign rights, ostensibly to test China’s intentions and to assert a right to perform so-called “research” in waters that China claims to be within its 12-nautical mile territorial sea. It did so even though China’s activities to date in the South China Sea have not threatened any vital U.S. national interests, which Mr. Trump has stated as his primary concern to protect. The Obama administration's rationales for its actions fall into three categories, each of which lacks a credible foundation.
I. Freedom of Navigation Rationale
The most frequently cited reason given by the Obama administration for pushing back against China’s claims is to preserve the principle of freedom of navigation. It has been estimated that more than $5.3 trillion worth of shipping travels through the South China Sea each year, approximately one fifth of which is associated with United States trade. The Obama administration has sought to create the impression it is simply safeguarding the principle of freedom of navigation for the sake of continued unfettered commercial trade, and that the only threat to that principle is China. However, there is no credible evidence to date that China has actually interfered with other nations’ commercial maritime navigation rights that are recognized under international law. As William Johnson, a retired U.S. Air Force Officer and retired Foreign Service Officer explained, “It is disingenuous for the United States to claim that by using military force to counter the island-building, it is asserting the freedom of international shipping to sail close to rocks and submerged reefs — an action no merchant vessel is likely to take.”
The Obama administration has needlessly escalated tensions in the region based on a faulty premise. Given China’s focus on economic integration within the region and with the global economy, it would be against China’s own interests to take any military action that imperils freedom of commercial navigation.
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II. Solidarity with Allies Rationale
The Obama administration has also sought to show solidarity with U.S. allies in the Asian Pacific region as part of its so-called pivot to Asia. Japan, the Philippines, Vietnam, and Malaysia are amongst the neighboring countries in disputes with China over conflicting assertions of sovereignty in the South China Sea. However, there has been nothing close to any real military confrontation. This ultimately boils down to a local politico-economic dispute that the parties have been trying to resolve through multilateral and bilateral negotiations. Yet the allies try to use the specter of Chinese military expansion as an excuse to lure the United States into pursuing an aggressive defense strategy on their behalf, which is really meant to provide them with more negotiating leverage.
Former Secretary of State Henry Kissinger, who knows a thing or two about China, has described the South China Sea dispute as an example of regional “national rivalries.” The question the Trump administration must ask itself is whether it is really worth risking unintended consequences of a direct military confrontation with China over what amounts to a regional territorial and maritime dispute regarding a scattering of islets, rocks and reefs in the middle of the South China Sea.
The fact is that other countries in the region, most notably the Philippines, Malaysia and Vietnam, had actually commenced land reclamation and building on some of the land masses, including the construction of airstrips, before China did. It can be argued that China is simply taking responsive action to reinforce its long held historical claims of national sovereignty over these disputed land masses and enhance its deterrence capacity. At the same time, however, China has taken concrete actions to foster regional cooperation on a variety of economic and security-related issues through bilateral and multilateral agreements – the antithesis of a unilateral aggressive military strategy.
Moreover, China’s installations on the islands are not all military in nature. They include lighthouses to provide route guidance and navigation aid to vessels passing through the waters, as well as rescue and emergency relief centers. China has offered to share the benefits of such civilian purposed facilities with other countries. China has demonstrated its willingness to engage in joint exploration and development of maritime natural resources. It has also worked out arrangements with neighboring countries on joint access to fisheries irrespective of its territorial claims.
As to the military facilities such as ports, airstrips, radar facilities and other military buildings China is constructing on the islands, they can provide weapons platforms for land, air and sea-launched systems to defend its interests in the region and enable strengthened Chinese air and sea patrols in the vicinity. However, it is highly dubious that they are meant to be used to launch preemptive offensive military attacks against other countries or U.S. assets in the area. The islands are too small to support the kind of large military contingents and build-ups required for such offensive operations.
What further steps China might take to enhance its military presence on the islands will depend in part on what the U.S. decides to do. According to Beijing-based military expert Li Jie, “The Chinese leadership will decide which military options should be taken based on how provocatively the US challenges China’s national sovereignty in the aftermath of the rulings over the South China Sea.” The rulings Li was referring to are those of the Permanent Court of Arbitration in The Hague, which sided with the Philippines in a case over disputed maritime rights in the South China Sea brought by the previous government of the Philippines against China under the compulsory arbitration provisions of the United Nations Convention on the Law of the Sea (UNCLOS). The United States, by the way, is not even a party to the treaty under which the international arbitration panel purported to act. Yet the Obama administration has seen fit to lecture China on obeying an international arbitration panel decision, discussed below, that China justifiably considers to be illegitimate.
The Philippines, which should be the most disturbed by China’s negative response to the rulings, is now moving instead towards a closer economic and military bilateral relationship with China. On a recent trip to Beijing, the Philippines’ current President Rodrigo Duterte said he wants "separation from the United States" and showed a willingness to enter into the kind of direct bilateral negotiations with China regarding the South China Sea that China has been pressing for all along. China demonstrated its good faith by opening up the waters around the Scarborough Shoal to unfettered access by Filipino fishermen. Neither country felt compelled to change its formal legal position concerning the UNCLOS arbitration rulings. But they did not have to. Instead, they worked out a pragmatic arrangement under which China accommodated the Philippines’ core economic national interest in protecting its lucrative fishing industry while China did not yield on its sovereignty claims or remove any of its own vessels and facilities. President Duterte also entered into multibillion dollar agreements with China on infrastructure projects and loans.
China has significant trading partnerships with its other neighbors as well. In fact, China was the largest trading partner last year with the Association of Southeast Asian Nations, made up of countries which have disagreements with China over the South China Sea but value region-wide stability and shared economic prosperity as the more overriding objectives.
As Ernest Z. Bower, president of the business advisory firm Bower Group Asia, which operates in Southeast Asia, put it: “The U.S. must recognize that no Southeast Asia country can envision a stable and secure Asia without China being actively engaged and participating fully in economic integration, security cooperation and people-to-people ties.” Especially in light of President-elect Trump’s intention to withdraw from Trans-Pacific Partnership on his first day in office, China’s neighbors will most certainly draw closer economically to China irrespective of the South China Sea issue.
In short, the countries neighboring with China will act in their own national self-interest, which does not always correlate with the U.S. national interest. The converse is also true. It is not always in the national interest of the United States to put its nose into a regional dispute to which it is not a party. This is especially true so long as the parties themselves in the region are sufficiently motivated to negotiate their differences peacefully in good faith and there is no demonstrative encroachment on a vital interest of the United States such as freedom of commercial navigation. As former Secretary of State Kissinger has advised, the United States and China should “remove the urgency of the debate” between them over the South China Sea issue. The United States can be a more effective global leader in countering global threats such as radical Islamic terrorism and nuclear proliferation when it prioritizes its military resources in accordance with the gravity of the threat to the American people first and the free world.
III. International Law Rationale
The final justification that the Obama administration has offered for its show of military force in the South China Sea, including the deployment of naval warships, is to increase the pressure on China to abide by the rulings of the UNCLOS international arbitration tribunal. President Obama has warned that the international tribunal's judgment purporting to invalidate China's well-documented claims in the South China Sea was legally "binding" on China under international law. He is wrong. The tribunal acted like many transnational bureaucracies do in improperly seeking to expand its authority over sovereign states against their will. It decided to accept jurisdiction over what is essentially a territorial dispute, including a sea boundary delimitation dimension, which is outside the scope of UNCLOS. China has a compelling argument that the international tribunal erred in invoking the compulsory arbitration provisions of UNCLOS when China had exercised its sovereign right to reject the jurisdiction of the tribunal, based on UNCLOS’s opt-out clause. The tribunal’s final decision on the merits in favor of the Philippines compounded its original jurisdictional error by refusing to acknowledge the relevance or legitimacy of China’s well-documented historical claims that predate UNCLOS. The tribunal has no such general authority to retroactively extinguish historical rights claims of sovereign nations that pre-existed UNCLOS.
The UNCLOS arbitration panel set a bad precedent for other transnational institutions to use in attempting to override national sovereignty rights. As Cui Tiankai, the Chinese ambassador to the United States, stated, “if it happens to us, it could happen to anyone.” Indeed, the new Trump administration may be facing a challenge of its own to U.S. national sovereignty from another international court early in the President-elect’s first term.
The Office of the Prosecutor of the International Criminal Court (ICC) just issued an annual report to ICC member states that included a review of its long-running “preliminary examination” of the situation in Afghanistan. It said it had determined “there is a reasonable basis to believe” that atrocity crimes had been committed in Afghanistan, including “war crimes of torture and related ill-treatment, by U.S. military forces deployed to Afghanistan and in secret detention facilities operated by the Central Intelligence Agency, principally in the 2003-2004 period, although allegedly continuing in some cases until 2014.” The report alleged that the U.S. military “subjected at least 61 detained persons to torture, cruel treatment, [and] outrages upon personal dignity” and that the CIA acted similarly against 27 detainees. Although the United States itself is not a member state of the ICC, the prosecutor’s position is that the ICC has jurisdiction to conduct a more formal criminal investigation, which may lead to charges and a trial in The Hague, because the country where many of these alleged war crimes took place, Afghanistan, is an ICC member state. The chief prosecutor has indicated that her decision on whether to request the ICC judges to authorize a full criminal investigation can be expected “imminently.” Absent pushback from the new Trump administration, if the ICC reaches a decision that war crimes were committed by American personnel using enhanced interrogation techniques, even if conducted for the purpose of saving innocent civilian lives, the ICC may feel emboldened to go so far as to issue arrest warrants. Any country in the world can then arrest the Americans named in the warrants if they happen to be traveling in that country.
Once in office, the new Trump administration should do everything possible to head off a full-blown ICC investigation and trial. Mr. Trump would need to forcefully use the national sovereignty shield to protect U.S. personnel from detention under a ruling from an international court whose jurisdiction in this case the U.S. does not accept. However, it would be highly awkward for Mr. Trump to rely on the national sovereignty defense if he were to continue Barack Obama’s hectoring of China for defending its national sovereignty against the dictates of an international court which China reasonably believed had exceeded its jurisdiction.
Engaging with China need not be a zero sum game. President-elect Trump can afford to ease up the pressure on China over the South China Sea disputes that are currently being negotiated with its neighbors in return for bilateral agreements with China on fairer trade practices for the benefit of American workers and more cooperation in countering such serious threats to international peace and security as global jihad and North Korea’s nuclear program.
