Maritime and Territorial Disputes in the South China Sea

Faces of Power and Law in the Age of China's rise

Yih-Jye Hwang, Edmund Frettingham, Yih-Jye Hwang, Edmund Frettingham

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000357844
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

This edited volume rethinks the relationship between power and law in the age of China's rise by examining recent developments in the South China Sea (SCS).

The contributors explore different interpretations of international law on the legal status of the contested islands and rocks and provide detailed analyses of the contested concepts and provisions, the 2016 ruling by the SCS arbitration tribunal, as well as the environmental, economic, and political impacts of the ruling. This book facilitates a more meaningful and productive dialogue over the intersection, interaction, and interdependence between power and law in the context of the SCS. Assessing the interactions between political, legal, and normative forces, it provides insights into the specific dynamics of the dispute and the shifting security landscape in the region, but also offers a basis for thinking more deeply about the broader rise of China.

This book will appeal to both students and scholars of IR, International Law, and Asian Studies and those engaged in research on the SCS disputes, the rise of China, and with a theoretical interest in law and power in international affairs.

1 The rebalance under the Obama administration

Transformational leadership and selective engagement

Tanguy Struye de Swielande

Introduction

At the end of the Cold War, the thesis of the “end of history” argued that democracy and capitalism would represent the future, and the Western model would conquer the world. Twenty-five years later, this model is being challenged. For Layne (2011):

The end of America’s unipolar moment will cause major changes in international politics. Under the Pax Americana the world has enjoyed a long era of great power peace and international prosperity. This holiday from history, however, is coming to an end and international politics is headed back to the future. With the end of American primacy, the real post-American world will enter an era of de-globalization, rising nationalism and neo-mercantilism, geopolitical instability and great power competition.

(p. 160)

Indeed, new centres of power have emerged. Today the world is a complex environment, characterized by both near- and long-term challenges where different interactions at play remain to be apprehended and understood. There is also an economic and partially political shift, a redistribution of power from the “West to the Rest” on the classical state power chessboard. In this regard, the Asia-Pacific region is now the new hub of world affairs. The region currently forms the epicentre of world affairs and brings together the majority of great powers (emerging and confirmed), most nuclear powers, and more than one third of the world population. Even though the region is globally the new major economic driving force, many security challenges remain, such as piracy, terrorism, proliferation, natural resources, and border issues. Indeed, economic interdependence has not evacuated the risk of war. This risk is especially present in the case of the Korean peninsula, the issue of Taiwan, and the maritime border disputes in the South China Sea.

In the current context of transition of the balance of power towards the Asia-Pacific, the zone extending from the Gulf of Bengal to the Sea of Japan is of an ever-growing vital interest for Washington. Although the United States is still dominating the region, its control is less impressive than in the past as Asia undergoes profound changes. Furthermore, as mentioned in the document Sustaining US Global Leadership: Priorities for 21st Century Defense, the United States has reached an “inflection point”, and while the words “relative decline” or “overstretch” are not pronounced, the “unipolar moment” as defined by Krauthammer is ending (Kennedy 1987, Department of Defense 2012, p. 1). With that in mind, the Obama administration established its priorities and reinforced its diplomatic and military presence in a push to ensure the Pax Americana in the Asia-Pacific. The possibility of a Chinese regional order in Asia, and specifically in Southeast Asia, appears to worry the United States, which has long dominated the region without any real challenger, the South China Sea issue being the best illustration.

This chapter explains how the American approach towards the South China Sea is part of a bigger grand strategy in the Asia-Pacific. The first part of the chapter studies the logic and rationality behind the Obama administration’s grand strategy of leading from behind. The second part examines the famous “pivot” or “rebalancing” and examines the logic of transformational leadership that was behind it. Finally, the third part analyses how the Obama administration handled the South China Sea issue.

Leading from behind

It is stated that a state’s power is mobilized to comply with and fulfil its national interest, which is generally formulated in a grand strategy. Brands (2012), in his article “The Promise and Pitfalls of Grand Strategy”, defines grand strategy as “the theory, or logic, that binds a country’s highest interests to its daily interactions with the world” (p. 3). A state’s grand strategy thus represents a guideline establishing the ultimate objectives of foreign policy.

Under President Obama, the United States became aware of the “Lippmann Gap” that characterizes situations in which the engagements of a nation’s foreign policy exceeds its power (Lippmann 1943, pp. 7–8). Akin to what Paul Kennedy conceptualized in his work under the term “imperial overstretch”, this results in the exhaustion of resources and energy, tolling the bell that signals the end of the country’s domination (Kennedy 1987). As a consequence, the objectives of the Obama administration consisted in sharing risks, costs, and blood with allies and partners with all the hazards these entail. Most notably, a possible hazard occurs when more autonomous partners wish to further their own agendas, which do not always correspond to the agenda of the United States (Department of Defense 2014, p. 6). The financial crisis, which laid a severe blow to the economic pillar of American power, pressured Washington to focus on some pivotal states capable of serving its interests in different regions to hold back some potential challengers and contain regional as well as local threats.

In the last two decades, the United States has too often lost sight of the fundamental principle of any foreign policy, which is, as Richelieu noted, “the thing which must be sustained as well as the force sustaining it have to be geometrically proportional” (Kissinger 1994, p. 63). This fundamental principle is precisely what the Obama administration strived to realize in its foreign policy. The precarious economic situation, the presence of American forces on several theatres of operation (i.e. Afghanistan, Iraq, Somalia), the scepticism of the American population regarding imperialist or hegemonic proclivities, and so forth, have nurtured a more selective and managerial foreign policy. The American administration realized quickly that a going-it-alone approach and overextension means the end of American dominance in world affairs. Instead, because of the relative decline, the United States needed to replace its smaller capacity by reinforcing its alliances and partnerships to compensate for these losses. Furthermore, the US had to prioritize its national interests, emphasizing high politics instead of low politics. Thus, the motto of President Barack Obama appears to have been the following: only a policy further calibrated on a narrow definition of national interest can make the difference between what matters on a strategic level and what is peripheral.

In fact, the policy of the Obama administration has mainly been characterized by an affiliation to defensive realism and a stricto sensu interpretation of the national interest.¹ Defensive realism argues that the right way to survive, and thus defend your national interests in an anarchical structure, is to adopt policies that guarantee your security by defending a kind of balance of power and to not seek power maximization to assure dominance.² Accordingly, this argument led to a redefinition of American priorities on the international scene, accurately illustrating “the butter and gun dilemma” to which Washington was confronted. Without a strong economic pillar, there would not be an American leadership in the future. Thus, the objective was to ensure economic growth while disengaging from peripheral theatres of operation, hereby avoiding the endangerment of American national interest, while in parallel asking allies to step in. Indeed, due to its relative decline, the United States needed to share the burden, the risks, and the costs with its trusted followers more than in the past. As a result, the United States policy translated into the “leading from behind” doctrine and the concept of “strategic patience” (The White House 2015a).³

In practice, the Obama administration rejected liberal interventionism rooted in theories of the democratic peace and privileged instead selective engagement. Advocates of selective engagement “do start from the premise that US resources are scarce: it is simply impossible to muster sufficient power and will to keep domestic and international peace worldwide, or to preserve the United States as the undisputed leader in a unipolar world” (Posen and Ross 1996, p. 16). Consequently, selective engagement, in the words of James Baker, “recognize(s) that the United States has core interests in the world and must protect them. At the same time, it also acknowledge(s) the reality that (the American) power is limited”.⁴ Selective engagement “understand(s) and appreciate(s) the complexity of the real world–a world of hard choices and painful trade-offs”. Furthermore it “avoid(s) both the cynicism of ‘realism’ and the impracticality of ‘idealism’” (Baker 2016). This selective engagement translates in practice by establishing priorities, such as balance of power; peace among major powers; containment or discriminate interventions in regional conflicts, ethnic conflicts, or humanitarian missions; preservations of alliances; and promotion of a divided Eurasia (Posen and Ross 1996). As a result, President Obama did not want to get entangled in what he considered peripheral crises that would require boots on the ground at high cost and that would endanger the economic recovery (i.e. Syria, Ukraine, South China Sea). At the same time, he realized that, as the superpower, doing nothing was not an option. Consequently, if the core national interests were not endangered, the priority was to contain and/or manage the situation and count on allies and partners to fill the void.

In such policies characterized by selective engagement (or retrenchment), allies and partners, more particularly those that are located at the intersection of different spheres of influence, take a whole new dimension (Sweijs et al. 2014, p. 6). Therefore, if the United States wanted to keep its predominant position in the Asia-Pacific – and thus safeguard its capacity to defend its interests there – it had to focus on a certain number of pivotal states. The Americans needed to be able to lean on partners who had to be more proactive and avoid buck-passing or free-riding. By giving more autonomy to trusted followers, Washington engaged a social process “through which the leader changed the way followers envisioned themselves” (Collinson 2006, p. 180). Obama thereby tried to shift from a transactional form of American leadership towards one that was more transformational. The former is a “process of exchanges analogous to contractual relations in the economic field [and] depending on the participants’ good faith” (Goethals et al. 2004, p. 1558). This style of leadership relies on the duo of rewards and punishments; the leader sets goals without necessarily including the followers. It implies an effective control over means of threat or reward by the dominant power. The latter encompasses motivations and ideas of followers and induces a change in their reflection. This reflection repurposes their actions and becomes a source of inspiration. In theory, the leader increases everyone’s welfare and fulfils a common goal through mutual stimulation, underlining that “any organization is a triad consisting of leaders and followers joined in a common purpose” (Chaleff 2009, p. 13). Without this common goal, no leader–follower relation is possible. We may quote Lao Tzu in this regard: “The wise leader settles for good work and does not take all the credit for what happens. When the work is done, let them say with pride, we have done this together” (Hollander 2009, p. 12).

The distinction between transactional and transformational leadership is gradual and incremental rather than absolute. The greater the asymmetry of power between leader and followers, the more the leader will be able to impose itself via its capacities, hence the more transactional will be the leadership. On the contrary, if the gap continues to shrink – provided the leader wishes to stay at the top of pyramid – the dominant power must increasingly consider its followers’ needs and interests and should share parts of the leadership’s responsibilities with them. Thus, the Obama administration adapted its strategy by using determinants of power other than the traditional capacities and means. Having less of the latter, Washington compensated by emphasizing social power. Being less transactional and more transformational, the United States, to guarantee the survival of the liberal world order, involved a greater number of other states through the recognition of a new satisfying status by sharing the burdens of regional leadership (as analysed below) devoted to the rebalancing. Therefore, leadership, in that sense, was about providing enough incentives to protect the status quo, while being a follower meant enjoying the status quo without entertaining revisionist objectives. The system had to be established so that it was “much more advantageous for subordinates to pursue their individual goals and interests within, and according to the parameters set by the system than to challenge it” (Diefenbach 2013, p. 105).

This policy led by the Obama administration did not only allow the leader to distribute the costs of leadership among its allies, but it also put the allies at the forefront of the international scene by empowering them with part of the responsibility of the world order’s stability (empowerment), while giving them the means to achieve it (enablement). In brief, the foreign policy of President Obama has been characterized by measure, restraint, and openness towards allies and new partners. On the subject, a little over a century ago, President Theodore Roosevelt remarked that “Nine-tenths of wisdom is being wise in time”. The rebalancing is an excellent example of the Obama administration putting this approach into action.

Adapting traditional alliances to new realities and developing new partnerships

Facing the rise of China in the Asia-Pacific – and in particular in the South China Sea – who deployed its power akin to an octopus deploying its tentacles, the Obama administration heavily reinforced its strategic positions in Northeast Asia, Southeast Asia, and in the South Pacific, like in a game of chess, through its rebalancing policy.⁵ In the document Sustaining US Global Leadership: Priorities for 21st Century Defense of January 2012, Washi...