International law in the Obama administration's pivot to Asia: the China seas disputes, the Trans-Pacific Partnership, rivalry with the PRC, and status quo legal norms in U.S. foreign policy.

Author:deLisle, Jacques
Position::Barack Obama, People's Republic of China - New Beginnings, Resets & Pivots: The International Legal Practice of the Obama Administration
 
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The Obama administration's "pivot" or "rebalance" to Asia has shaped the Obama administration's impact on international law. The pivot or rebalance has been primarily about regional security in East Asia (principally, the challenges of coping with a rising and more assertive China- -particularly in the context of disputes over the South China Sea--and resulting concerns among regional states), and secondarily about U.S. economic relations with the region (including, as a centerpiece, the Trans-Pacific Partnership). In both areas, the Obama administration has made international law more significant as an element of U.S. foreign policy and has sought to present the U.S. as defending and promoting status quo international legal norms, largely against challenges posed by China. This approach has been somewhat more plausible on security / South China Sea issues than on economic / TPP issues. At the end of the Obama administration, significant uncertainty looms about the prospects for this aspect of the Obama-era approach international law and the international and domestic conditions that helped to produce it.

Contents I. The China Seas Disputes--Territorial Sovereignty, Maritime Jurisdiction, and Regional Security II. The Trans-Pacific Partnership--Integration and Rivalry in the East Asian and Global Economy III. After Obama and under a 'New Normal'? **********

The Obama administration framed its "pivot" or "rebalance" Asia primarily in terms of geopolitics and foreign policy. Yet, policy also has had significant international legal elements and implications. The promise to rebalance the U.S.'s efforts and attention toward Asia--implicitly, toward East Asia--may have fallen short of expectations, (1) but the pivot did push East Asia-related questions much more toward the center of the U.S.'s practice of, and approach to, international law. The Obama administration's response to disputes over territorial sovereignty and maritime rights in the South China Sea (and the East China Sea), and its quest for the TransPacific Partnership as a "twenty-first century" trade agreement (and a pact that reaches well beyond trade in regulating an increasingly global economy) are primary legal aspects of the pivot or rebalance.

The U.S.'s "pivot" or "rebalance" toward East Asia (including Southeast Asia) was also a shift away from a focus on another geographic area: the Middle East (or West Asia, including Iraq) and South Asia (more specifically, South-Central or Southwest Asia, including Afghanistan and Pakistan). As is often the case, these different parts of the world have presented different political and, in turn, legal challenges for the United States. Thus, the pivot also meant a shift in the subject matter focus of the U.S.'s practice and agenda in international law. During the George W. Bush administration, the defining issues in international law for the United States centered on the fall-out of 9/11 and the wars in Iraq and Afghanistan: the rights and obligations of states in combatting terrorist organizations, the use of military force--with and without UN Security Council authorization--to intervene in states that were found to support terrorism or harbor terrorists, the rules governing treatment of combatants who were not members of the conventional armed forces of states, targeted killings of individuals identified as terrorists, the resort to "enhanced interrogation" or torture, and the imposition of limits on civil liberties--some of which overlap international human rights--under the proffered justification of preventing terrorist acts and disrupting terrorist organizations. (2)

To be sure, many of these issues persisted into the Obama presidency, and the Bush administration's interactions with international law were not confined to military intervention- and terrorism-related issues. Although the contrast between the two administrations, therefore, should not be overdrawn, the pivot-related shift in the principal geographic and doctrinal concerns for the U.S. in international law is striking. The two most high-profile legal dimensions of the turn to (East) Asia under Obama have had significant similarities and served interdependent policy goals. The Trans-Pacific Partnership (TPP) constitutes much of the economic leg of the mostly security-focused pivot. (3) The strategic pivot-- including especially the elements focused on the South and East China Seas--undertakes to provide the security underpinnings for open trade and economic ties in the region and beyond.

In both contexts--the TPP and related issues of international economic law, and the China Seas disputes and associated issues of maritime zones, sovereignty, and security-related international law-- the U.S. cast itself as the defender of status quo international legal norms in the face of Chinese positions that have pressed or may portend a revisionist agenda. The U.S.'s stances on both sets of legal issues have been entwined with efforts to assure and engage other regional states and to advance U.S. interests and aims. But the two issue areas also differed in significant ways, including the clarity and robustness of the legal status quo that the U.S. has purported to defend, and the responses to U.S. moves by regional states living in the shadow of frictions, and possibly sharpening rivalry, between the U.S. and the People's Republic of China (PRC).

  1. THE CHINA SEAS DISPUTES--TERRITORIAL SOVEREIGNTY, MARITIME JURISDICTION, AND REGIONAL SECURITY

    The Obama administration presented the "pivot"--later dubbed the "rebalance" and sometimes described as a "return"--to Asia primarily in terms of redefining U.S. priorities and reallocating U.S. resources in ways that were more consistent with the U.S.'s national interests, which were especially great in then-recently neglected but strategically and economically vital East Asia. (4) Underlying Washington's shift, and its welcome reception in much of the region, was China's rapid rise in power and China's actions in pursuit of an agenda that appeared, at best, uncertain and, at worst, assertive and even aggressive. (5) In terms of international security and perhaps more generally, the biggest sources of concern about Beijing's aims and behavior were the disputes over territory and related rights in the East China Sea (with Japan over the Senkaku / Diaoyu islands and adjacent ocean zones) and in the South China Sea (with Vietnam, the Philippines, Malaysia, and others over various subsets of four groups of islands and rocks, and rights in appurtenant maritime areas). (6)

    The disputes between China and its neighbors were long-standing and they produced significant discord which has led to sporadic violent incidents since the 1970s. A relatively long period of relative calm came to an end near the beginning of Obama's presidency, and recurrent tensions and occasional crises have roiled regional relations since then. (7) With China adopting stronger rhetoric, making bolder legal claims, and moving to exercise greater physical control over the contested areas, regional states--ranging from enduringly close formal U.S. allies (such as Japan) to states that had not previously pursued security ties with the United States (such as Vietnam), and others in between (such as the Philippines and Singapore)--pursued or welcomed support from Washington in the face of perceived Chinese threats and challenges. (8)

    Although the pivot was articulated largely in terms of geostrategic considerations and somewhat in terms of values, it also was cast in legal terms and conjoined with legal arguments. Those legal arguments presented the United States as a champion of established norms and valuable international public goods--including regional stability and, in turn, prosperity. (9) Often implicitly, at times explicitly, and sometimes in response to China's stated opposition to the U.S.'s role, the Obama administration depicted China as the party that was violating or undermining existing international legal norms. (10) U.S. stances on international legal issues relevant to the China Seas disputes are part of this pattern.

    The U.S. has long insisted that it takes no official position on the question of who has sovereignty over the landforms--and, thus, who can claim the limited but valuable rights over adjacent waters and continental shelves that a state with territorial sovereignty may enjoy under the international law of the sea. (11) In the South China Sea context, Washington coupled this agnosticism on sovereignty with sharp criticism of what the U.S. saw as crisis-risking unilateral moves--predominantly by China--to disrupt the status quo, including actual control. (12) In the East China Sea setting, the U.S.'s position was more complex and assertive. Although declining to take sides in the sovereignty dispute between China and Japan, the U.S. affirmed and reaffirmed--including in statements by President Obama and Secretary of State Hillary Clinton--its interpretation of the U.S.-Japan security treaty as extending the U.S.'s commitments to defend the existing arrangement of Japanese administrative control over the Senkaku / Diaoyu. (13) This posture added another international legal dimension, inescapably casting the U.S.'s backing for Japan as an interpretation of an internationally lawful mutual security treaty.

    The U.S. standpoint on sovereignty provided a basis for rejecting Beijing's assertions that the U.S. should not attempt to "internationalize" the "local" disputes in China's near seas, or "interfere" in a place where the U.S. had no territorial claims. (14) It also undergirded U.S. moves to convey support for Japan when Chinese vessels and aircraft challenged Japan's hitherto exclusive control over areas near the islands--ostensibly in response to the Japanese government's acquisition (derided in China as "nationalization") of land in the islands owned by private Japanese citizens. When China acted, the U.S...

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