Civilizational sensibility vs. the rule of law

June 23, 2014
Vietnamese protesters hold banners during a protest rally against China outside the Chinese Consulate in Ho Chi Minh City, Vietnam, Saturday, May 10, 2014. (AP Photo)

Of late China has been increasingly assertive in the South China Sea. Its most dramatic (and, to the neighbours, most shocking) recent move was the unprecedented May 2 deployment of its largest deep-sea oil-drilling rig, the Haiyang Shiyou 981, into disputed waters west of the also-disputed Paracel Islands, prompting anti-Chinese riots in Vietnam and dramatic clashes at sea. Also unprecedented is China’s effort to build artificial islands on disputed reefs it controls. Elsewhere, Chinese ships have been playing games of cat-and-mouse and chicken with Philippine ships, tightening Beijing’s grip on reefs and shoals that are many hundreds of times closer to the Philippines than they are to China.

All of this activity is in defence of China’s maritime and territorial claims, which are, to say the least, expansive, overlapping as they do with those of six others (Brunei, Indonesia, Malaysia and Taiwan, Province of China, in addition to the Philippines and Vietnam). China’s claims are delimited by the infamous “nine-dash line,” which derives from a 1947 Nationalist Chinese map.

There are, of course, important tangible stakes involved. An astonishing proportion of global shipping passes through the South China Sea. Millions of people depend upon its fish for food or income. It is home to potentially significant hydrocarbon resources.

But the intangible stakes are arguably much larger. In the South China Sea we are witnessing the unfolding of a profound struggle over the basis of world order.

On one side of the struggle is China, championing civilizational entitlement. As Zheng Zhihua recently put it in a revealing piece in the China Daily, China is “one of the world's oldest civilizations,” “the South China Sea is part of the traditional Asian order,” and “it would be inappropriate to comprehend the nine-dash line by relying solely on the Westphalian nation-state system.” On this view, (China’s version of) the deep history of China’s control over the disputed islands and waters must be taken into account when interpreting rights and entitlements today. For much of that deep history—during the Ming and Qing dynasties—China enjoyed a rather singular status: “the Middle Kingdom” was the centre of the Asian order, both geographically and in terms of status. Other political communities were vassals, tributaries, or, if neither of the above, at least expected to pay homage.

On the other side of the struggle is just about everyone else, championing the rule of law—specifically, the United Nations Convention on the Law of the Sea (UNCLOS) and, where UNCLOS is silent or unclear, customary international law, which reflects the settled practices of precisely those Westphalian states (mainly European, as it happens) whose right to define the terms of world order China is contesting. To some extent China’s new willingness to contest it reflects its new capacity to do so. But no doubt two centuries of humiliation at the hands of Western or Westernized powers adds emotional fuel to the fire.

Now, there are wrinkles and ironies here. China, for example, has ratified UNCLOS, while the United States—recently among the most vociferous champions of settling disputes in the South China Sea by legal means—has not. Of the two, the United States does by far the better job of acting in accordance with both the spirit and the letter of UNCLOS. Also ironic is the fact that China is among the most vociferous defenders of Westphalianism when it suits its purpose. Middle-Kingdom China’s borders, for example, were ill-defined and patterns of political authority were fluid and ambiguous on the margins. Modern China, however, has no peer when it comes to rigidly defending its sovereign territoriality. China is not, of course, the only powerful country given to hypocrisy and inconsistency. Russia recently felt no compunction illegally wresting Crimea from Ukraine, and the United States is globally infamous for finding unconvincing finesses when the rule of law gets in its way, as those suffering sectarian violence in Iraq know only too well today.

But irony and inconsistency aside, there is an important and disturbing difference between a civilizational and a legal approach to world order. Notwithstanding the fact that “civilization” is an untenable concept analytically, it is political and rhetorical heroin, and those who think in terms of it are, when feeling their oats, both insufferable and dangerous. This is because they approach world order as a problem of deference, while those who embrace the rule of law see it as a problem of governance. A world of deference can only be stable and peaceful when all agree on the order of precedence. That was relatively common in distant historical times (Babylon, Sumer, Egypt, Persia, Greece, Rome, Mongolia, and early Hapsburg Europe all come to mind), but it is out of the question in a modern globalized world that has largely internalized the principle of the sovereign equality of all states. No one is willing to be dominated anymore.

China may yet tone down its civilizational discourse. I have spoken with people in positions of influence in Beijing and in universities and think tanks elsewhere in China who understand that it is rattling nerves, generating balancing behaviour, and working against China’s efforts to build a made-in-Asia security architecture. They were as distressed as anyone at the deployment of the Haiyang Shiyou 981. But they are clearly not winning any internal policy debates at the moment.

Beijing would do well to reflect on the price paid by other powerful countries over the past few hundred years who have unsuccessfully demanded deference, proclaimed exceptionalism, adopted a haughty demeanour, and displayed cynical disdain for the rule of law. As Confucius said: Study the past, if you would divine the future.

Next: Benoit Hardy-Chartrand on Japan-South Korea relations and the politics of apologies.

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