By Mel Gurtov
As had been widely expected, the Permanent Court of Arbitration under the UN Convention on the Law of the Sea (UNCLOS) ruled on July 12 in favor of the Philippines’ suit to declare Chinese territorial claims in the South China Sea (SCS) illegal.* On every particular, the court found that China’s claims—defined by the so-called “nine-dash line”— to an expansive maritime zone and its undersea resources are illegal, and therefore that its land reclamation and construction projects in the islands encroach on the Philippines’ exclusive economic zone. Though the ruling did not extend to the issue of sovereignty over the SCS islands, it clarified the boundary dispute. The ruling also found China guilty of harming the marine environment by building artificial islands, of illegally interfering with Filipinos’ fishing and oil exploration, and “aggravating” the dispute with the Philippines by its construction activities. (Text of the ruling is at https://www.scribd.com/document/318075282/Permanent-Court-of-Arbitration-PCA-on-the-West-Philippine-Sea-Arbitration#download).
China had determined its response many months ago. The foreign ministry declared the arbitration court’s decision “null and void and without binding force.” The statement repeated China’s sovereignty claims over the SCS islands. It asserted that China’s stance is consistent with international law, a view that hardly squares with its denial of the arbitration court’s jurisdiction, much less its decision. China is committed to direct negotiations with the interested parties and to peaceful settlement of disputes, the statement says; but “regarding territorial issues and maritime delimitation disputes, China does not accept any means of third party dispute settlement or any solution imposed on China” (Xinhua, July 12, 2016, “Full Statement.”)
In all, it was a bad day in court for the People’s Republic. Though it promises not to abide by the ruling, meaning China will continue to militarize the disputed islands and defend its “core interests” there—its navy held its first live-fire exercises in the SCS the day before the court’s decision—the spotlight is on China’s claim to be a “responsible great power.” President Xi Jinping had indicated in 2014 that China needed to have “its own great-power foreign policy with special characteristics,” which he called “six persistents” (liuge jianchi). These principles supposedly would create a “new type of international relations,” and included ideas such as “cooperation and win-win,” a major voice for developing countries, and defense of international justice. But the six persistents also included “never abandoning our legitimate rights and interests” (zhengdang quanyi), which all too often is pretext for acting in ways directly opposed to international responsibility. (See: http://world.people.com.cn/n/2014/1201/c1002-26128130.html.)
China’s leaders surely expected that signing and ratifying the UNCLOS would be advantageous to the country. It would demonstrate China’s commitment to international agreements, show China’s respect for the maritime rights of others (especially its Southeast Asia neighbors) as well as legitimize its own rights, and facilitate undersea exploration for resources. But agreements don’t always turn out as expected. Now that the law has turned against it, the Chinese suddenly seek to disqualify the UNCLOS court and reinterpret the convention’s intent. Not many governments are likely to support such backsliding.
The US, though having always supported the Philippines’ position, has nothing to cheer about here. First, the US has neither signed nor ratified the UNCLOS, and thus is in a weak position to argue on its behalf or appeal to international law and a “rules-based system’ when governments violate either (such as Russia’s seizure of Crimea). Second, like China, the US has always taken a dim view of international law when “national interests” are at stake. Whether with regard to the International Court of Justice or any other international court, the US has never accepted the idea of compulsory jurisdiction, and in fact has often behaved as though it is exempt from laws and rules. Thus, also like China, US responsibility as a great power does not consistently embrace respect for and adherence to international treaties and conventions, international legal bodies (such as the International Criminal Court), or international legal norms (such as those regarding nonintervention, genocide, and torture). (See: www.economist.com/blogs/democracyinamerica/2014/05/america-and-international-law.) Both the US and China, in a word, talk the talk but don’t walk the walk—unless law serves its policy.
And that is the real lesson here—the irresponsibility of great powers, their self-serving approach to international law, and the limited capacity of legal institutions to constrain their behavior. Perhaps in the SCS case China and the Philippines, now under a new president, will find their way back to the negotiating table and work out a deal that skirts the always-difficult sovereignty issue. (See my last post on the subject: https://mgurtov.wordpress.com/2016/06/11/post-119-too-close-for-comfort-the-dangerous-us-china-maritime-dispute/.) That would be fine; but it would not address the fundamental problem of how law-abiding behavior can be promoted and enforced in an often anarchic world.
*The court, whose work on the SCS case began in 2013, is composed of justices from Ghana, Poland, Netherlands, France, and Germany.