FacebookTwitterGoogle+RedditEmail

China’s Bad Day in Court

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.

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.”

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.

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). 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. 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.

More articles by:

Mel Gurtov is Professor Emeritus of Political Science at Portland State University, Editor-in-Chief of Asian Perspective, an international affairs quarterly and blogs at In the Human Interest.

April 26, 2018
Patrick Cockburn
As Trump Berates Iran, His Options are Limited
Daniel Warner
From May 1968 to May 2018: Politics and Student Strikes
Simone Chun – Kevin Martin
Diplomacy in Korea and the Hope It Inspires
George Wuerthner
The Attack on Wilderness From Environmentalists
CJ Hopkins
The League of Assad-Loving Conspiracy Theorists
Richard Schuberth
“MeToo” and the Liberation of Sex
Barbara Nimri Aziz
Sacred Assemblies in Baghdad
Dean Baker
Exonerating Bad Economic Policy for Trump’s Win
Vern Loomis
The 17 Gun Salute
Gary Leupp
What It Means When the U.S. President Conspicuously and Publicly Removes a Speck of Dandruff from the French President’s Lapel
Robby Sherwin
The Hat
April 25, 2018
Stanley L. Cohen
Selective Outrage
Dan Kovalik
The Empire Turns Its Sights on Nicaragua – Again!
Joseph Essertier
The Abductees of Japan and Korea
Ramzy Baroud
The Ghost of Herut: Einstein on Israel, 70 Years Ago
W. T. Whitney
Imprisoned FARC Leader Faces Extradition: Still No Peace in Colombia
Manuel E. Yepe
Washington’s Attack on Syria Was a Mockery of the World
John White
My Silent Pain for Toronto and the World
Dean Baker
Bad Projections: the Federal Reserve, the IMF and Unemployment
David Schultz
Why Donald Trump Should Not be Allowed to Pardon Michael Cohen, His Friends, or Family Members
Mel Gurtov
Will Abe Shinzo “Make Japan Great Again”?
Binoy Kampmark
Enoch Powell: Blood Speeches and Anniversaries
Frank Scott
Weapons and Walls
April 24, 2018
Carl Boggs
Russia and the War Party
William A. Cohn
Carnage Unleashed: the Pentagon and the AUMF
Nathan Kalman-Lamb
The Racist Culture of Canadian Hockey
María Julia Bertomeu
On Angers, Disgusts and Nauseas
Nick Pemberton
How To Buy A Seat In Congress 101
Ron Jacobs
Resisting the Military-Now More Than Ever
Paul Bentley
A Velvet Revolution Turns Bloody? Ten Dead in Toronto
Sonali Kolhatkar
The Left, Syria and Fake News
Manuel E. Yepe
The Confirmation of Democracy in Cuba
Peter Montgomery
Christian Nationalism: Good for Politicians, Bad for America and the World
Ted Rall
Bad Drones
Jill Richardson
The Latest Attack on Food Stamps
Andrew Stewart
What Kind of Unionism is This?
Ellen Brown
Fox in the Hen House: Why Interest Rates Are Rising
April 23, 2018
Patrick Cockburn
In Middle East Wars It Pays to be Skeptical
Thomas Knapp
Just When You Thought “Russiagate” Couldn’t Get Any Sillier …
Gregory Barrett
The Moral Mask
Robert Hunziker
Chemical Madness!
David Swanson
Senator Tim Kaine’s Brief Run-In With the Law
Dave Lindorff
Starbucks Has a Racism Problem
Uri Avnery
The Great Day
Nyla Ali Khan
Girls Reduced to Being Repositories of Communal and Religious Identities in Kashmir
FacebookTwitterGoogle+RedditEmail