Officiel U.S. Navy Page

In the wake of intensifying military excursions and exacerbating tensions across the East Asian Pacific, China continues to press its claim on a chain of cays near the Philippines, and in spite of a tribunal declaring its actions a breach of international law, Beijing hasn’t even flinched. In 2013, the Permanent Court of Arbitration (PCA) in The Hague convened to hear representatives of the Philippines decry China’s encroachment into the Spratly Islands, over which Taiwan and Vietnam also hold claims. This past July, the PCA published three years of deliberation into a 497-page ruling, decidedly in the Philippines’s favour. The tribunal concluded that China has disregarded the United Nations (UN) Convention on the Law of the Sea (signed by Beijing and Manila in 1982), which gave the Philippines exclusive economic control of the islands.

Apart from largely disproven oil reserves, the uninhabited reefs and guano-covered rocks offer little in natural resources to the world’s largest exporter; Beijing’s interests are more geostrategic. China stands to gain from securing the islands to develop its control of regional commerce, and enabling its power projection in other territorial disputes. Around half of the world’s annual fleet tonnage passes through the straits north and west of the Spratlys, and a considerable portion of the tribunal’s deliberations dealt with China’s military expansion in the islands. China has sought to strengthen its claim to the cays by dredging sand into man-made rocks near Manila. Chinese airstrips dot the islets and their fleets cruise the contested waters. Legal experts weren’t surprised by the result, and China has maintained that The Hague lacks the appropriate jurisdiction to arbitrate the dispute, both during and after the ruling.

Officiel U.S. Navy Page
Image courtesy of Official U.S. Navy Page, © 2016, some rights reserved.

By casting aside the PCA’s decision, Beijing shows a disregard for the legitimacy of international law in the Pacific. One could criticise the country for giving ‘short shrift to its global responsibilities’ by consistently breaking with the UN consensus, but it’s not the only power to do so. When faced with threats to national security, ‘none of the five permanent members of the UN Security Council have ever accepted any international court’s ruling.’ Beijing’s blatant disregard of the ruling, following the example of its powerful peers, could be seen as demonstrating the futility of international law as a means of resolving conflicts, as the degree of respect for international courts determines the legitimacy of their rulings. If the major players of the world can’t buy into the same medium for dialogue, they will find it harder to reach political compromise as well as to tackle climate change and other collective problems. It’s been easy to sanction North Korea for abusing the human rights of its citizens, but it’s far more challenging to constrain the foreign policy of a country of nearly one-and-a-half billion.

Yet it seems unfair to criticise international courts for failing to act out of their purview. The international order is tasked with interpreting court rulings as it sees fit, setting normative stances and enforcing agreements appropriately. The PCA is an institution for facilitating fairness. It aims to resolve the political clashes traditional diplomacy cannot. Through dispassionate deliberation, The Hague intends to make it easier to identify those who circumvent established precedent. The PCA’s verdict has a profound effect on the politics of the South China Sea, even if China outright ignores it.

Rather than attempting to dismantle a complex apparatus well respected by the liberal international order, Beijing may consider alternative means of resolving conflicts. In an official white paper sold in bookstores throughout the country, Beijing describes the tribunal’s intervention as inappropriate bureaucratic theatre. Referring to the arbitration as ‘a political farce presented as a legal issue,’ the paper argues that The Hague lacks the jurisprudence to take on cases in the Pacific because the issues themselves predate the court’s existence, even if the Philippines directly called upon it to intervene. From Beijing’s perspective, how can the tribunal, which it criticises as being made up of outsiders and designed by adversaries who cannot understand cultural and historical disputes in the region, give either state a just ruling?

By showing that The Hague is unfairly intervening in its affairs, the country can assume leadership of a political-judicial system not controlled by the West, making way for other means by which its disputes can be settled. China’s foreign ministry would prefer to reach agreements in bilateral negotiation with its peers, rather than drawing in third-parties that would undermine its bargaining power. Chinese president Xi Jinping can settle territorial disputes with Rodrigo Duterte, his Filipino counterpart, without involving third party tribunals. By establishing joint-venture projects and multilateral investment deals, China can use its economic power to alleviate the political pressures against it. Presenting alternatives to the adjudication by international tribunals gives Xi Jinping greater capacity to set the Pacific’s political agenda himself. While the Philippines has won in The Hague, Beijing’s unfaltering stance may lead Manila to consider alternative channels of negotiation that avoid the build-up of weaponry near its shores. That Duterte has threatened to withdraw from the UN and form a new organisation with China suggests this is not a far-fetched possibility.

The US-backed coalition of countries near China will take advantage of the ordeal to legitimise their stances on other disputes. Since courts try to maintain consistency in their rulings, Beijing’s claim to the South China Sea ‘is equally invalid to…the rest of the international community.’ The governments of Japan and Vietnam can more confidently press their claims over the Senkaku and Paracel Islands, justified in increased law fare. Japan and the Philippines continue to engage in joint military exercises, demonstrating integrated opposition to Chinese expansionism. By contrast, China becomes more isolated, its status as a rule-breaker more apparent. In the words of US President Barack Obama, being bigger than your neighbours ‘is not a reason for you to go around and flex your muscles.’

Before the UN Convention on the Law of the Sea was ratified, the semi-formal territorial claim coastal states held was three miles from their shores— the furthest reach of a fired cannonball. This traditional standard intended to stop neutral powers from getting caught in the middle of on-going conflicts, but it’s been rendered obsolete by formalised measurements and geospatial technology, and it’s far easier for the nations of the interconnected world order to be involved in every conflict around them. It’s much harder for the world’s smaller countries to circumvent the court orders great powers arbitrarily follow. If China had won the case and jeopardised the territorial integrity of the Philippines, it would have been far harder for the latter to assertively reject the ruling. For the Philippines and similarly sized countries, international courts are the means to voice concerns, seek justice, and escape neo-colonial hegemony.

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