Of Course China, Like All Great Powers, Will Ignore an International Legal Verdict
by Graham Allison | July 11, 2016 | The Diplomat
This week the Permanent Court of Arbitration (PCA) will deliver its award in the Philippines’ case against China over maritime disputes in the South China Sea. In a bid to thwart Beijing’s attempt to turn the South China Sea into its own virtual lake, Manila contends that China’s claim to exclusive sovereignty over all the islands and shoals within the nine-dashed line – which encompasses 86 percent of the Sea – has no basis in international law. There is not much suspense about what the tribunal will decide: it will almost certainly side with the Philippines. The United States and its allies have already started criticizing China for signaling in advance that it will ignore the court’s ruling, which one Chinese official derided last week as “nothing more than a piece of paper.”
It may seem un-American to ask whether China should do as we say, or, by contrast, as we do. But suppose someone were bold enough to pose that question. The first thing they would discover is that no permanent member of the UN Security Council has ever complied with a ruling by the PCA on an issue involving the Law of the Sea. In fact, none of the five permanent members of the UN Security Council have ever accepted any international court’s ruling when (in their view) it infringed their sovereignty or national security interests. Thus, when China rejects the Court’s decision in this case, it will be doing just what the other great powers have repeatedly done for decades.
From the day the Philippines went to court, China has argued that the PCA has no legitimate jurisdiction on this issue since it concerns “sovereignty” – which the text of the Law of the Sea treaty explicitly prohibits tribunals from addressing. When the Court rejected China’s objection, Beijing refused to participate in its hearings and made it clear that it will ignore the PCA’s ruling. The United States and others have criticized Beijing for taking this stance. But again, if we ask how other permanent members of the Security Council have acted in similar circumstances, the answer will not be one we like.
When the Netherlands sued Russia after the latter’s navy boarded and detained the crew of a Dutch vessel in waters off of the Russian coast in 2013, Moscow asserted that the court had no jurisdiction in the matter and refused to participate in the hearings. It also ignored a tribunal’s order that the crew be released while the dispute was being resolved. After the PCA ruled that Russia had violated the Law of the Sea and ordered Moscow to pay the Netherlands compensation, Russia refused.
Anticipating the Court’s ruling in the case brought by the Philippines, UK Prime Minister David Cameron proclaimed: “We want to encourage China to be part of that rules-based world. We want to encourage everyone to abide by these adjudications.” Perhaps he had forgotten that just last year the PCA ruled that the UK had violated the Law of the Sea by unilaterally establishing a Marine Protected Area in the Chagos Islands. The British government disregarded the ruling, and the Marine Protected Area remains in place today.
The United States has never been sued under the Law of the Sea because – unlike China – Washington has not ratified the international agreement and is thus not bound by its rules. Expect Chinese commentators to emphasize this point in the mutual recriminations that will follow the Court’s announcement.
The closest analogue to the Philippines case involving the United States arose in the 1980s when Nicaragua sued Washington for mining its harbors. Like China, the United States argued that the International Court of Justice did not have the authority to hear Nicaragua’s case. When the court rejected that claim, the United States not only refused to participate in subsequent proceedings, but also denied the Court’s jurisdiction on any future case involving the United States, unless Washington explicitly made an exception and asked the Court to hear a case. If China followed that precedent, it could withdraw from the Law of the Sea Treaty altogether – joining the United States as one of the world’s only nations not party to the agreement. Read more…