China’s interests at stake in the South China Sea ruling

 by John Lee, Merics /  2 August 2016 / East Asia Forum

When considering the implications of the South China Sea arbitral award, it is crucial to consider the political context in which China views the decision. The Tribunal stated that the award’s purpose is to facilitate negotiation between the disputants by clarifying their respective rights and obligations, averring that China’s actions have stemmed from a misunderstanding of its rights under the United Nations Convention on the Law of the Sea (UNCLOS).

Unfortunately, this likely misreads how China’s leaders view the matter. By all indications, they see at stake fundamental issues of political order, which trump the legal system within which the tribunal operates.

Upholding the historic basis of China’s rights in the South China Sea is a priority for the Chinese Communist Party because of their place in the ‘century of humiliation’ narrative, which is now a key legitimising discourse for Party rule. It is not a coincidence that the nine-dash-line map was produced by the same (pre-Communist) government that negotiated the end of China’s ‘unequal treaties’. It symbolised a reassertion of Chinese sovereignty against an international system that had been forcibly imposed on East Asia by the West. It also reflected a unilateral concept of historical Chinese authority in the region, with no attempt made to reconcile Western-derived rules of sovereign acquisition with Imperial China’s relationship to overseas territories.

A key aspect of the ‘century of humiliation’ narrative is that China historically exercised legitimate authority over far-flung lands, which was compromised by foreign aggression. This understanding of East Asian history has been so widely internalised within China that the verb commonly used by netizens to describe infringements on China’s rights in the South China Sea (瓜分) is the same one used in history textbooks to describe the nation’s 19th century ‘carving up’ by foreigners.

Surveys indicate that many Chinese citizens genuinely believe in China’s historic rights to the South China Sea and condemn the government for not enforcing them. And as Julian Ku has noted, the near unanimous support of Chinese legal scholars for the official stance seems to reflect something more than political expedience.

The Tribunal’s finding that there is no historical evidence of exclusive sovereign control by China over the South China Sea directly challenges this narrative. Faced with incongruence between the standards of modern international law and pre-Westphalian Asian political arrangements, China’s only option is to assert that the former must accommodate the latter. While these arguments are not new in Chinese non-government commentary, the arbitration seems to have pushed Chinese officialdom towards embracing them explicitly. A 3 July article published in the Party journal Qiushi by China’s vice-minister for foreign affairs castigates the judges’ lack of schooling in the ‘international legal order of ancient East Asia’.

Likewise, the Tribunal’s ruling that in any case ‘historic rights’ are extinguished where incompatible with UNCLOS has solved this issue in a legal sense, but politically it has made it harder for Beijing to trim its claims while ‘saving face’. While the treatment of ‘historic rights’ in China’s official statements responding to the award can be interpreted as doing just this, it can also be read as elevating them to the status of a legal category, in defiance of the Tribunal. Read more…

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