International Law Is Under Siege in the South China Sea
China’s seizure of a U.S. Navy unmanned underwater vehicle (UUV) in the South China Sea last month garnered widespread attention. The drone was an oceanographic research instrument, available for commercial purchase off the shelf and without any value for capture. Although Washington and Beijing seemed to resolve the issue within a few days, other commentators have noted that the incident fits into a pattern of Chinese behavior surrounding American transitions of power. Both the 2001 EP-3 collision and the 2009 harassment of USNS Impeccable occurred in the weeks immediately following American presidential inaugurations. Both actions seemed calculated to challenge the new presidents in an effort to gauge their reactions and convey a message of Chinese strength and determination early in the new leaders’ terms. This time, Beijing did not wait until the new president took office; the UUV seizure occurred more than a month before Donald Trump’s inauguration.
However, the incident also fits into another pattern: a creeping disregard among major military powers for international law. The tendency is not unique to China; Russia and the United States play an important part. While the United States first laid the legal framework, China and Russia have picked up the mantle in the last few years and taken the lead. Trump’s election may reinforce the three countries’ directions, signaling difficult years ahead for international legal forums.
The United States was the first to reject the jurisdiction of international legal tribunals in recent decades. In 1986, the U.S. refused to participate in legal proceedings over its support for the Contra rebellion against the ruling Sandinista government in Nicaragua. Although the International Court of Justice held in Nicaragua v. United States that the U.S. had violated Nicaragua’s sovereignty under customary international law, an American veto in the UN Security Council prevented Nicaragua from enforcing the judgment in any meaningful way. The case helped to shape American political skepticism toward international courts; the United States takes no part in the International Court of Justice or the International Criminal Court. It even refused to ratify the 1982 United Nations Convention on the Law of the Sea (UNCLOS), the comprehensive maritime law agreement that it spearheaded through the negotiation process. The trend, however, seemed to be a quirk of American exceptionalism. Over the next 30 years, the use of international tribunals continued to grow among other countries, particularly in the maritime arena.
UNCLOS included a binding dispute resolution system to encourage members to solve their issues without using intimidation or force against their neighbors. The system, which entered into force in the mid-1990s and offers a range of forums where parties may bring grievances against one another, has been moderately successful during its short history. Its tribunals have developed legal standards for flag states to retrieve impounded fishing and commercial vessels and has resolved a number of maritime border disputes. Today, eight cases remain pending in three separate forums, signaling that the process is attractive to a number of countries and provides a useful way to solve problems peacefully. However, recent events have exposed a major flaw in the system: great powers have discovered that they can ignore it with impunity.
Russia revived the American approach to international courts in 2013, when an obscure dispute arose over the arrest of a Greenpeace ship protesting a Russian oil platform in the Barents Sea. The ship, M/V Arctic Sunrise, was flagged in the Netherlands. Following the arrest, the government of the Netherlands filed a fairly routine request for Russia to release the vessel and crew in exchange for a security bond under Article 292 of UNCLOS. When Russia refused, the Netherlands resorted to the dispute resolution mechanisms under the Convention. It filed a series of petitions with both the International Tribunal for the Law of the Sea (ITLOS) and the Permanent Court of Arbitration (PCA), alleging that the Russians had violated the Convention and demanding both the ship’s return and money damages. The Russians disputed the tribunals’ jurisdiction, arguing that the matter was not covered under the Convention. Both courts disagreed, ruling that UNCLOS did apply and requesting that Russia appear in court. Instead, the Russians balked; they simply refused to show up. When the tribunals ruled against them in absentia, Russia refused to acknowledge the violation or pay damages. Although Moscow granted the crew immunity and eventually released the ship as a domestic matter, it never acknowledged the binding nature of the courts’ ruling. Read more…