Is China cherry-picking its support for international law? Alison Pert examines the detail of the umpire’s decision on the South China Sea.
On 12 July the Philippines achieved a comprehensive win against China in international arbitration proceedings in The Hague. The five-member tribunal, established under the UN Convention on the Law of the Sea (UNCLOS), in effect ruled that China’s island-building activities in a large area of the South China Sea are unlawful. China has emphatically rejected the decision, and from the outset refused to take any part in the proceedings or to recognise the legitimacy of the tribunal. Does this make China an international outlier, refusing to play by the rules of the game, or is it really a fine upstanding, but deeply wronged, international citizen? To answer this question, and to understand China’s position, some brief reference to the main findings of the tribunal is necessary.
The Philippines and China are both parties to UNCLOS, which sets out in detail the maritime rights and duties of states, including the right of a coastal state to a territorial sea of 12 nautical miles (nm), an exclusive economic zone (EEZ) of 200nm, and a continental shelf of at least 200nm. By joining UNCLOS, the parties had agreed to arbitration as one of the compulsory means of settling disputes under the Convention, but the tribunal had no power to decide maritime boundaries or matters of sovereignty over territory.
China’s main objection was that the Philippines’ case is all about exactly that – which country has sovereignty over the reefs and islands of the South China Sea. It, therefore, argued that the tribunal had no jurisdiction, and that its decision is consequently a nullity, with no effect in international law.
The Philippines was aware of the limits of the tribunal’s jurisdiction, and framed its claims to avoid any need to decide on maritime boundaries or disputes over sovereignty. Broadly, it first argued that the maritime entitlements of parties to UNCLOS are determined exclusively by that Convention, such that China’s vague claims of “historic rights” to everything within its “nine-dash line” have no legal basis because they are not provided for in the Convention. Secondly, it asked the tribunal to rule on whether various reefs and other features were islands, rocks or low-tide elevations as defined in the Convention. Thirdly, it argued that China’s activities in the South China Sea had, among other effects, caused environmental harm and violated the Philippines’ EEZ rights.
The tribunal unanimously upheld all of the Philippines’ arguments. Most importantly, it agreed that China could only claim the maritime zones set out in UNCLOS, so its exorbitant “nine-dash line” claims were invalid.
China would instead have to claim sovereignty over each maritime feature in the South China Sea. That is, of course, possible, but the tribunal went on to rule that most of those features are only low-tide elevations – exposed only at low tide – and in international law are not capable of appropriation by any state. Of the remaining features it found that at most, there were a few that could generate a territorial sea, but no EEZ or continental shelf. So even if China could establish sovereignty over these features, it would be limited to control of 12nm around each feature.
In its decision, the tribunal had no need to – and did not – consider issues of maritime boundary delimitation or title to territory. China’s rejection of the tribunal’s decision, indeed its very existence, is thus not justified in international law.
China frequently proclaims its support for international law, most recently in a joint declaration with Russia last month. China stresses the need for states to resolve their disputes peacefully, but insists that in the South China Sea this should be done through direct bilateral negotiations – which of course would likely take years, may not resolve the dispute, and would do nothing to halt China’s island-building activities in the meantime.
China is not the first state to reject the finding of an international legal body: the United States rejected the 1984 and 1986 judgments of the International Court of Justice in the case brought by Nicaragua arising out of the US’ support for the contras, to name but one example.
Two (or even several) wrongs, however, do not make a right. In virtually every court case or arbitration in the world, whether domestic or international, there will be a disappointed loser, many of whom might think that the umpire got it wrong. International lawyers scrutinising the South China Sea award might quibble with some aspects of it, but it is extremely hard to argue that the tribunal had no jurisdiction or that the award is not as fully binding on China as any other international arbitral award.
If China maintains its island-building activities and its exorbitant claims in the South China Sea, it will be seen as applying the double standards of which it regularly accuses the US and other Western states. It risks being accused of cherry-picking its support for international law: fulsome in the abstract, but distinctly cool when accused of violating it.
China may take comfort from ASEAN’s deafening silence on the issue this week, but ultimately it has done itself no favours in refusing to explain the legal basis for its South China Sea claims and rejecting the decision of the umpire.