The South China Sea Ruling: China's International Law Dilemma
Image Credit: United Nations Photo

The South China Sea Ruling: China's International Law Dilemma

 
 

Perhaps for the first time ever, the somewhat obscure UN Convention on the Law of the Sea (UNCLOS) is making global headlines. On July 12, The Hague-based Permanent Court of Arbitration (PCA) issued a ruling on a case brought by the Philippines, holding that China’s expansive claims to much of the South China Sea were not valid under international law. The decision, which landed on the front page of newspapers around the world, represented a near-complete victory for the Philippines, and a strong challenge to China’s decades-long efforts to strengthen its hold over the Sea.

The verdict came as no surprise: most legal experts viewed China’s legal position as weak, and gave Beijing little chance of emerging unscathed. China could have used the months leading up to the verdict to formulate a plan to lose gracefully, and to use the PCA’s verdict as an opportunity to change course on the South China Sea. Instead, Beijing doubled down on intransigence, signaling repeatedly that it would unreservedly reject an unfavorable verdict. Speaking at a conference in Washington just days before the decision was announced, former top diplomat Dai Bingguo referred to the then-pending ruling as “nothing more than a piece of waste paper,” and warned that “no one and no country should implement the award in any form.”

In case there were any lingering doubts, the Chinese foreign ministry issued a statement rejecting the verdict within hours of its publication. “The award is invalid and has no binding force,” the Ministry said. “China does not accept or recognize it.”

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Perhaps unsurprisingly, much of the recent commentary on the case has focused on what the ruling might mean for the reduction or escalation of tensions in the South China Sea. But China’s response to the verdict also sheds light on Beijing’s attitude toward international law more generally, as well as toward the U.S.-led international system. The decision may prove to be a turning point of sorts: China may be entering a new phase of its relationship with the international order. The past 40 years have been about China’s integration into the world community. The question going forward is whether China will begin to turn away from the international system, and instead take a more overtly interest-based approach to international norms, laws, and institutions.

The story of China’s return to the world stage is a dramatic one: few countries have moved as quickly as China over the past several decades from almost-complete isolation to deep integration in the international system. When the United States finally established diplomatic relations with the People’s Republic in 1979, the country was in rough shape, still reeling from the ten-year debacle of the Cultural Revolution and slowly trying to regain its footing under the leadership of newly-installed de facto chief Deng Xiaoping.

With assistance from the international community, China shed what one former U.S. president called its “angry isolation,” and gradually became an influential player in world affairs. From 1979 to 1989, China joined key international organizations, signed and ratified an impressive number of international instruments, and created the domestic governance infrastructure needed to handle its growing list of international obligations. It joined the World Bank, for example, in 1980, and quickly became one of the leading recipients of development loans. It joined the IMF in the same year, and the ILO in 1983. An alphabet soup of other organizational memberships followed.

The process of integration was brought to a standstill in the wake of the Tiananmen Square tragedy in 1989, but resumed in the mid-1990s. For the most part, the deepening integration and engagement continues to this day: China is now a key player on virtually every aspect of global politics. Take the Paris Agreement on climate change, for example: observers generally agree that China helped shepherd the December 2015 agreement to the finish line. Or the January 2016 nuclear deal with Iran: China signed on to the tough economic sanctions on Iran that made the deal possible, and was also at the table as a member of the so-called P5+1 group of nations that negotiated the agreement with Tehran.

And yet, despite all of this progress, China is not yet the robust supporter of the international system that many had hoped it would become. It is not yet, to use the famous phrase coined by former World Bank President Robert Zoellick, a “responsible stakeholder,” a nation that regularly acts, even against its own self-interest, for the good of the international order as a whole. When China declined in 2014 and 2015 to back the damning report by the UN Commission of Inquiry on Human Rights in North Korea, it gave short shrift to its global responsibilities. The same could be said of its decision in May 2014 to team up with Russia to block a UN Security Council Resolution on the humanitarian crisis in Syria.

And that is what’s troubling about China’s reaction to the South China Sea decision: it exposes the underlying ambivalence of China’s leaders toward not just the Law of the Sea treaty, but also the international system as a whole. Beijing’s intemperate reaction to the verdict from The Hague raises the disquieting possibility that China may act on its ambivalence more and more often, refusing to follow laws and norms it doesn’t like. If it does so, it will further undermine the international system at a time when it is already under severe strain.

Where to go from here? In light of the PCA ruling, the United States and its allies need to deepen their engagement with Beijing. The U.S. government in particular should continue to encourage Beijing to see this loss as an opportunity to turn the page on a dispute that has harmed China’s reputation, both in the region, and beyond. At the same time, Washington should also look for other opportunities for constructive collaboration with Beijing on other issues of mutual concern. Beijing began its reentry into the world community in the 1970s, but the events of the past several days show all too clearly that the process of integration is not yet fully complete.

Thomas Kellogg is director of the East Asia Program at the Open Society Foundations. He is also a lecturer-in-law at Columbia Law School. 

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