China’s empty claim to be a defender of international law

November 02, 2015 15:53
Chinese dredging vessels are seen in the waters around Mischief Reef in the disputed Spratly Islands in the South China Sea. Photo: Reuters

China suffered a double whammy in the South China Sea last week as the US navy carried out a freedom-of-navigation operation, sending a destroyer to within 12 nautical miles of artificial islands in the Spratly island group, while an arbitration panel in The Hague set up under the United Nations Convention on the Law of the Sea (UNCLOS) decided that it has the jurisdiction to proceed in a legal challenge brought by the Philippines against China.

China’s reaction to the American action has been low-key. Instead of canceling scheduled military-to-military exchanges, China has made use of existing platforms to lodge protests.

The Chinese naval commander, Wu Shengli, held a teleconference with Admiral John Richardson, the US Chief of Naval Operations. China also decided to proceed with the previously scheduled visit to Beijing this week of Admiral Harry Harris, head of the US Pacific Command.

This reflects the growing maturity of the bilateral relationship, where the two sides can now talk about their differences. Previously, at the first sign of a crisis, the mil-mil relationship would be the first to be frozen.

The immediate impact of the freedom-of-navigation exercise may be to stiffen the spines of countries with maritime disputes with China. But such operations will also give China an excuse to speed up its construction and militarization of its artificial islands.

The bottom line is that China is changing the situation on the ground and there is little the United States or any other country can do about it.

The impact of the decision of the arbitral tribunal on China and its international image may well be more profound. There, the whole world is watching to see the extent to which China honors its pledge to uphold international law.

A year ago, to mark United Nations Day, China’s foreign minister Wang Yi published a long statement calling China a “staunch defender and builder of international law”. Similarly, within China, the Communist Party has been loudly proclaiming that it rules the country according to law.

After the Philippines filed its case against China in 2013, the Chinese government declared that it would not take part in the proceedings.

In 2014, it issued a paper to support its legal position, asserting: “This Position Paper is intended to demonstrate that the arbitral tribunal established at the request of the Philippines for the present arbitration does not have jurisdiction over this case.”

Thus, before deciding on the merits of the Philippine case, the five-member tribunal first had to satisfy itself whether it did, indeed, have jurisdiction.

It held a hearing on the issue and studied Philippine submissions as well as China’s position paper and other documents before making its decision on Oct. 29.

In rendering that decision, the tribunal concluded that it “has jurisdiction to address the matters raised” in seven of the 15 submissions made by the Philippines while reserving a decision on the other submissions.

Thus, it rejected China’s claim that the tribunal lacked jurisdiction to hear any of the submissions.

The tribunal will now move to consider detailed submissions of the Philippines, and again China will be given a chance to have its say.

But China has made it clear that it will boycott such proceedings.

After the arbitral tribunal’s decision on jurisdiction was issued, China’s foreign ministry issued a statement lambasting not only the Philippines but the tribunal itself, set up under the authority of UNCLOS.

China asserted the tribunal’s decision was “null and void” and said it had severely violated “the legitimate rights that China enjoys as a State Party to the UNCLOS, completely deviated from the purposes and objectives of the UNCLOS, and eroded the integrity and authority of the UNCLOS”.

Actually, Article 288 of UNCLOS sets out unambiguously how disputes over jurisdiction are to be resolved. Paragraph 4 states: “In the event of a dispute as to whether a court or tribunal has jurisdiction, the matter shall be settled by decision of that court or tribunal.”

In this case, the tribunal has rendered its decision on the question of jurisdiction. China, a state party to the UNCLOS, is openly in defiance of the tribunal.

Instead of hurling political rhetoric at the tribunal, it would be more productive if China attempts to make a legal rebuttal and argue why it feels that Article 288 does not apply in this case.

Otherwise, what the world will see is a country that claims to defend international law while defying it when a ruling goes against its interests. That is a sore loser, not an upholder of law.

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Frank Ching opened The Wall Street Journal’s Bureau in China in 1979. He is now a Hong Kong-based writer on Chinese affairs.