The Hague: In a few hours, when the Permanent Court of Arbitration in The Hague releases its verdict on the South China Sea dispute, China will likely thumb its nose at a verdict “unilaterally” pursued by the Philippines.
The Philippines may have a territorial dispute with Beijing, but it is only a small player in the struggle for Asian influence between China and the United States that the South China Sea dispute has now escalated. Among the volley of claims and counter-claims that will be parried between Beijing and Washington in the coming days, one in particular from China will stand out: that the United States has no legitimacy to intervene in a maritime conflict when it has not itself ratified the UN Convention on the Law of the Sea (UNCLOS).
Various commentators have called out the US insistence in applying UNCLOS provisions to the South China Sea arbitration as hypocritical and all too convenient. A European diplomat posted in The Hague politely characterised the American position to this writer as “awkward”. The United States may not have ratified UNCLOS, but there is nothing in international law that prohibits it from invoking the instrument. India for instance, maintains that it abides by the obligations of ‘Nuclear Weapons States’ in the Nuclear Non-Proliferation Treaty (NPT), although it is not a signatory. As with the US and UNCLOS, India was among the key negotiators of the NPT, with Indira Gandhi choosing ultimately — like the Reagan administration did with UNCLOS — to stay out of the regime based on “enlightened self-interest”. Today, the US military has let it be known that it believes accession to UNCLOS “is in the national interest of the United States.”
To the student of international relations, the US position on UNCLOS is interesting because of the direct bearing it has had on China’s attitude to the South China Sea dispute.
Both China and the Philippines have ratified UNCLOS, but the convention’s applicability to the current dispute is contested by Beijing. In doing so, China is merely invoking the exceptionalism that characterises the US approach to the law of the sea.
Three arguments can be made to support this claim.
‘Historic claims trump UNCLOS’
First, both the United States and China prefer an approach that privileges customary international law — what Beijing implies as “historic rights” in the South China Sea — over the provisions of UNCLOS.
In 1982, when Reagan refused to sign the convention, his special representative and leader of the UNCLOS delegation, assistant secretary James Malone, put out a memo outlining the US position. The United States will abide by obligations in UNCLOS only where they reflected customary international law, wrote Malone.
In support, he cited the establishment of an Exclusive Economic Zone by the United States. But on the issue of deep seabed mining, the US refused to accept UNCLOS provisions, citing historic claims made through domestic legislation. The US sought full jurisdiction over its “extended continental shelf” on the basis of legal instruments like the Presidential Proclamation 2667 and the Outer Continental Shelf Lands Act (OCSLA) of 1953. The US position was simple: where historic claims had been made, they would overrule UNCLOS provisions. China is making precisely the same claim with respect to its ‘nine-dash-line’ in the South China Sea. The territorial delineation of maritime boundaries, China argues, must respect its “historic rights”. To support its claim, Beijing has invoked the 1947 “Map of Chinese islands in the South China Sea”, the Declaration of the Government of the People’s Republic of China on the Territorial Sea of 1958 and the Law of the People’s Republic of China on the Territorial Sea and the Contiguous Zone of 1992. These instruments claim sovereign jurisdiction over the disputed Nansha/Spratly Islands, in a manner that is entirely inconsistent with the UNCLOS. Whether these claims amount to state practice or customary law is contested, but the US and Chinese positions on UNCLOS are identical in this respect.
No room for ‘compulsory’ arbitration
Second, China’s take on “compulsory dispute settlement” through the UNCLOS regime closely resembles the US position. Arguments against the US ratification of the convention routinely cite its dispute settlement mechanism as an invitation for “baseless international lawsuits”.
This argument is central to the US position on UNCLOS. Back in 1983, Malone argued that the “unique and unprecedented provisions of UNCLOS on dispute settlement […] will pertain to treaty parties only”.
China, similarly, has suggested that “the Philippines is abusing the dispute settlement procedures under the convention,” by resorting to compulsory arbitration. In support of its claim, Beijing argues that the current dispute concerns the delimitation of maritime boundaries, an issue from which China sought exemption in 2006 from the UNCLOS arbitration regime.
The resources below
Third, the legal and diplomatic approach of the United States to the governance of marine resources is now being emulated by China in the South China Seas.
On account of not ratifying UNCLOS, the US has mostly negotiated bilateral and regional agreements to exploit fisheries, energy and other economic resources in the oceans. Notably, the United States is keen to create a parallel regime for the governance of the Arctic Ocean to harvest its rich natural resources in a way that does not require its ratification of the convention. China is merely asserting the same claim in the South China Sea. In response to the arbitration process, the position paper of the Chinese foreign ministry cites the many political agreements it has signed with the Philippines and other ASEAN countries to resolve sovereign claims through negotiation. This is perhaps China’s strongest challenge to the jurisdiction of the PCA: Beijing has asserted that the Philippines did not exhaust its options before pursuing legal means. The claim that Manila has not previously raised the management of marine resources in the sea through political channels is conceded by its lawyers.
If the South China Sea dispute marks the rise of an assertive China, its behaviour is modelled on the sole remaining superpower, the United States. Whatever the outcome of the arbitral tribunal, it is now clear that Beijing aspires towards the exceptionalism that marked US conduct in the post-war international order. If Washington sought to use the South China Sea as a flash point to contain the rise of China, it has had the unintended effect of disrupting a stable multilateral regime. In the decision’s aftermath, it is anyone’s guess how Beijing will respond.
International lawyer Julian Ku argues that American pressure on the South China Sea dispute may push China “to follow the US example and withdraw from UNCLOS […] to avoid compulsory legal procedures.” For China to opt out of a critical international treaty would be disastrous – but par for the ill-thought course that the United States has steered the region towards.
Arun Mohan Sukumar is at the Observer Research Foundation, New Delhi. He is covering the South China Sea dispute at the Permanent Court of Arbitration in The Hague at the invitation of The Wire.
His first dispatch was published on July 11, 2006: