On October 29, 2015, an arbitral tribunal registered with the Permanent Court of Arbitration (PCA) at The Hague handed an award on the jurisdiction and admissibility issues concerning an arbitration case initiated by the Philippines against the People’s Republic of China (“China”), in which the tribunal ruled that it has the authority to hear the Philippines’ claims and that those claims are admissible. Two days before the award was rendered, the USS Lassen, an American destroyer, sailed within 12 nautical miles of Zhubi Jiao (known as the Subi Reef in English), which is under Chinese control and has recently been built into a much larger island by China.
There is no doubt the decision was a blow to China, which has a long-held objection to the jurisdiction of the arbitration court — and possibly to that of any international tribunal — on the claims arising of the disputes involving the ownership of the islands (or reefs and features) and the relevant waters. From the very beginning of case, the Chinese Government has repeatedly indicated that “it will neither accept nor participate in the arbitration thus initiated by The Philippines.” Indeed, the hearings were conducted without China’s appearance, and, not surprisingly, the first award on jurisdiction almost completely defeated China’s romantic hope that the tribunal would not take this case. The decision on jurisdiction will be followed by a second award on the merits of the disputes, predictably not in China’s favor. Very likely, the final award will rule against China’s claims on historical rights within the “nine-dash line.” Needless to say, whatever China’s attitude is by that time, it has to face the judgment.
This essay addresses two issues from the perspectives of international relations and international law. First, it asks whether China is entitled to pursue its national interest in South China Sea. Second, it explains why it is unwise for China to ignore the legal proceedings even for the sake of pursuing its own national interests.
The South China Sea and China’s National Interests
China began to declare its claims in the South China Sea as its “core interest” in 2010, reportedly before visiting American senior officials. Such labeling would lift the strategic importance of that body of water to the same level on which Xinjiang, Tibet and Taiwan stand, territories that China has vowed to protect at all costs. According to some American commentators, it was this declaration that alarmed the United States, which has since been determined to step in and confront China face-to-face on the South China Sea disputes.
Indeed, China might not be wise to describe too early the territorial disputes in South China Sea as its core interest. Realizing the sensitivity of this phrase, it has stopped doing so in the recent years. However, it is important to point out, despite the debate on what should be the right name to characterize the nature of its claims, China does have legitimate interests to pursue, and Chinese claims are by no means less strong than those of others. Reports in the Western media have depicted China as purely as an aggressor in the South China Sea, as if China is the only claimant who does not deserve anything in this part of the Pacific Ocean: few would agree that China probably has a strong legal basis for its claims and, from a realistic perspective, a larger power base to materialize its claims.
The South China Sea is of vital importance to many countries, especially the nations and sub-national regions surrounding it, first of all because of its geopolitical and geoeconomic significance. It connects East and Southeast Asia to the Middle East, Europe and Africa, and transports over half of the world’s annual merchant fleet tonnage. 80 percent of China’s crude oil imports pass through the South China Sea, compared with two thirds of South Korea’s energy supplies and 60 percent of Japan’s energy supplies. In addition to the strategic centrality of location, the South China Sea is also rich in natural resources, including oil and fishery resources. For instance, it has proven oil reserves of over seven billion barrels, while some estimate that the total reserves could reach 139 billion barrels. In short, nations are concerned about everything about the South China Sea mainly because of two reasons: its strategic location as the navigable rimland of the Eastern Hemisphere is directly linked to every regional player’s national security and other countries’ economic security; and its natural wealth, if explored and unitized, could tremendously benefit countries in this region. Its rich fishery resources have supported the livings of generations of fishermen of the littoral states. For instance, fishery gains that Chinese fishermen harvested from the South China Sea accounted for more than 25 percent of the country’s total catch production.
It is unlikely for the South China Sea to be dominated by any single power in the foreseeable future, simply because far too many nations have huge stakes in this region.
The South China Sea is particularly important for China. In addition to the concerns relating to national security and economic benefits, the South China Sea offers a place for China to project its rapidly growing military power farther from its mainland. China has been engaging in massive land reclamation, an effort which has turned reefs into islands with harbors, airports, runways, military jets and installed missiles. As observed by geopolitics strategist Robert D. Kaplan, “China’s position vis-à-vis the South China Sea is akin to America’s position vis-à-vis the Caribbean Sea in the nineteenth and early twentieth centuries. The United States recognized the presence and claims of European powers in the Caribbean, but sought to dominate the region, nevertheless” (Kaplan, 2014).
What China is doing in the South China, especially its massive land reclamation, has created the impression that China is a belligerent power. As a matter of principle, however, China cannot be blamed for pursuing its legitimate national interests in the South China Sea. Indeed, given the strategic importance of the waters there as alluded above, it is unlikely for the South China Sea to be dominated by any single power in the foreseeable future, simply because far too many nations, including all the major powers of the world, have huge stakes in this region.
That said, there is nothing morally wrong for China to expand its control and influence over the waters and islands of South China Sea. China is not the only nation that does this. For instance, while China’s island-building works have been condemned by many, it is important to note that there is nothing new in these kinds of activity in the South China Sea and they were not even initiated by China: The Philippines and Vietnam started land reclamation and building airstrips in the 1970s, followed by Malaysia in the 1980s. Vietnam was the most active claimant in terms of both land reclamation and outpost upgrades between 2009 and 2014. In this sense, China’s island-building is not something which is entirely unusual as it is simply following other claimants’ footsteps, albeit its land reclamation is on a much bigger scale. As noted by Kaplan (2014), all the politics in Asia are driven by nationalism, and “that nationalism is leading to the modernization of militaries — navies and air forces especially — in order to defend sovereignty, with which to make claims of disputed maritime resources.” In this sense, China is not different at all from all other claimants in terms of its military building-up and land reclamation activities.
International Law and National Interest
As noted, China’s position on the arbitration case initiated by The Philippines is “no acceptance, no participation” (bu jieshou, bu canyu). Of course, this particular stance with respect to the South China Sea arbitration case is not meant to be understood as despisement against international law. In contrast, China says it does so in order to better comply with international law. In the words of Chen Xiaodong, China’s Ambassador to Singapore, in refusing to participate in the arbitration, “China is exercising its lawful right under the United Nations Convention on the Law of the Sea (UNCLOS) and demonstrating its commitment to upholding the authority of international law” (Chen, 2016).
It is however submitted that China’s non-participation policy in the South China Sea arbitration case goes against its own national interests, as there are probably better ways to deal with the difficulties that China is facing in the South China Sea disputes. At least, compared with a different approach, which I would term as “Active Participation but No Guaranteed Acceptance”, non-participation offers less benefits but definitely incurs more costs for China, for the following reasons.
First, non-participation could incur enormous reputational costs for China. Although China keeps saying that it respects international law and at least has no intention to break it, it is however very unlikely for this non-participation stance to be interpreted as a gesture of complying with international law by other countries, as refusing to participate in the legal resolution of international disputes could hardly be viewed as showing respect for international law at all. Instead, it might be — as it has already been — interpreted as a complete rejection of international law.
Whether China likes it or not, the ruling of the arbitral tribunal in the current South China Sea arbitration case will have serious consequence for China’s role as a global power. China is not yet such a power, if a global power is defined as a nation which has the capacities to project its hard power globally and advance its soft power to attract, persuade and mobilize other countries at the global level. The United States is the only global power — and the only superpower — at this stage of world history, but China is playing catchup. China’s ambition, from the original “peaceful rise” to the “great renewal of the Chinese nation,” a term which has been adopted in the Chinese Communist Party’s annual report to its national congress, was never clearly defined but the underlying purpose still seems to be obvious. That is, China would regain the leadership position which it used to hold for hundreds of years in history, if the “world” is understood as East Asia.
To be a global power with global leadership, a nation needs not only the hardware capabilities such as economic wealth and military might, but also the respect of the international society. That is, the behaviors of the global power must demonstrate a predictable pattern, carrying principles and values which provide security and other benefits to most countries of the international society. In our contemporary world, upholding international law and the rule-based international legal order is a key virtue of a global leader. If a great power is perceived by most other countries as a defiant of international law, it is almost impossible for it to mobilize other countries to follow it in international affairs. Put simply, leadership requires trust by others, and most nations today would not trust a country which is perceived to be one having no respect for and regard to the international legal process.
This is not to say a country must blindly accept anything delivered by an international dispute resolution body in the name of international law. Any country can challenge the unfavorable rulings of an international tribunal, and great powers are especially in a better position to do so because of the legal resources and legal capabilities they possess. It is however very unwise for a country, especially a would-be global power, to be seen as having contempt for international law. Unfortunately, China’s “non-participation” stance is in the early stage of a process for creating such an impression in international society.
Second, by refusing to participate in any way in the current South China Sea case, China has lost at least two legal opportunities from the perspective of international law. One opportunity is related to the constitution of the arbitral tribunal. According to Article 3 of Annex VII to the UN Law of the Sea, from which the tribunal derived its legitimacy and procedural rules, each party to the dispute is allowed to appoint at least one member of the tribunal, “who may be its national.” The other three members shall be appointed by agreement between the parties. In case the parties cannot reach an agreement, the President of the International Tribunal for the Law of the Sea (ITLOS) is authorized to make the appointments. If China participated in the process — at least in the hearings concerning jurisdiction and admissibility of the claims, it would be able to appoint at least one arbitrator, and block the appointment of the arbitrators that it believes to be unfriendly. Further, in accordance of the Rules of Procedure of the tribunal, it can challenge any arbitrator for whom it has justifiable doubts about his/her impartiality or independence. Unfortunately, as can be seen, in the current case, all the five arbitrators were appointed by The Philippines and the then ITLOS President, who is a Japanese national.
It is very unwise for a country to be seen as having contempt for international law. China’s “non-participation” stance is in the early stage of a process for creating such an impression.
China’s non-participation has also led to the loss of the opportunity to present the its own case before the tribunal. A tribunal’s decision is based on the legal arguments presented by the parties, supported by convincing interpretations of legal rules coupled with admissible evidence. In most cases, there could be more than one interpretation for the same legal rules as well as contradicting evidence about the same facts. To win a case or minimize the losses, a party must appear before the tribunal to present arguments and evidence. This is essential at least for the purpose of counterbalancing the case of the other party and influencing the deliberation of the tribunal.
Learning from the United States
Great powers do not always like disputes concerning them to be adjudicated by an international tribunal which is beyond their control. In these cases, the best position is not avoiding the relevant international legal process, but making the most out of it. In Nicaragua v. United States, a case decided by the International Court of Justice (ICJ) in 1986, the practice of the United States offers a useful precedent for China. In April 1984, Nicaragua sued the United States before the ICJ, alleging that the United States was violating international law by, among others, using military force to attack Nicaraguan facilities and naval vessels, mining Nicaraguan ports, trespassing Nicaraguan airspace, and seeking to overthrow the Nicaraguan government. The United States vehemently rejected the jurisdiction of the ICJ, but still participated in the hearing concerning jurisdiction and argued forcefully against the court’s jurisdiction. One of the ICJ Judges, Judge Schwebel, who was an American national, agreed with the US position in the first, second and third votes held to determine the court’s jurisdiction, although he concurred with his fellow judges to decide that the Court had jurisdiction in the fourth vote. After the United Sates lost on the jurisdiction ground, it withdrew from the case and refused to participate in the merits phrase of the legal proceedings. In the end, the ICJ ruled in favor of Nicaragua, holding that the US was in breach of its obligations under customary international law not to use force against another state and not to violate other countries’ sovereignty. Judge Schwebel, who was the only dissenting judge in the case, wrote a dissent, which was twice as long as the actual judgment, to support the American position. In that well-argued dissenting opinion, Judge Schwebel was able to point out the legal weaknesses in the judgment and advance legal arguments to defend the military activities of the United States in Nicaragua, all perfectly from the perspective of international law. That is, the United States lost the case, indeed, but it did not lose international law because it had at least the support of some nuanced legal arguments from a member of the bench to support its position, which tremendously helped to mitigate the reputational costs of the United States.
In short, my argument is that China should have participated in the South China Sea arbitration case, at least in the phrase concerning jurisdiction. Not doing so will lead to huge reputational costs as China, rising as a global power to undertake global leadership, cannot afford being viewed as an outlier of the international system which is maintained by international law. In addition, non-participation also prevents China from taking up the legal opportunities enshrined in the procedural rules of the relevant legal process.
The final award of the arbitral tribunal will be released soon, and most likely it will not be in China’s favor on most of the merit-related issues. Predictably, a significant consequence of the case is that other claimants might follow suit to bring legal action against China. While it is too late for China to do anything within the legal proceedings of the current arbitration case initiated by the Philippines, it is advisable that China fully participate in any future case in the South China Sea disputes, preferably in the stage concerning jurisdiction. It is important to stress again that, based on established rules and practices in international law, participation in the hearings on jurisdiction does not necessarily mean acceptance of the jurisdiction of the relevant international tribunal. That is, legally speaking, participation but no-acceptance is permissible under international law. If China loses the case on jurisdiction issues, it can still withdraw from the case and refuse to join the legal proceedings on the merits. Even when China is purposely absent in the second stage, it should still prepare the necessary legal arguments and evidence which are of the same quality — and quantity, if necessary — as the submissions made by a party who actually participates in the legal process to defend its position. In this sense, the Position Paper on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines, released by the Chinese government on December 7,2014, should be celebrated, because it is the first document issued by China to elaborate on its legal position on this case. It is a landmark document in the sense that it speaks the language of international law and roots China’s own claims in international law, indicating that China can and does jump on the bandwagon of using international law to protect its national interest.
In the meantime, expanding and solidifying China’s actual control of the islands and waters in South China Sea is no less important, especially the island-building works. Island-building itself is not against any international law rules concerning territorial integrity, although it is an open question whether the maritime environment in the South China Sea was damaged as a result of the land reclamation. Even from the perspective of international law, actual control of the disputed land can in many cases strengthen a party’s legal claims, rather than weaken it. In this sense, international law and pro-active state actions (in exercising actual control) work together to protect a country’s national interest.
Chen, X. D. (2016, March 5). China's non-participation lawful. The Straits Times. Retrieved from http://www.straitstimes.com/opinion/chinas-non-participation-lawful
Kaplan, R. D. (2014). Asia’s cauldron: The South China Sea and the end of a stable Pacific. New York: Random House