International law requires the consent of all parties, but China and the US reject when decisions cross short-term strategic interests.
By Humphrey Hawksley*
Flutter over the surprise visit to China by Philippines President Rodrigo Duterte may soon fade. But his abrupt and public dismissal of the United States in favor of China has weakened the argument that international rule of law could underpin a changing world order.
The issue in question was the long-running dispute between China and the Philippines over sovereignty of Scarborough Shoal, situated 800 kilometers southeast of China and 160 kilometers west of the Philippines mainland, well inside the United Nations–defined Philippines Exclusive Economic Zone.
Despite a court ruling and Duterte’s cap in hand during his October mission to Beijing, Philippine fishing vessels still only enter the waters around Scarborough Shoal at China’s mercy.
The dispute erupted in April 2012, when China sent ships to expel Filipino fishing crews and took control of the area. The standoff became a symbol of Beijing’s policy to lay claim to 90 percent of the South China Sea where where it continues to build military outposts on remote reefs and artificially created islands in waters claimed by other nations. Lacking military, diplomatic or economic muscle, the Philippines turned to the rule of law and the Permanent Court of Arbitration in the Hague. A panel of maritime judges ruled China’s claim to Scarborough Shoal invalid in July this year. China refused to recognize the tribunal from the start and declared the decision “null and void,” highlighting the complex balance in the current world order between national power and the rule of law.
Beijing’s response mirrored a 1986 US response to Nicaragua’s challenge in the International Court of Justice. The court ruled against the United States for mining Nicaragua’s harbors and supporting right-wing Contra rebels. The United States claimed the court had no jurisdiction.
With these stands, both China and the United States weakened a crucial element of international law – consent and recognition by all parties.
The Western liberal democratic system is being challenged, and confrontations in Asia and Europe, as in Crimea and Ukraine, replicate the lead-up to the global conflicts of last century’s Cold War. As Nicaragua and Central America were a flashpoint in the 1980s, so Scarborough Shoal and South China Sea are one now. Other flashpoints are likely to emerge as China and Russia push to expand influence.
Western democracies being challenged by rising powers have a troubled history. The 1930s rise of Germany and Japan; the Cold War’s proxy theaters in Vietnam, Nicaragua and elsewhere; and the current US-Russian deadlock over Syria are evidence that far more thought must be given in the deployment of international law as a mechanism for keeping the peace.
The view is supported, on the surface at least, by Russia and China who issued a joint statement in June arguing that the concept of “strategic stability” being assured through nuclear weapons was outdated and that all countries should abide by principles stipulated in the “UN Charter and international law.” Emerging power India, with its mixed loyalties, shares that view. “The structures for international peace and security are being tested as never before,” says former Indian ambassador to the UN, Hardeep Singh Puri, author of Perilous Interventions: The Security Council and the Politics of Chaos. “It is everyone’s interest to re-establish the authority of the Security Council and reassert the primacy of law.”
The United States makes a similar argument, with Defense Secretary Ashton Carter recently speaking about the “peaceful resolution of disputes, the right of countries to make their own security and economic choices free from coercion…. guaranteed by international law.”
The origins of international law go back centuries, and its main instrument today is the 1945 UN Charter. Among its many objectives is to establish conditions under which international law can be upheld.
The problem is that too many governments insist that the international legal system is biased towards vested interests of the West, indicating urgent need of an overhaul.
UN judicial mechanisms suffered damaging blows to credibility in two recent examples.
The 1994 United Nations Convention on the Law of the Sea, or UNCLOS was designed to keep shipping and trade routes open, but failed in the Philippines case because of China’s outright rejection of its application even though China was among the early signatories.
The International Criminal Court was set up in the Hague in 2002 to try crimes against humanity. But in October, three African governments – South Africa, Burundi and Gambia – announced plans to quit the ICC. Gambia described it as the “International Caucasian Court,” intended to target Africans, complaining that at least 30 Western nations, had committed war crimes against independent sovereign states since the ICC’s creation with none indicted.
The United States weakens its own support for upholding law by refusing to ratify either UNCLOS or the ICC.
“International law has a double face,” says Keyuan Zou, professor of international law at Lancashire University. “On the one hand, it serves the rule of-law. But on the other it is used as an instrument to pursue national interest. In the latter sense, power politics plays a big role.”
As China becomes richer and more confident, it exhibits disdain for the existing order by planting seeds of a parallel system. It has announced its own International Maritime Judicial Center to counter the Hague tribunal’s Philippines hearing. It created the Asian Infrastructure Investment Bank to compete with the World Bank, the Asian Development Bank and similar institutions. It unveiled its One Belt One Road initiative to secure trade routes and supply chains far from its borders and hurried to build outposts around South China Sea islands and reefs while the Permanent Court of Arbitration conducted its review.
Then in July it tore up the balance between law and power, rejecting the tribunal’s South China Sea ruling, and power became supreme.
Duterte, reacted first by warning of a “bloody confrontation” over Scarborough Shoal. The United States backed the Philippines, supported the tribunal’s finding and challenged China’s resolve by sailing warships through the waters in Freedom of Navigation operations.
Duterte’s bravado did not last long. He back-pedaled, acknowledging that the Philippines $294 billion economy could not withstand hostility from China’s $11 trillion economy. He flew to Beijing and came away announcing that he had struck his own deal over Scarborough Shoal while winning $13.5 of trade and investment agreements from China. Most significantly, he declared that his country’s future lay with China and not with its traditional ally. “America has lost,” he stated coldly, in a grim marker.
The United States promotes international law as the level playing field on which smaller nations need not make such black and white choices, as they had to during the Cold War, of deciding which of two larger rivals to support.
Many weaker nations such as Moldova, Cambodia and Singapore watch closely and hope the Philippines story does not become a trend.
To achieve that, two steps are required: First, the institutions of international law must be overhauled so they are recognized by all parties and rejected only as a last resort. Second, governments must accept the concept of international law in the balance of power even when it might go against their short-term strategic interests.
The cold reality of global politics exemplified by Duterte’s decision shows that such an overhaul might not be possible and, in short, warns about a repeat of history whereby a dominating hegemonic power holds threatening sway over regional vassal states.
Evidence of this came within weeks of Duterte’s Beijing visit. China stated unequivocally that the situation with Scarborough Shoal was unchanged: It remains Chinese sovereign territory, and satellite pictures show Chinese Coast Guard ships still patrolling there.
*Humphrey Hawksley is formerly the BBC’s Beijing Bureau Chief and author of The Third World War: A Novel of Global Conflict. His next book Asian Waters: America, China and the Global Paradox will be published in 2017.