In October, the Permanent Court of Arbitration (tribunal) at The Hague issued judgments at the preliminary phase that many view as undermining China’s credibility in the South China Sea.
Until the tribunal addresses the merits of the Philippines’ claims (judgment due mid-next year), it is too early for Manila to celebrate; nonetheless, their lawyers have done a commendable job. The lawyers for the Philippines succeeded in convincing the tribunal to hear their complaints as a dispute concerning the interpretation and application of the Convention on the Law of the Sea (UNCLOS).
Not as contested by China as a dispute concerning territorial sovereignty and maritime boundaries, which China insisted as being excluded from the tribunal’s competence because of a declaration Beijing deposited with the United Nations in Sept 2006, when it ratified UNCLOS that “it does not accept any of the procedures provided for in Section 2 of Part XV of the Convention [compulsory procedures entailing binding decisions] with respect to all categories of disputes referred to in paragraph 1(a) (b) and (c) of Article 298 of the Convention”.
By virtue of this declaration, China assumes that disputes relating to sea boundary delimitations or those involving historic bays and historic titles, disputes relating to military activities, law enforcement activities, and disputes under the purview of the United Nations Security Council are excluded from compulsory dispute settlement procedures under UNCLOS.
Among the 15 Philippines submissions, a number deal with the legal status of maritime features at sea. For example, the Philippines want the tribunal to declare which maritime features are classified (under UNCLOS) as rocks or low-tide elevations. Rocks that cannot support human life are entitled only to a 12-mile territorial sea, and low-tide elevations (transformed or otherwise) are not entitled to any maritime zone. Artificial islands, on the other hand, are entitled to only a 500m safety radius.
The Philippines want the tribunal to declare, for example, that the disputed Scarborough Shoal is a rock and that Subi Reef and Fiery Cross Reef where China has built airstrips are neither islands nor rocks under UNCLOS. Hence, they are not entitled to any maritime zone, like the territorial sea. Besides this, the Philippines want the tribunal to declare that the Second Thomas Shoal and Mischief Reef are embedded on its continental shelf. Clearly, this is a difficult point for the tribunal to decide because it involves maritime boundary delimitation and territorial ownership.
In the Preliminary Award on Jurisdiction and Admissibility, the tribunal did find for the Philippines in that it has jurisdiction to decide on the maritime zone entitlements for Scarborough Shoal, Mischief Reef, Second Thomas Shoal, Subi Reef, Gaven Reef, McKennan Reef, Hughes Reef, Johnson Reef, Cuarteron Reef and Fiery Cross Reef.
The tribunal also ruled that China’s non-participation in the proceedings and its declaration under UNCLOS is no bar to its competence. Worse still, the tribunal rules that, as party to UNCLOS, China is bound under international law by any award it renders, a decision that is likely to call into question the significance of declarations or reservations under international law as they are deemed meaningless (as in China’s case).
The question is: will China comply with the decision of the tribunal or will it join many other powers who have defied judgments from international courts and tribunals?
China will not be the first state to walk away from judgment if it were to defy the award. It can cite other precedents for non-compliance. For example, in 2013, Russia refused to participate in the hearing before the International Tribunal on Law of Sea (ITLOS) over the detention of the Dutch flagged-vessel — the Arctic Sunrise — and defied the judgments. Russia refused to release the crew members and did only after the State Duma offered amnesty, two months later. Russia also refused to release the vessel promptly; the boat was released nine months later.
The United States’ record on non-compliance with judgments of the International Court of Justice (ICJ), for example, is more troubling. In 1986, the US contested the competence of the ICJ to hear the case concerning military and paramilitary activities in Nicaragua. And, when the court decided to hear the case on the merits, the US refused to participate and withdrew its consent to the compulsory jurisdiction of the court. In fact, the US defied the order from ICJ to withdraw support for the Contras and the mining of harbours in Nicaragua.
In the case concerning US diplomatic consular staff in Teheran (judgment of May 24, 1980), Iran, which did not attend the court proceedings, was ordered to return the embassy and release the hostages with immediate effect. Despite international pressures, including economic sanctions and a failed military rescue operation, Iran detained the hostages for 444 days; they were released in 1981.
In 2005, in a case concerning legal consequences of the construction of a wall in the occupied Palestinian Territory between the UN General Assembly and Israel, the ICJ ruled that part of the security fence Israel built on the Palestinian territory was contrary to international law. Israel refused to heed the ICJ advisory opinion to dismantle sections of the security fence in the West Bank and East Jerusalem.
While two wrongs won’t make one right, there is little incentive for China to accept the decisions of the tribunal it views as politically motivated. Given the nature of state practice in an anarchical international system that lacks an authoritative enforcement mechanism, like the earlier defaulters, China’s reputation is not likely to be permanently sullied.
The writer is a student of international law and geopolitics