The Breakdown of International Law in the South China Sea

110823-N-XR557-206 SOUTH CHINA SEA (Aug. 23, 2011) Republic of Singapore Navy ship formidable-class frigate RSS Supreme (73), left, and the guided missile destroyer USS Curtis Wilbur (DDG 54), right, perform maneuvers at sea behind USS Chung-Hoon (DDG 93) for Cooperation Afloat Readiness and Training (CARAT) Singapore 2011. CARAT 2011 is a series of bilateral exercises held annually in Southeast Asia to strengthen relationships and enhance force readiness. (U.S. Navy photo by Mass Communication Specialist 2nd Class Katerine Noll/ Released)

Photo credit Katerine Noll, US Pacific Command

By Edward Richter

The United States (US) is on a collision course with China over the South China Sea. US attempts to enforce international law are weakened by erosion of the status of international law caused by the US, Russia, and China over the last few decades.

The US was the first of these states to reject the binding power of international law when it rejected a ruling of the International Court of Justice (ICJ) in 1986. The US utilized its position as a permanent member of the United Nations (UN) Security Council to prevent the ICJ from penalizing it for supporting the Contra rebellion against the ruling Sandinista government in Nicaragua. This kicked off the long trend of the to cooperate with international legal bodies, flouting international norms, and refusing to recognize the jurisdiction of a number of international courts and tribunals. Notably, post-Nicaragua the US has refused to take part in the ICJ, the International Criminal Court, and denied ratifying the 1982 United Nations Convention on the Law of the Sea (UNCLOS). The latter choice now proves costly, as the US engages to enforce international law in the South China Sea. This attempt reveals an apparent double standard, as the US refuses to ratify the very convention it now seeks to enforce.

In 2013 Russia arrested a Greenpeace ship flagged for the Netherlands which was protesting a Russian oil platform in the Barents Sea. Following the US example of avoiding international courts, Russia refused to accept the Dutch request to release the vessel and crew under Article 292 of UNCLOS in exchange for a security bond. In response the Netherlands filed petitions with both the International Tribunal for the Law of the Sea (ITLOS) and the Permanent Court of Arbitration (PCA). Their action sought the ship’s release and money damages for violating UNCLOS, which both Russia and the Netherlands have signed. However, Russia rejected the tribunal’s jurisdiction and refused to appear before it when requested. The tribunal ruled that it did have jurisdiction and convicted Russia in absentia, but the country refused to pay damages or accept jurisdiction.

China has since followed suit in rejecting the authority of UNCLOS. This came after various Southeast Asian countries and the US complained about China’s expansive territorial claims and aggressive behavior in the South China Sea. The claims in question concern the now famous Nine-Dash Line, which encompasses much of the South China Sea. Whether China asserts sovereignty over the entire oceanic expanse or just the land within the area is unclear, as is how much of China’s actions are simple negotiating tactics, but its creation of artificial islands and harassment of Philippine and Vietnamese fisherman are a source of concern to other nations in the region. Due to these concerns, in 2013 the Philippines took action and brought a case against China before the PCA for maritime delimitation. The Philippines argued that China’s territorial claims to the South China Sea and construction of artificial islands violated the terms of the UNCLOS, which both China and the Philippines have signed. The tribunal determined that it did have jurisdiction over the case but China condemned and refused to recognize the ruling, resembling the practice of the US and Russia. Accordingly, when the tribunal struck down China’s claim to sovereignty over the entire South China Sea, the Chinese Foreign Ministry issued a statement rejecting the verdict, stating that it “does not accept or recognize it” and the award is “invalid and has no binding force.” Instead, China continued with the status quo while concluding a generous series of trade deals with the Philippines in seeking to exploit the growing gap between Filipino President Rodrigo Duterte and the US, thereby rendering the judgement of the tribunal entirely moot.

Following the US and Russia’s example, China has continued to flout international law with total impunity in the South China Sea. China’s position as a permanent member of the UN security council insulates it from foreign legal pressure, its economic might protects it from sanctions, and its military means ensure that no other sovereign can force it to abide by norms and rules of international law. This in turn prevents any amicable means of resolution in the South China Sea, as China simply ignores any UNCLOS ruling that does not favor it. Similarly, the US’s own track record of non-compliance with the rulings of international courts and refusal to ratify UNCLOS in the first place limits its ability to use international law to resolve the growing conflict. Accordingly, the failure of both parties to resolve this matter using international law may escalate the tensions between the US and China in the region.

This tension can be readily observed in the current undertakings of both the US and China. China continues building islands to serve as military bases from which it can project the military power needed to secure its claims and grant it de-facto control over the territory. The US meanwhile authorizes ever more aggressive Freedom of Navigation Exercises (FONOPs), wherein US navy vessels intentionally sail through the disputed waters as a means of signifying lack of Chinese control and sovereignty over the disputed region. This raises tensions in the region leading to boat collisions, harassment of naval vessels, and even Chinese seizure of a US drone. Thus, due to the breakdown in international law and the escalating tension in the region, two of the world’s mightiest nations find themselves on a collision course with no clear resolution to the growing crisis.