The South China Sea Crisis: Next Stop the UN Security Council?
All the signs indicate that China is preparing to reject the anticipated adverse judgment of the Permanent Court of Arbitration (PCA) on the South China Sea.
The Philippines is arguing that China is acting illegally in exploiting resources in the areas beyond the United Nations Convention on the Law of the Sea (UNCLOS) limits while forcibly preventing other nearby states like the Philippines from exploiting the resources in the same areas. If the PCA calls for China to abandon its nine-dash line claims and China rejects this finding, what options would then be available to the international community?
The PCA is a less powerful court than the International Court of Justice (ICJ). Unlike the ICJ, it does not have the equivalent of article 94 in the UN Charter which ominously states that:
If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.
Still, ignoring a finding of the PCA would still be significant, as it would amount to ignoring international law. As such, members of the UN Security Council could seek a UN Security Council discussion and resolution on the matter. They could interpret a rejection of the PCA finding as highly damaging to the credibility of UNCLOS, and the decades of diplomatic work that its successful negotiation entailed. They could classify the South China Sea issue as a dispute causing international friction, and hence within the UN Security Council’s mandate. While it is inevitable that China, and perhaps also Russia, would seek to prevent the UNSC from discussing the issue, what would be the likely position of the other Security Council members?
At least two of the Permanent Council members, the US and the UK, are taking a strong line. Despite the US not ratifying UNCLOS, President Barack Obama has strongly emphasised respecting the PCA’s findings. UK Prime Minister David Cameron has recently stated that he expects China to abide by the outcomes of the Court. France is more difficult to predict. It and other EU members have been calling for resolution of the South China Sea disputes through international law. At the same time, however, they have been unwilling to directly confront or denounce China’s more assertive actions, such as its declaration of an Air Defense Identification Zone (ADIZ) in the East China Sea in 2013.
Some of the non-permanent members may be willing to support a UN security council discussion of the case. Japan is speaking the language of the ‘rules-based global order’ in relation to the South China Sea. Malaysia is a claimant state in the region and appears to be increasingly concerned about the situation. However, it has also sought to maintain a ‘special bilateral relationship’ with China and to date has been unwilling to publicly confront China’s actions. It may not be willing to take a strong stand.
Australia, China and the South China Sea:
Australia has a strong interest in the resolution of disputes in the Asia Pacific through peaceful means and international law. Australia sees China’s nine-dash line as an unacceptable claim and its actions as inconsistent with the rules-based global order. While China is not an obstacle to world order overall, a degree of pushback is reasonable. Any PCA ruling casting doubt on China’s nine-dash line claim represents an important opportunity for Australia to develop, strengthen and diversify its approach. Part of this can be to increase diplomatic pressure in line with Rory Medcalf and Ashley Townsend’s recent call for a broader-based campaign that increases the reputational costs of China’s unilateralist posture.
There are two advantages of broadening and extending diplomatic pressure, especially by comparison with Freedom of Navigation operations (FONOPs). This approach does not risk sending ADF assets into disputed zones of the South China Sea. While China’s adoption of better collision avoidance protocols has reduced the risk, a recent unsafe intercept of a US spy plane shows that there is still potential for a repeat of the 2001 EP-3 incident. This approach also avoids the perception that Australia is militarizing the issue.