When considering the implications of the South China Sea arbitral award, it is crucial to consider the political context in which China views the decision. The Tribunal stated that the award’s purpose is to facilitate negotiation between the disputants by clarifying their respective rights and obligations, averring that China’s actions have stemmed from a misunderstanding of its rights under the United Nations Convention on the Law of the Sea (UNCLOS).
Unfortunately, this likely misreads how China’s leaders view the matter. By all indications, they see at stake fundamental issues of political order, which trump the legal system within which the tribunal operates.
Upholding the historic basis of China’s rights in the South China Sea is a priority for the Chinese Communist Party because of their place in the ‘century of humiliation’ narrative, which is now a key legitimizing discourse for Party rule. It is not a coincidence that the nine-dash-line map was produced by the same (pre-Communist) government that negotiated the end of China’s ‘unequal treaties’. It symbolized a reassertion of Chinese sovereignty against an international system that had been forcibly imposed on East Asia by the West. It also reflected a unilateral concept of historical Chinese authority in the region, with no attempt made to reconcile Western-derived rules of sovereign acquisition with Imperial China’s relationship to overseas territories.
A key aspect of the ‘century of humiliation’ narrative is that China historically exercised legitimate authority over far-flung lands, which was compromised by foreign aggression. This understanding of East Asian history has been so widely internalized within China that the verb commonly used by netizens to describe infringements on China’s rights in the South China Sea (瓜分) is the same one used in history textbooks to describe the nation’s 19th century ‘carving up’ by foreigners.
Surveys indicate that many Chinese citizens genuinely believe in China’s historic rights to the South China Sea and condemn the government for not enforcing them. And as Julian Ku has noted, the near unanimous support of Chinese legal scholars for the official stance seems to reflect something more than political expedience.
The Tribunal’s finding that there is no historical evidence of exclusive sovereign control by China over the South China Sea directly challenges this narrative. Faced with incongruence between the standards of modern international law and pre-Westphalian Asian political arrangements, China’s only option is to assert that the former must accommodate the latter. While these arguments are not new in Chinese non-government commentary, the arbitration seems to have pushed Chinese officialdom towards embracing them explicitly. A 3 July article published in the Party journal Qiushi by China’s vice-minister for foreign affairs castigates the judges’ lack of schooling in the ‘international legal order of ancient East Asia’.
Likewise, the Tribunal’s ruling that in any case ‘historic rights’ are extinguished where incompatible with UNCLOS has solved this issue in a legal sense, but politically it has made it harder for Beijing to trim its claims while ‘saving face’. While the treatment of ‘historic rights’ in China’s official statements responding to the award can be interpreted as doing just this, it can also be read as elevating them to the status of a legal category, in defiance of the Tribunal.
An 18 July article in the PLA Daily — which was attributed to authors at the Central Party School — supports this reading. It cites ‘historic rights’ as the basis for claiming ocean space between the South China Sea archipelagos as internal waters and for asserting traditional fishing rights throughout other countries’ exclusive economic zones, contradicting the award on both points.
This overriding domestic political logic is amplified by a cynicism towards the process of international law and the assertion that the international system is based on observing common rules. China’s leaders likely do not view the international order as rules-based to start with. They see it as anarchical and rigged in favor of the United States and its allies, who are trying to undermine China’s ideological and territorial integrity.
From this viewpoint, it is not hard to see the arbitration as a US-devised and Japanese-enabled political weapon. Asserting China’s claims in defiance of the award is part of the wider struggle against Western ‘discourse hegemony’, just as the artificial islands are needed to undermine the perceived US-led siege line along China’s maritime frontier.
China’s response to the arbitration process should be seen in the context of the Party’s renewed commitment to both extirpating foreign modes of thought within China’s borders and contesting ideological dominance on the global stage. Asserting its interpretation of international law is just another means for Beijing to shape the international normative framework in more favorable directions. Even critics of China’s instrumental use of law in the South China Sea recognize that ‘it is a policy trajectory … that will guide the evolution of international maritime law to accommodate the rising powers of the world’.
Leaving aside considerations specific to China, the record of international tribunal decisions gives cause to doubt whether the award will be enough to modify Beijing’s behavior. Great powers habitually don’t comply with rulings that contravene their interests where these interests are important enough to justify weathering reputational damage. To use an oft-cited example, the International Court of Justice’s Nicaragua decision may have had some positive effects, but it has not stopped great powers threatening force or using proxy warfare where sovereign claims are at stake.
Reading the award, one gets the sense that the five judges — who have dedicated their careers to the law of the sea — were determined to assert international law as an institution that has independent causal effect. But China’s responses in the fortnight since the decision suggest that this will only eventuate if other states are prepared to impose tangible costs on Beijing for non-compliance.
John Lee is a Visiting Fellow at the Mercator Institute for China Studies.
This first appeared in East Asia Forum here.
Image: Creative Commons.