In recent weeks, China has announced—many times—that it will ignore the ruling of a panel convened by the Permanent Court of Arbitration in Philippines v. China .
The panel, Beijing says , is a “law-abusing tribunal,” the case is a “farce,” the award “amounts to nothing more than a piece of paper .” Said Chinese Foreign Ministry spokesman Lu Kang on the ruling, “We will not accept it or recognize it.”
The decision from The Hague is expected in a few hours.
The case will, among other things, determine the legal status of a handful of land features in the contested South China Sea. Yet China’s anticipatory repudiation has significance far beyond the matters to be determined by the panel.
In short, Beijing, with its declarations that it will ignore the court’s findings, looks set to put itself outside the international community.
That community now needs to think about what it will do to defend the systems of laws, resolutions, pacts and treaties that make up the world’s rules-based order. Nations, in general, should begin imposing costs on China for its renegade stance.
The Philippines, as a signatory to the UN Convention on the Law of the Sea, brought the action in 2013, just months after Beijing seized Scarborough Shoal. The shoal, 124 nautical miles from the main Philippine island of Luzon, guards the strategic Manila and Subic Bays and was long thought to be part of the Philippines.
In early 2012, Chinese vessels surrounded the shoal, as did those from the Philippines. American officials persuaded both sides to withdraw their craft, but only Manila complied, thereby permitting the Chinese to seize the feature. The United States, seeking to avoid confrontation, decided not to hold China accountable for its deception, essentially an act of aggression.
China was not satisfied with its prize, however. After seeing no opposition at Scarborough, it increased pressure on Second Thomas Shoal, off the coast of Palawan, also in the South China Sea. There, Manila in 1999 grounded a World War II–era landing ship, the Sierra Madre , and placed a small detachment of marines on board to mark sovereignty. The Chinese have been trying to prevent resupply of the troops.
The Philippines, which could not hope to compete with China ship for ship even in its own waters, chose lawfare. At first, Beijing did not grasp the significance of the case filed by the now-departed Aquino administration, but China eventually realized its importance and contested the jurisdiction of the Court, filing a position paper in December 2014.
Beijing, as was its right, did not accept arbitration delimiting sea boundaries when it ratified UNCLOS, as the UN sea convention is known, in 1996. Yet by ratification it implicitly accepted arbitration of other matters. Last October, the arbitration panel ruled it had jurisdiction on seven of the fifteen matters raised by Manila. Since then, Beijing withdrew and has not participated in the substantive phase of the case.
Most observers expect the Philippines will prevail on at least most of the matters to be decided. China’s positions on South China Sea issues, after all, are generally inconsistent with the UN convention, not to mention customary international law. Beijing’s “cow’s tongue”—the name informally given to about 85 percent of the South China Sea within either nine or ten dashes on official maps—includes features claimed by five other states and abuts other nations in locations far from Chinese shores.
Perhaps an adverse ruling will persuade the Chinese to negotiate its claims, as many hope, but that’s unlikely. Beijing in recent years has announced intransigent positions that allow no compromise, and in fact China has never settled a South China Sea claim except to issue a clarification that the Natuna Islands, but not their surrounding waters, belong to Indonesia.
As the controversial Hugh White of Australian National University notes, Beijing’s repudiation raises “the obvious question.” What happens, he asks, when China ignores the expected ruling?
The answer, most unfortunately, is nothing. Too many times in the past, the international community has allowed China to cherry-pick, to obtain the benefits of agreements it signed while ignoring the obligations it did not like. And rarely did other parties impose meaningful costs on Beijing for such blatant disregard of commitments. Because countries shied away from holding China accountable, Beijing this time feels it can ignore the UNCLOS ruling with impunity.
What’s the rationale for such meek behavior? Countries wanted to entice the Chinese into accepting global norms.
The thinking underpinning today’s policies was set decades ago. “Taking the long view, we simply cannot afford to leave China forever outside the family of nations, there to nurture its fantasies, cherish its hates, and threaten its neighbors,” Nixon famously wrote in Foreign Affairs in 1967.
He was correct then, but now China, inside the family, is still nurturing, cherishing and threatening. And at the same time it is taking down—from the inside now—the legal norms that the world took a century to put in place.