China is trying to rewrite international law in the South China Sea.
At a key Chinese Communist Party gathering last November, President Xi Jinping asserted that “we must take a coordinated approach to promote the rule of law at home and in matters involving foreign parties, demanding efforts to better safeguard national sovereignty, security and development interests.” China’s evolving reaction to the July 2016 arbitral tribunal ruling on the South China Sea disputes not only reaffirms the well-known limits of international law, but it also highlights China’s coordinated approach to promote international law to advance its sovereign interests.
China’s refusal to participate in the arbitral tribunal ruling process and its outright rejection of the tribunal’s unanimous ruling underlined in bold the weakness of international law, particularly when it comes to constraining major powers. In 2018, two years after the tribunal ruling, the Chinese Journal of International law published a long article entitled “The South China Sea Arbitration Awards: A Critical Study” written by the Chinese Society of International Law. This article backed up Chinese government positions concerning the South China Sea arbitral tribunal, concluding that “the Tribunal’s many errors deprive its awards of validity and threaten to undermine the international rule of law.”
China’s status as a permanent veto-wielding member of the United Nations Security Council means that this avenue to enforce the arbitral tribunal ruling is a dead end. Instead, the only sanctions that China has faced so far for its rejection of the process and outcome of this exercise in international law are political and moral in nature. Recently, countries such as Australia, Indonesia, Malaysia, the Philippines, Vietnam and the United States submitted a series of diplomatic notes to the United Nations invoking the importance of upholding the tribunal ruling.
The ongoing ASEAN-China Code of Conduct in the South China Sea negotiations are a key test arena for China’s offensive international law efforts and ASEAN member states’ responses to these Chinese efforts.
China’s rejection of the ruling and the lack of enforcement possibilities reaffirm the “almosts” in the view of the prominent international legal scholar Professor Louis Henkin that, “Almost all nations observe almost all principles of international law and almost all of their obligations almost all the time.” More controversially, China’s rejection adds weight to the legal theorist John Austin’s contention that, “International law is more ethical than legal in its nature, and from the nature of things can be nothing more than positive morality”, and Ian Hurd’s that international law is often used by states to justify their foreign policy for whatever reason.
China’s rejection of the July 2016 ruling though does not mean that international law is not important at all for China. Instead, Xi Jinping’s November comments show that China is seeking to frame and shape international law to promote China’s national interest instead of defensively regarding it as a set of rules that limits China’s behaviour. Rather than complying with the existing international law of the sea, China is trying to proactively reshape the law of the sea in line with its controversial nine-dash line and “four-sha” claims in the South China Sea.
The ongoing ASEAN-China Code of Conduct in the South China Sea negotiations is a key test arena for China’s offensive international law efforts and ASEAN member states’ responses to these Chinese efforts. All parties to the South China Sea disputes, including China, have reiterated the importance of upholding the rule of law in disputed areas to prevent tensions and provocations, and to maintain peace and security in the region. The first article of the 2002 ASEAN-China Declaration on the Conduct of Parties in the South China Sea states that “The parties reaffirm their commitment to the purposes and principles of the Charter of the United Nations, the 1982 UN Convention on the Law of the Sea, the Treaty of Amity and Cooperation in Southeast Asia, the Five Principles of Peaceful Coexistence, and other universally recognized principles of international law which shall serve as the basic norms governing state-to-state relations”. The tenth and last article calls for “the eventual attainment “ of a code of conduct in the South China Sea.
While international law itself is not enough to constrain states and particularly major powers like China, it important for states to reaffirm their commitment to universal international law for the sake of international order. The South China Sea disputes have exposed the limits of international law, can they and an ASEAN-China Code of Conduct in the South China Sea reaffirm its necessity and benefit as well?