In a recent essay,
eminent political scientist Graham Allison downplays international criticism of
China’s blatant rejection of an unfavorable
legal verdict at The Hague. By pointing out the unlawful behavior of
status quo powers, his article gives the misleading impression that China’s
noncompliance to the international court’s decision is essentially normal.
“[N]one of the five permanent members of
the UN Security Council have ever accepted any international court’s ruling
when (in their view) it infringed their sovereignty or national security
interests,” Allison argues. “Thus, when China rejects the Court’s decision in
this case, it will be doing just what the other great powers have repeatedly
done for decades.”
Allison also fell short of mentioning some
key facts as far as great powers’ compliance with international arbitration is
concerned. For instance, it was not the Permanent Court of Arbitration (PCA)
that decided on the Philippines’ complaint against China, but an Arbitral Tribunal constituted under
Article 287, Annex VII of the United Nations Convention on the Law of the Sea
(UNCLOS). The PCA only serves as a registry.
Such seemingly minute legal facts inform the nature and implications of the
Philippines’ landmark lawfare against China. Crucially, Allison didn’t mention
that there have been encouraging instances whereby major powers rejected
arbitration, and subsequently an unfavorable verdict, but still ended up
complying with it anyway. After all, even for great powers, which aspire to
leadership and seek respect and predictability in the international system,
ignoring international arbitration carries immense costs.
More
Than Meets the Eye
In an authoritative article for The
European Journal of International Law, legal scholar Aloysius P. Llamzon
(2008)
shows that “through complex mechanisms of authority signal and the
political inertia induced by [international court] decisions, almost all of the
[International Court of Justice] decisions have achieved substantial, albeit
imperfect, compliance.”
Keep in mind: the International Court of
Justice (ICJ) oversees extremely delicate, if not seemingly intractable, cases
such as territorial sovereignty. Take for example,
the 1986 Nicaragua vs. the United States case
filed before the International Court of Justice. At first, America took a
hardline position, arrogantly refusing to participate in the arbitration
proceedings at all. Similar to China, it also dismissed the unfavorable
verdict. Nicaragua, however, relentlessly stepped up international pressure on
America by rallying developing world support behind it. The U.S. refused to pay
$370.2 million in damages, but after years of successful Nicaragua-led
diplomatic pressure, Washington ended up compensating its Latin American
neighbor by offering an even larger development aid package during
the Victoria Chamorro administration.
True, the United States continues to
alienate allies and undermine its moral authority by failing to ratify UNCLOS.
And it is high time for belligerent elements
within the U.S. Senate to change course. But the U.S. government, as a
signatory, has actually complied with the relevant provisions of UNCLOS as a
matter of customary international law.
This was more than evident when Washington
allowed Chinese warships to pass through America’s two-hundred-nautical-mile
Exclusive Economic Zone (EEZ) in the Pacific, while magnanimously
respecting Chinese warships’ right to innocent passage within America’s territorial
sea in the shores of Alaska.
In contrast, China, which has ratified
UNCLOS, has consistently refused to reciprocate America’s operational
observance of prevailing international law, placing restrictions on the
movement of foreign military assets well beyond its territorial sea and
contiguous zone. Chinese harassment of America’s lawful reconnaissance missions and warships operating in international waters
has increased over the years.
China has also rattled most of its
neighbors by claiming “historic rights” over adjacent waters such
as the South China Sea. In fact, as the Hague verdict makes clear, China has
violated the rights of countries such as the Philippines to exploit natural
resources within their EEZ. Its massive reclamation activities, almost two
dozen times more than that of all other claimant countries combined, has also
caused severe ecological damage, the tribunal at The Hague ruled.
Light at the End of the Tunnel
One factor that explains broad compliance with international arbitration, even
among great powers, is the concern over reputational cost and long-term
consequences of ignoring international law, which is crucial to securing a
rule-based global order. This may explain why even an increasingly aggressive
Russia, which recently occupied Crimea and has adopted a belligerent position
in its “near abroad,” also eventually complied, albeit informally, with the
verdict of an arbitration proceeding, which it rejected from the onset.
In the “Arctic Sunrise” case, the Kingdom of
Netherlands successfully filed a case at the International Tribunal on the Law
of the Sea (ITLOS), complaining that Russia unlawfully placed environmental
activists aboard a Greenpeace vessel under detention. Eventually, the Russian legislature
approved the release of the crew and the vessel, despite Moscow’s official
rejection of the verdict. In short, there was informal compliance.
In South Asia, regional powerhouse India
also initially adopted an uncompromising
position vis-à-vis its maritime borders with Bangladesh, which took the case to
international court despite New Delhi’s opposition. The Permanent Court of
Arbitration (PCA) favored Bangladesh in its final award at the Bay of Bengal,
and India complied. The key to ensuring compliance
is concerted international pressure, especially when one speaks of a hubristic
status quo power (America during Cold War) or assertive revisionist power
(China).
This is precisely why it is paramount for
China’s neighbors, including Japan, South Korea, India, Australia and the
Association of Southeast Asian Nations (ASEAN) to consistently push for
compliance and encourage China to align its claims with prevailing
international law, not obscurely concocted doctrines purportedly based on
“historic rights,” lousy cartography and premodern historiography.
Based on the Hague verdict, concerned
naval powers, through Freedom of Navigation Operations can
utilize the arbitration verdict to challenge China’s baseless sovereignty
claims in the Spratlys over low-tide-elevations, which were artificially transformed
into islands. If China continues to refuse compliance, the Philippines (and
other claimant states) can ask the International Seabed Authority, constituted
under the UNCLOS, to revoke China’s license to extract seabed resources in
international waters.
Since the Hague verdict clearly states
that there are no overlapping EEZs between China and the Philippines, Manila also has the option of filing additional
legal complaints if Chinese energy companies unilaterally drill within its EEZ.
Not to mention, Vietnam, Malaysia, Japan and Indonesia can also file similar
compulsory arbitration cases against China. In short, there will be huge costs
if China doesn’t recalibrate its maritime posturing.
So far, it seems that China has successfully tamed its smaller and divided
neighbors in Southeast Asia, including the Philippines, but major Asia-Pacific
powers such as Japan, South Korea, Australia, India and America have been more
forthcoming in their call for compliance with international law and legally
binding court verdicts. As the supposed anchor of the Asia-Pacific order, the
United States shouldn’t only ratify the UNCLOS, to gain moral ascendancy, but
also lead a coalition of law-abiding countries to ensure China operates within
the boundaries of prevailing international law. No less than the future of the Asian
and the broader global liberal order are at stake.
No comments:
Post a Comment