Tensions are rising over the situation in the South China Sea. Some comparative perspective could lower the heat beneath this brewing crisis and enable the stakeholders to find a peaceful solution.

 

A panel of the UN Permanent Court of Arbitration appears poised to issue a decision on “maritime jurisdiction” over waters claimed by the Philippines and China. Based on my understanding of the facts, the process and the law, I expect that China’s claims will be repudiated, and the Philippines will prevail.

Such a decision, of course, does not mean the end to the story. No one expects China to pack up its man-made islands and go home. What will happen when a panel whose own jurisdiction has been denied by Beijing issues a ruling intended to bind China and cap its regional ambitions? Will the newest great power abide by the rule of international law? How will others respond? On the answer to these questions, the fate of nations rests.

 

US aircraft carriers start drills off the Philippines

The United States has been standing firmly beside – and sometimes in front of – its erstwhile colony, the Philippines. And as if the stakes were not already high enough, some prominent Americans (not President Barack Obama) have framed the dispute as one about whether a rising China is a nation that complies with international law or is a rogue state and presumably a potential threat to international peace and security more generally.

Let’s pause and take a deep breath. Compliance with international law is not a yes or no proposition, particularly for great powers. For example, the US has a highly mixed record about compliance with the dictates of international law, even as it has led its formation and its enforcement against others. Moreover, American scholars on the left and right frequently call into question the binding force of international law or the rule of law itself.

 

China says Philippines should copy Malaysia’s ‘amicable’ way of handling disputes in South China Sea

Mixed signals in the historical record and from theorists could reasonably give Beijing cause to wonder whether the US views international law merely as another instrument of statecraft to employ when useful for enhancing its power.

Reputable scholars on the left and right contend that international law reflects power but confers no normative legitimacy on its own. While mainstream American scholars accept customary and treaty-made international law as generally fair and binding, some do not. An important school of conservative scholars have long questioned and even undermined it, arguing that it is merely politics. The US, they say, should only comply with international law when convenient and not out of a sense of obligation. Many scholars on the left go even further, arguing that powerful people and states have to create law to enforce the status quo, to hold on to power and privilege.

With this range of views, it should be no surprise that US practice also varies. On one hand, the US has long led efforts to extend and enforce international law. On the other, it has not ratified many of the most important multilateral treaties, including the UN Convention on the Law of the Sea, under which the Philippines arbitration is brought. Moreover, presidents have not always let legal niceties obstruct the pursuit of policy objectives. Support for coups d’état run afoul of it, as do some wars, most tragically the 2003 invasion of Iraq.

 

Examples abound from the Caribbean Sea basin, where the US has long exercised a unique kind of hegemony. Nearly two centuries ago, president James Monroe announced that the US would use force to resist European advances in the Americas. Then, in the early 1900s, president Theodore Roosevelt asserted the right to intervene militarily in instances of bad behaviour by Latin American nations. Over the half century that followed, the US exercised this “right” many times, often overtly and sometimes covertly.

 

Legal challenge may delay court rulings on claims in the South China Sea

Finally, in the 1980s, Nicaragua brought a lawsuit against the US in the UN’s International Court of Justice, alleging that the CIA had mined its harbour and was funding paramilitary contra forces fighting to overturn Nicaragua’s leftist government. The US responded by withdrawing compulsory jurisdiction from the court, ignoring the requirement to give notice.

When the World Court found jurisdiction and ultimately ruled that the US was in breach of international law obligations not to use force to violate the sovereignty of Nicaragua or “interrupt peaceful maritime commerce”, the US blocked enforcement in the UN Security Council. The American ambassador infamously characterised the court as a “semi-legal, semi-juridical, semi-political body, which nations sometimes accept and sometimes don’t”. Ultimately, diplomatic negotiations gave some partial resolution to the claims.

We should not be surprised that, when a great power acts thus, the system weakens. Nor should failure of others to adhere to it shock us. Of course, international law should apply evenly against all, regardless of power. Common decency and the integrity of any legal regime demand it. Sometimes, however, great power adherence gives way to realpolitik. We may not like it, but let’s be honest about it. Then, maybe, we can start to negotiate in candour and respect for an honourable settlement to the conflicting claims in the South China Sea.

The stakes are so high that they demand a political solution. In this instance, the most important contribution law makes may be to bring the dispute into focus so that the stakeholders will invest sufficient attention to resolve it peacefully.

Mark R. Shulman is a teacher who writes frequently on history and law. He is currently teaching international law in Beijing