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China’s ‘might makes right’ strategy vs. international law

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China has been expanding its frontiers ever since it came under communist rule in 1949. Yet no country dared to haul it before an international tribunal till the Philippines in 2013 invoked the dispute-settlement mechanism of the United Nations Convention on the Law of the Sea (UNCLOS), setting in motion the arbitration proceedings that this week resulted in the rebuke of China’s claims in the South China Sea.

The trigger for Manila approaching the International Tribunal for the Law of the Sea (ITLOS) was China’s capture in 2012 of Scarborough Shoal, located close to the Philippines but hundreds of miles from China’s coast. ITLOS then set up a five-member tribunal under The Hague-based Permanent Court of Arbitration (PCA) to hear the case. Beijing tried unsuccessfully to persuade the tribunal that it had no jurisdiction to hear the case. Last October, the tribunal said that it was “properly constituted” under UNCLOS, that the Philippines was within its rights in filing the case, and that China’s nonparticipation in the proceedings was immaterial.

Now in its final verdict delivered unanimously, the tribunal has dismissed Beijing’s claim that it has historic rights to much of the South China Sea and ruled that China was in violation of international law on multiple counts, including damaging the marine environment through its island-building spree and interfering with the rights of others. The panel effectively declared as illegitimate China’s South China Sea boundary (the so-called nine-dash line).

It also held that China’s strategy of creating artificial islands and claiming sovereignty over them and their surrounding waters had no legal basis. In less than three years, China has built seven islands and militarized several of them in an attempt to annex a strategically crucial corridor through which half of the world’s annual merchant fleet tonnage passes.

In the absence of a mechanism to enforce the ruling, Beijing, however, was quick to pour scorn on the verdict and declare that it would ignore a legally binding ruling. China’s disdain for the ruling shows that international law matters to it only when it can serve its own interests. Otherwise, international rules are bendable and expendable.

To be sure, China has never pretended that it believes in a rules-order order. This was apparent from its aggressive steps to enforce its sovereignty claims in the South China Sea — actions that the tribunal has now ruled violate international law.

Indeed, Beijing has sought to rely on a multinational proclamation that it has flagrantly breached — the Declaration on the Conduct of Parties in the South China Sea, which it signed with the 10 ASEAN states in 2002. While violating the declaration’s central commitment — to resolve “disputes by peaceful means, without resorting to the threat or use of force” — Beijing has cited the declaration’s reference to the use of “friendly consultations and negotiations by sovereign states directly concerned” to insist that any dispute can only be addressed bilaterally and not through international arbitration or adjudication.

Dispute settlement by peaceful means is essential to building harmonious interstate relations. However, Beijing’s dismissal of the tribunal’s ruling is in keeping with its broader opposition to settling disputes with its neighbors — from Japan and South Korea to India and Bhutan — by means of international mediation, arbitration or adjudication.

Instead, China’s creeping aggression in Asia reflects a “might is right” strategy that aims to extend Chinese control to strategic areas and resources by altering the status quo. The strategy focuses on a steady progression of steps to create new facts on the ground by confounding and outwitting neighbors while avoiding a confrontation with the United States, which sees itself as a geographically nonresident power in Asia.

Through its furious reaction to the tribunal’s ruling, China is saying that it should be the judge in its own cause. More ominously, it is signaling its determination to stay on the course of unilateralism and settling matters militarily in the resource-rich South China Sea, which is larger than the Mediterranean and carries $5 trillion in annual trade.

The example Beijing is setting will not only be damaging to the law of the sea but is also likely to stoke serious tensions and insecurities in Asia, the world’s economic locomotive.

The South China Sea — a global trade and maritime hub — is critical to the contest for influence in the larger Indo-Pacific region extending from the Arabia Sea to Australia and Canada. As Beijing consolidates its power in the South China Sea by completing ports and airstrips and building up military assets on man-made islands, the impact of its actions will extend beyond reducing ASEAN states to a tributary status and bringing resources under its control: such consolidation will have a significant bearing on the wider geopolitics, balance of power and maritime order.

Like-minded states thus must work closely together to defend the law of the sea by ensuring that defiant unilateralism is not cost-free. Unless China is made to realize that its future lies in cooperation and not confrontation, a systemic risk to Asian stability and prosperity is bound to arise, with far-reaching implications for the world.

Brahma Chellaney is a geostrategist.