Commentary / World

Sea treaty mutiny simmers

by Mark J. Valencia

Special To The Japan Times

Recently China has been under withering political and legal attack for allegedly violating the 1982 U.N. Convention on the Law of the Sea. What are the consequences if China simply gets “fed up” with the criticism and withdraws from the treaty?

China ratified the treaty in 1996. But rival claimants in the South China Sea and their supporters have alleged that China’s nine-dashed line claim there is not compatible with the treaty.

Now the Philippines with tacit U.S. support has filed a complaint against China with the International Tribunal for the Law of the Sea established by the Convention. However, China has refused to participate in the case and is taking a propaganda pounding for not doing so.

The U.S. Senate Foreign Relations Committee has just approved a resolution condemning China’s behavior in Asian seas — behavior that China sees as defending its claims.

Meanwhile, rival claimants as well as the United States and other Western powers have criticized some of China’s actions in its 200-nautical mile Exclusive Economic Zone as violating the freedom of navigation. They and Japan say China’s drawing of enclosing baselines around the disputed Senkaku Islands (called the Diaoyu Islands in China) in the East China Sea is illegal.

China used to argue the “unequal treaty” doctrine regarding boundaries that were concluded with colonial or imperial powers. It is thus not surprising that its leaders occasionally revert to rhetoric reminiscent of that era proclaiming that this or that area is divine and sacred and has belonged to China since “time immemorial.”

Indeed some of China’s political analysts and particularly military officers seem to be questioning why China ratified the Law of the Sea Treaty in the first place. Part of the explanation is that China assumed — obviously incorrectly — that the Law of the Sea dispute settlement mechanism could be avoided by direct negotiations to settle maritime jurisdictional disputes.

China’s most significant and increasingly vocal critic is the U.S. This is of course ironic since the U.S. has not joined some 164 other countries including its allies in ratifying the treaty. Yet it persists in interpreting its provisions in its favor. Unwittingly the U.S. may be both showing China a way out of its dilemma and stimulating it to take it.

China could “denounce” (withdraw from) the treaty. The “denunciation” would only take effect one year after the notification and China would still be subject to the decision of the tribunal in the case the Philippines has brought against it.

There would be serious political costs for such an action. Withdrawing from the convention would result in a wave of international opprobrium and a continuous propaganda coup for anti-China factions in the West — and Asia. It would also create fear and even instability in the region and probably draw many Asian states closer to the U.S. as a “balancer” to China.

Moreover, China would lose the major propaganda advantage it enjoys in Law of the Sea issues over the U.S. — that the U.S. did not ratify the convention and therefore has no legitimacy or credibility to cite or interpret its provisions in its favor.

However, there are advantages to such an action as well. China would then be legally free to “pick and choose” the convention’s provisions and interpret them in its favor — just as the U.S. does now. Moreover, China could simply refuse to abide by the tribunal’s decision and shrug off the political fallout.

In doing so, it would be following the precedent of the U.S. in the 1984 case that Nicaragua brought against it to the International Court of Justice.

The ICJ held that the U.S. had violated international law by supporting the Contras in their rebellion against the Nicaraguan government and by mining Nicaragua’s harbors. The U.S. refused to participate in the proceedings after the court rejected its argument that the ICJ lacked jurisdiction to hear the case.

The U.S. later blocked enforcement of the judgment by the U.N. Security Council and thereby prevented Nicaragua from obtaining any actual compensation.

Of course, China’s withdrawal from the convention would weaken the reputation and authority of the tribunal and international law in general. It would also give notice that China is not to be trifled with — that it will not “be taken advantage” of by small Asian countries — some still influenced by their former colonial masters.

Unfortunately there is a long political history of world powers using, not complying with, or making new international law to further and protect their interests. Prime among these has been the U.S. Its refusal to join the 1982 Law of the Sea Treaty and the International Criminal Court, its withdrawal from the ICJ case, and its “invasions,” cyber and drone attacks, and interference in the internal affairs of other countries have certainly set a bad precedent.

The U.S. and its Asian allies need to be careful lest they push China into actually being what they fear most — a rogue country that uses might rather than right in its international relations.

Let us hope that China considers the costs of withdrawing from the treaty greater than the benefits.

Mark J. Valencia is adjunct research fellow at the China National Institute for South China Sea Studies

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