International Law Is Under Siege in the South China Sea

China’s seizure of a U.S. Navy unmanned underwater vehicle (UUV) in the South China Sea last month garnered widespread attention. The drone was an oceanographic research instrument, available for commercial purchase off the shelf and without any value for capture. Although Washington and Beijing seemed to resolve the issue within a few days, other commentators have noted that the incident fits into a pattern of Chinese behavior surrounding American transitions of power. Both the 2001 EP-3 collision and the 2009 harassment of USNS Impeccable occurred in the weeks immediately following American presidential inaugurations. Both actions seemed calculated to challenge the new presidents in an effort to gauge their reactions and convey a message of Chinese strength and determination early in the new leaders’ terms. This time, Beijing did not wait until the new president took office; the UUV seizure occurred more than a month before Donald Trump’s inauguration.

However, the incident also fits into another pattern: a creeping disregard among major military powers for international law. The tendency is not unique to China; Russia and the United States play an important part. While the United States first laid the legal framework, China and Russia have picked up the mantle in the last few years and taken the lead. Trump’s election may reinforce the three countries’ directions, signaling difficult years ahead for international legal forums.

The United States was the first to reject the jurisdiction of international legal tribunals in recent decades. In 1986, the U.S. refused to participate in legal proceedings over its support for the Contra rebellion against the ruling Sandinista government in Nicaragua. Although the International Court of Justice held in Nicaragua v. United States that the U.S. had violated Nicaragua’s sovereignty under customary international law, an American veto in the UN Security Council prevented Nicaragua from enforcing the judgment in any meaningful way. The case helped to shape American political skepticism toward international courts; the United States takes no part in the International Court of Justice or the International Criminal Court. It even refused to ratify the 1982 United Nations Convention on the Law of the Sea (UNCLOS), the comprehensive maritime law agreement that it spearheaded through the negotiation process. The trend, however, seemed to be a quirk of American exceptionalism. Over the next 30 years, the use of international tribunals continued to grow among other countries, particularly in the maritime arena.

UNCLOS included a binding dispute resolution system to encourage members to solve their issues without using intimidation or force against their neighbors. The system, which entered into force in the mid-1990s and offers a range of forums where parties may bring grievances against one another, has been moderately successful during its short history. Its tribunals have developed legal standards for flag states to retrieve impounded fishing and commercial vessels and has resolved a number of maritime border disputes. Today, eight cases remain pending in three separate forums, signaling that the process is attractive to a number of countries and provides a useful way to solve problems peacefully. However, recent events have exposed a major flaw in the system: great powers have discovered that they can ignore it with impunity.

Russia revived the American approach to international courts in 2013, when an obscure dispute arose over the arrest of a Greenpeace ship protesting a Russian oil platform in the Barents Sea. The ship, M/V Arctic Sunrise, was flagged in the Netherlands. Following the arrest, the government of the Netherlands filed a fairly routine request for Russia to release the vessel and crew in exchange for a security bond under Article 292 of UNCLOS. When Russia refused, the Netherlands resorted to the dispute resolution mechanisms under the Convention. It filed a series of petitions with both the International Tribunal for the Law of the Sea (ITLOS) and the Permanent Court of Arbitration (PCA), alleging that the Russians had violated the Convention and demanding both the ship’s return and money damages. The Russians disputed the tribunals’ jurisdiction, arguing that the matter was not covered under the Convention. Both courts disagreed, ruling that UNCLOS did apply and requesting that Russia appear in court. Instead, the Russians balked; they simply refused to show up. When the tribunals ruled against them in absentia, Russia refused to acknowledge the violation or pay damages. Although Moscow granted the crew immunity and eventually released the ship as a domestic matter, it never acknowledged the binding nature of the courts’ ruling.

The following year, Beijing followed the Russian example. After years of complaints by Southeast Asian countries and the United States over China’s excessive territorial claims and aggressive behavior in the South China Sea, the Philippines decided to invoke the law. Manila brought an arbitration case against China at the PCA under the Convention, alleging that China’s “nine-dash line” claim and environmentally destructive construction of artificial islands, among other activities, violated the agreement. When the Court determined that it had jurisdiction to hear the case under UNCLOS, China issued a series of aggressive press releases condemning the legal process and refusing to participate in any way. Although the Court later ruled strongly in favor of the Philippines, striking down China’s claim to sovereignty over the entire Sea and condemning its actions, China made no change to its behavior. By courting the loyalty of new Filipino President Rodrigo Duterte and pulling him out of the American orbit, Beijing prevented any subsequent efforts to enforce the judgment against it. It is as if the arbitration had never occurred.

In three years, China and Russia have managed to undermine the Convention’s primary method for resolving disputes that took two decades to build. Their actions have exposed the fundamental weakness of the process: if a state declines to appear in court, the tribunals have no power to make it change its behavior. When that state is a major military power like China or Russia, the legal judgments become irrelevant.

This pattern puts last month’s events into context. The Chinese seizure of the U.S. Navy drone, outside the area encompassed by its “nine-dash line” claim and within a few hundred yards of the American vessel controlling the drone, was clearly illegal under any understanding of maritime law. However, because the United States has refused to ratify the Convention and China has rejected its jurisdiction to resolve disputes, there is no available forum for a peaceful resolution. Taken together with Russia’s recent decision to pull out of the International Criminal Court agreement and the Trump administration’s skepticism toward international agreements and alliances, the next few years are likely to see an increase in the sort of saber-rattling and geopolitical instability that treaties and conventions aim to minimize. When three of the five permanent members of the United Nations Security Council pay no regard to the organization’s dispute resolution forums, less powerful countries will have little incentive to submit to the courts’ jurisdiction.

The situation is particularly dire for mid-sized countries like Japan and Vietnam, which are experiencing tensions with their larger and more powerful neighbor but which are unlikely to be pulled into China’s orbit willingly for historical and cultural reasons. Without the ability to appeal to law, they will be especially dependent on the United States for protection. With Trump in office, that help may not materialize. The absence of the rule of law at sea will provide incentives for nations to build up their armed forces and will increase the risk of a naval conflict. Asia’s Cauldron, as Robert Kaplan once termed the South China Sea, may soon begin to boil over.

Courtesy The Diplomat

Douglas Gates is a former U.S. Naval Officer. His assignments included service as personal aide to the Commander of the U.S. Seventh Fleet in East Asia and master instructor of political science at the U.S. Naval Academy at Annapolis. He is currently a J.D. Candidate at the University of Chicago Law School.