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South China Sea International Law Issues

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President Xi Jinping stated at a critical Chinese Communist Party meeting last November that “we must take a coordinated approach to strengthen the rule of law at home and in cases involving foreign parties, demanding measures to better safeguard national sovereignty, security, and development interests.” China’s evolving response to the July 2016 arbitral tribunal judgement on the South China Sea conflicts not only underlines the well-known limits of international law, but it also demonstrates Beijing’s organised approach to promoting international law in order to advance its sovereign interests.

China’s unwillingness to participate in the arbitral tribunal judgement process, as well as its outright rejection of the tribunal’s unanimous ruling, highlighted the international legal system’s shortcomings, particularly when it comes to restricting big countries. Two years following the tribunal’s decision, the Chinese Society of International Law released a lengthy paper titled “The South China Sea Arbitration Awards: A Critical Analysis” in the Chinese Journal of International Law. This essay supported the Chinese government’s stance on the South China Sea arbitral tribunal, stating that “the Tribunal’s many flaws deprive its awards of validity and threaten to undermine the international rule of law.”

On March 23, a closer look at Whitsun Reef and the fishing vessels that appear to be tethered near the reef. According to Asian maritime researcher Jay Batongbacal, they appear to be immobile at the time they were sighted, “and really not doing fishing operations.” (Image by: Maxar Technologies)

Only because China’s status as a permanent veto-wielding member of the United Nations Security Council, this route for enforcing the arbitral tribunal verdict is closed. Instead, China’s only punishments for rejecting the process and outcome of this exercise in international law have been political and moral in nature. Countries like Australia, Indonesia, Malaysia, the Philippines, Vietnam, and the United States have sent diplomatic notes to the United Nations emphasising the necessity of preserving the tribunal’s verdict.

China’s rejection of the ruling, combined with the lack of enforcement options, reaffirms the “almosts” of prominent international legal scholar Professor Louis Henkin, who believes that “almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.” More controversially, China’s rejection lends credence to legal theorist John Austin’s claim that “international law is more ethical than legal in nature, and from the nature of things can be nothing more than positive morality,” as well as Ian Hurd’s claim that states frequently use international law to justify their foreign policy for whatever reason.

The ongoing ASEAN-China Code of Conduct in the South China Sea negotiations are a key test arena for China’s offensive international law efforts and ASEAN member states’ responses to these Chinese efforts.

Yet, China’s rejection of the July 2016 judgement does not imply that international law is unimportant to China. Instead, Xi Jinping’s November remarks suggest that China is aiming to construct and mould international law in order to advance China’s national interests, rather than viewing it defensively as a set of rules that limit China’s behaviour. Rather than complying with current international maritime law, China is attempting to proactively modify maritime law in accordance with its contentious nine-dash line and “four-sha” claims in the South China Sea.

The ongoing ASEAN-China Code of Conduct negotiations in the South China Sea are a crucial test venue for China’s offensive international law activities and the responses of ASEAN member states to these Chinese attempts. All countries involved in the South China Sea issues, including China, have emphasised the significance of preserving the rule of law in disputed areas in order to avoid tensions and provocations and to ensure regional peace and security. According to the first article of the 2002 ASEAN-China Declaration on the Conduct of Parties in the South China Sea, “the parties reaffirm their commitment to the purposes and principles of the United Nations Charter, the 1982 UN Convention on the Law of the Sea, the Treaty of Amity and Cooperation in Southeast Asia, the Five Principles of Peaceful Coexistence, and other universally recognised principles of international law which shall serve as the basic norms governing the South China Sea.” The tenth and last item calls for “the eventual accomplishment” of a South China Sea code of conduct.

While international law alone is insufficient to limit states, particularly big powers such as China, states must reaffirm their commitment to universal international law for the sake of world order. Can the South China Sea disputes, as well as an ASEAN-China Code of Conduct in the South China Sea, underline the necessity and benefit of international law?

Info source – Fulcrum

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