Law of the Sea: China, the EU, and the global order

Law of the Sea: China, the EU, and the global order

Commentary



The stronger China gets, the more important is the question of whether it will be a world power that wields its strength responsibly. The recent ruling against China by a UN arbitration tribunal brings this question into sharp focus.

The stronger China gets, the more important is the question of whether it will be a world power that wields its strength responsibly. Yesterday's ruling against China by a United Nations arbitration tribunal brings this question into sharp focus. Beijing boycotted the proceedings, and has rejected the decision. By chance, the EU-China summit began the day that the judgement was handed down. It now falls to EU leaders to impress upon their Chinese counterparts that it is crucial to the future of the global order that Beijing supports the norms that it has benefited from for decades.

Two key issues are at stake. The first is the problem the Philippines brought before the tribunal – the Permanent Court of Arbitration – under the UN Convention on the Law of the Sea (UNCLOS) in January 2013. The gist of what the Philippines asked the court is: What counts as an island?

China initially claimed almost 90 percent of the South China Sea (bounded by the so-called Nine Dash Line), while some of the area’s land features are claimed by Vietnam, the Philippines, Malaysia, and Brunei. China qualified its claim in recent months to refer only to the land features and their surrounding Exclusive Economic Zones – amounting to an even larger area. The land features in the Sea, though usually called “islands”, in fact amount to no more than rocks and reefs, many of them partly submerged. Some have been developed by claimants. China has pursued these activities at great speed during the past two years and has already reclaimed land on 17 reefs, deploying missiles there – beginning to militarise the South China Sea.

China has pursued these activities at great speed during the past two years and has already reclaimed land on 17 reefs, deploying missiles there – beginning to militarise the South China Sea.

However, under the UN Law of the Sea, land features that are not islands have no right to an economic zone, nor a continental shelf. The court now has ruled that none of the land features in the Spratly Archipelago and areas close to the Philippines in the South China Sea are islands, and that China has breached its obligations under various articles of UNCLOS. It also ruled that China as a signatory to UNCLOS is bound by its judgement, despite boycotting the proceedings. The ruling means that all claims made by China and other littoral states concerning the southern part of the South China Sea have fallen apart (the court had not been asked to consider the northern part or the Parcel Archipelago). Now, countries can only claim possession of waters according to other criteria under the Law of the Sea, such as the fact that they cover a continental shelf.

Here, the court has opened a space for compromise – if the claimants choose to take it. The court has no authority except as an arbitrator, and depends on the will of the claimants to seek a peaceful solution.

China’s rejection of the ruling indicates that, for the time being at least, it will continue its current policy. President Xi Jinping said after the ruling that "China's territorial sovereignty and maritime interests in the South China Sea" would not be affected, while China's Foreign Ministry said on its website that "The award is null and void and has no binding force." But China’s “long-term struggle to fulfil its wishes in the South China Sea”, as Shi Yinhong of the People’s University in Beijing puts it, is only the backdrop to a much more important question about China’s integration into the global order.

The People’s Republic of China became a member of the UN in 1971 – and a privileged one with a permanent seat on the Security Council. It signed up to most of the various UN agreements, and in 1996 became a signatory to the Law of the Sea. China has consistently played a role in UN decision-making and has contributed to activities such as peacekeeping operations. It has benefited from the international system, from development support to World Health Organization (WHO) aid, all the way to the liberal world trade system on which its economic rise has been built. Nevertheless, this international order has in recent years come under increasing attack from the Chinese, who complain that it is rigged against them. As Henry Kissinger puts it, “The current world order was built largely without Chinese participation, and hence China sometimes feels less bound than others by its rules”.

 As Henry Kissinger puts it, “The current world order was built largely without Chinese participation, and hence China sometimes feels less bound than others by its rules”.

This kind of scrutiny of a country’s obligations is natural as the country increases in strength and is tempted to bend the rules – and there are many examples of other great powers doing exactly that. But the court ruling is another matter. China does not dispute the tribunal’s legitimacy. It has stated its wish to resolve the South China Sea disputes “respecting international law”, as Prime Minister Li Keqiang put it in September 2013. For China to simply refuse to accept the ruling would therefore be an appeal to the principle of “might makes right”, in the words of US Assistant Secretary of State Daniel Russel, instead of the rule of law. It sows the seeds for a direct confrontation with China’s neighbours, their security guarantor – the US – and the entire global community. Pitting itself against the rules of the international order cannot be in China’s interest.

Fortunately, EU leaders were in Beijing on 12 July, the day the award was handed down, for the EU-China summit. Brexit or not, EU leaders should make clear to their Chinese interlocutors how much both sides share an interest in a functioning normative international system. Hopefully, they will have tried to convince China to respect the court’s ruling, and to take the path the ruling has opened for a compromise solution to the South China Sea dispute. European Council President Donald Tusk has intimated as much, saying “the rule-based international order is in our common interest, and both China and the EU have to protect it, as this is in our people’s best interests.”

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