Exclusive: Historical Perspective on the South China Sea Arbitration Case

The impending verdict date for Philippines v. China, a case that has gone before the Permanent Court of Arbitration (PCA) in Hague, has got the entire world waiting in anticipation. On July 12th, the PCA will decide if China’s recent actions in the South China Sea are against international law as decided by the United Nations Convention on the Law of the Sea (UNCLOS).  The creation of the “nine-dash line”, demarcating sovereignty over the region, as well China’s occupation of islands claimed by the Philippines, are the two major potential violations of UNCLOS. China refused to take part in this case, as it does not acknowledge the truth of the Philippines’ claims or the legitimacy of the Permanent Court of Arbitration to arbitrate these matters (Asia Maritime Transparency Initiative).  

China has repeatedly denied the legitimacy of these legal proceedings, whereas the United States has called on China to conform to international law. Yet for all its urging for international jurisdiction over the case, the United States has refused to ratify the United Nations Conventions on the Law of the Sea (UNCLOS). The ratification measure has repeatedly failed to gain the requisite votes in the U.S. Senate, opposed by those who believe that it will cede U.S. sovereignty to international organizations. It is also worth noting that the U.S. is not a member state of the International Criminal Court (ICC), which holds jurisdiction over cases of serious individual criminality such as genocide and war crimes. It was one of the seven nations to vote against the Rome Statute that established the ICC in 1988 (alongside China). U.S. opposition has cited that joining the ICC would lead to unfair political prosecutions against its soldiers and the dilution of its sovereignty.

It is expected that if the court decides in favor of the Philippines, the United States will call on China to abide by the decision and abide by international law. Chinese government officials have condemned the United States’ role in this arbitration and in the South China Sea in general. This culminated in an article published on July 5th by Xinhua, the official Chinese Communist Party news organization, stating that the South China Sea was peaceful until the United States “poked its nose into it,” and that instead of its “Rebalance to the Asia-Pacific Strategy,” the United States needs to “rebalance its attitude” (Forbes).  

Yet China is not the only power that has objected to international bodies interfering in its international activities. In fact, episodes in the United States’ and Russia’s histories strongly resembles the current situation between the Philippines and China. To better understand the present, and how China might react to the PCA’s ruling, we must closely inspect the United State’s history with the International Court of Justice (ICJ). Unlike the PCA, which is an arbitration tribunal that handles relatively few cases and operates usually behind closed doors, the ICJ is far larger and public organization that operates as a courtroom. The ICJ passes down judgement through elected sitting judges unlike the PCA, which the arbitrators are selected from a pool of potential previously nominated candidates.

In 1986, the United States rejected the authority of the ICJ in denying the charges levied against it by the Nicaraguan government.  Nicaragua asserted that “The United States of America is using military force against Nicaragua and intervening in Nicaragua’s internal affairs in violation of Nicaragua’s sovereignty, territorial integrity, and political independence and of the most fundamental and universally accepted principles of international law.” Reports came to show that the United States was providing covert training, funding and supplies to the Contra guerrilla group – as well as mining Nicaraguan harbors. The mining would come to stand as an especially outrageous (and disastrous) breach of international law – an operative would later describe it as a “fiasco” – achieving none of its intended objectives and building public fury over the U.S.’s engagement.

The United States argued that its actions were justified as collective self-defense with El Salvador, Costa Rica and Honduras, which it asserted was under attack by Nicaraguan-supported rebel forces. The ICJ rejected this claim, finding the U.S. guilty on 15 counts of breaching international law and a 1956 treaty of friendship between the two countries. These breaches included indirect support of rebel forces, direct attacks on Nicaraguan infrastructure, and illegal overflights over Nicaraguan territory, distribution of CIA manuals on guerilla warfare and the mining of the harbors. It ordered the U.S. to pay reparations to the Nicaraguan government, to be negotiated outside of court. The U.S., responded by refusing to acknowledge the verdict, claiming that the “body was ‘not equipped to judge complex international military issues.”1 It had argued during the ongoing trial that the Court had no jurisdiction in the first place over matters of ongoing armed conflicts. The U.S. had previously always recognized the jurisdiction of the ICJ, including a case in 1980 concerning the Iran Hostage Crisis. Then, the court had ruled in favor of the United States, and Iran had refused to acknowledge the verdict. (what is the relationship between ICJ and PCA; what about U.S. refusal to be a member of the ICC—International Criminal Court?)

While the Court’s decision was a serious blow to the reputation of the United States, the ICJ lacked the necessary powers to enforce its judgements. The ICJ, being a body of the United Nations, could have turned to the Security Council to seek out sanctions against the U.S. for its failure to comply. The problem lay in the fact that as a permanent member of the Security Council, the U.S. could have simply used its veto to block such a measure. Despite seeking an estimated reparations value of $17 billion, the U.S. resisted the international pressure to pay and Nicaragua eventually dropped its claim in 1991.2  

The difficulty of enforcing the verdicts in international courts was once again demonstrated recently in 2013. Russian authorities seized the activist Greenpeace ship Arctic Sunrise and detained its crew and activists on board. As the flag state for the ship, the Netherlands submitted a formal case to the International Tribune for the Law of the Sea (ITLOS), a UN tribunal, stating that the ship was outside of Russian territorial waters and hence Russian sovereign rights and jurisdiction. The court ruled that Russia had violated international law for failing to respect the freedom of navigation and ordered for the immediate release of the detainees. Russia responded that the court had no jurisdiction over the case, although it proceeded to release the detainees on bail later that month. In 2015, the Permanent Court of Arbitration (PCA) ruled in retrospect that Russia had acted in violation of the UN Convention on the Law of the Sea. Russia, a member state of the PCA, did not take part in the arbitration and again refused to recognize its authority and verdict over the incident.  

We see that there is a precedent for Philippines v. China, and for the larger power ignoring the authority of international courts. If the court rules in favor of the Philippines, as is expected, what can we expect the reactions of each country to be? While it is impossible to know for sure, it is expected that China will ignore the ruling of the court if it rules on the side of the Philippines. If this happens, the newly elected president of the Philippines, Rodrigo Duterte, says that he is willing to negotiate with China. If the China and the Philippines are able to reach a settlement, this will likely cause the Philippines to get closer to entering China’s diplomatic orbit. This in turn will likely raise concerns in the United States that the Philippines, a long time American ally, is drifting away. If, on the other hand, China and the Philippines are unable to settle the matter peacefully, tensions will almost certainly rise tremendously in the South China Sea region. In short, while there is no guarantee of what will the PCA’s ruling will be, nor of what will happen after the ruling, history and precedent suggests that those hoping for an easy, simple resolution to the situation in the South China Sea will almost certainly be disappointed.

By: SUNGWOO PARK & WILLIAM MORRIS

11 July 2016