June 22, 2016.
China is facing a potential decision point in its moves to assert its claims over much of the South China Sea. Beijing has reportedly told some Asian nations that it may withdraw from the United Nations Convention on the Law of the Sea (UNCLOS) if the ruling by the Permanent Court of Arbitration in The Hague, expected within days, goes against China’s interests.
Filipino protesters in Manilla express their displeasure with China’s activities around disputed islands in the South China Sea. An international court decision on a complaint filed by the Philippines over the islands is expected in the near future. (NOEL CELIS/AFP/Getty Images)
The court case revolves around China’s claims to islands in the South China Sea also claimed by the Philippines — or more precisely, whether the islands fit the definition of islands under UNCLOS and thus grant their owner certain maritime territorial claims. The purported threat to withdraw from UNCLOS follows a similar report that China would consider expanding its Air Defense Identification Zone (ADIZ) over the whole of its claimed territories in the South China Sea if the court ruling is not in its favor.
On the one hand, neither of China’s reported threats carry much immediate meaning. First, Beijing has already said it considers the court ruling illegitimate, whatever the outcome, and refused to even take part in the hearing on the case. Second, a withdrawal from UNCLOS does not necessarily expand China’s options any more than simply ignoring or selectively interpreting UNCLOS. Finally, despite the uproar over China’s expansion of its ADIZ over the East China Sea in 2013, the announcement had little real effect on air traffic.
On the other hand, Beijing’s recent actions and comments suggest that it is feeling growing international pressure to curtail its territorial claims and actions in the South and East China seas. China has subtly altered its basic justification for claiming the maritime territory it has, now arguing not that the occupation of islands justifies the claim but rather that the possession of the water justifies the occupation of the islands. And following a recent increase in confrontations between Chinese fishing boats and Indonesian authorities near the Natuna Islands, China simply asserted that those were traditional Chinese fishing grounds — enough justification for the actions of the fishermen. Additionally, China continues to accuse other countries, particularly the United States and Japan, of double standards when it comes to the rights of freedom of navigation in the region.
The reported threat to leave UNCLOS is in some ways like North Korea’s repeated threat — which it eventually carried out — to withdraw from the Nuclear Non-Proliferation Treaty. Pyongyang abided by neither the letter nor the spirit of the treaty when it was a signatory, yet participation brought certain self-imposed constraints and created a space for a common dialogue with others. In addition, the threat of leaving shaped the behavior of other countries that sought to pre-empt such an „extreme“ action.
China already selectively interprets the UNCLOS regarding midpoints, definitions of islands and what constitutes legitimate maritime action within its claimed waters, and Beijing refuses to participate in the Hague case (despite the arbitration fitting with the UNCLOS mechanisms). But the threat to withdraw from UNCLOS is an extreme action that, from Beijing’s perspective, is something other nations will want to avoid.
In its deliberations, however, the court is unlikely to take China’s threats into consideration, and if it sticks to the core elements of the case, China has little hope of a decision it likes — most of China’s artificially expanded „islands“ are unlikely to be considered islands under UNCLOS definitions and thus would not count for establishing territorial claims. Such a verdict would not strengthen Manila’s claims to the „islands,“ but it would invalidate China’s claims to the 200-nautical-mile exclusive economic zones around them, significantly curtailing China’s ability to even come close to justifying its so-called nine-dash line claims of maritime territory in the South China Sea — at least by UNCLOS standards. And if the court decides to take a stand on the nine-dash line itself, this would be even more disconcerting for Beijing.
And this is where the decision point comes for China. As a nascent „great power,“ China is shaping its relationship with countries around the world. For the past several decades, it has asserted the moral high ground in the international arena by emphasizing its adherence to U.N. guidelines — at least when they fit its agenda. China criticized the United States for unilateral military action overseas, whereas China had a strict official policy of noninterference and engaged in overseas military activity only under U.N. oversight. And more directly, China was always quick to emphasize that it had ratified the UNCLOS, whereas the United States has not and thus has no justification to criticize or challenge China’s maritime policies in the South China Sea.
Leaving UNCLOS would be an assertion by the Chinese that international law does not apply to them, at least in this case. As a matter of course, most nations pick and choose which international conventions to adhere to. But such a move by China on maritime policy would mark a sharp change in its behavior. If Beijing declared it no longer considered UNCLOS to be legitimate, then China could conceivably assert its own set of criteria to justify its claims to maritime territory. Already it is largely doing this, claiming territory based on its own interpretation of the history of traditional Chinese fishing grounds.
Leaving UNCLOS would mark a more direct challenge by China to the way the international system is structured. China’s emergence is by its very nature changing the status quo in the Asia-Pacific and beyond. Behavior that would have seemed perhaps natural in the 19th and early 20th centuries is now seen as anachronistic. And near zero-sum assertions of territoriality and spheres of influence, which would also have seemed the norm during the Cold War period, are also now deemed outdated.
As China seeks its place regionally and internationally, it is doing so in a world system it deems restrictive and favoring the United States (which, Beijing is quick to point out, fails to adhere to selected international norms or constraints itself). China may be nearing a point where its national interests are no longer entirely compatible with current international structures. Beijing may now be deciding whether to continue trying to formulate its policies and positions to fit within the existing constructs or assert that those structures are unfair and outdated and seek to change them, whether through consensus or fait accompli.
