Hague ruling on the South China Sea: What shaped Beijing's response

In numerous speeches, Chinese President Xi Jinping has declared China’s support for international cooperation and peaceful resolution of disputes.

“China’s permanent membership on the UN Security Council entails not only power but also responsibility that it is ready to shoulder,” Xi said while meeting with United National Secretary-General Ban Ki-moon three years ago.

Yet this week, Beijing unequivocally rejected a ruling by an international tribunal that concluded that China had violated maritime law with its aggressive activities in the South China Sea. China’s refusal to accept the judgment suggests that, like other superpowers, it now plans to be selective in complying with global treaties and rulings.

Andrew Mertha, a specialist in Chinese politics at Cornell University in Ithaca, N.Y., says that China once worked hard to court international institutions, but now presents itself as a victim of them.

“As far as international opinion is concerned, China has effectively isolated itself,” Mertha writes in an email exchange. He expects China’s leaders to further disengage because of recent public backlash in China to the tribunal’s decision, which was prompted by a lawsuit brought by the Philippines.

Other analysts, however, warn against making too much of Beijing’s recent actions, saying that they may not reflect how China deals with future encounters with international institutions. China has a special interest in the South China Sea that affects how it responds to international pressure, according to Julia Xue, a senior fellow in the international law program at Chatham House, a think tank in London. Beijing is also upset that Manila filed its grievance with the Permanent Court of Arbitration in the Hague before exhausting bilateral negotiations. 

“China is very sensitive about sovereignty and security issues,” said Ms. Xue, speaking at a Tuesday conference in Washington D.C. organized by the Center for Strategic and International Studies. 

Tuesday’s ruling stemmed from China taking control of a reef called Scarborough Shoal that sits 140 miles off the Philippines coast. In 2013, Manila filed a lawsuit with the Hague tribunal, accusing China of violating international law by interfering with fishing in the area and failing to protect the reef from environmental damage. 

In addition, Manila urged the court to reject China’s claim of historic sovereignty over part of the South China Sea that sits within a “nine-dash line” appearing on official Chinese maps. Many legal experts have called that claim ludicrous, since it would allow China control over more than 80 percent of the South China Sea, excluding people from Vietnam, Malaysia, the Philippines, and other countries that have fished and navigated in these waters for centuries.

Beijing responded to the Hague tribunal by boycotting the proceedings and then, in early 2014, launching an enormous effort to build artificial islands and military facilities in the South China Sea.

In its 500-page ruling on Tuesday, the Hague tribunal’s five judges rapped China for the environmental damage it has caused in the region. It also concluded that China had no legal basis to claim sovereignty over all waters within the nine-dash line. “Although Chinese navigators and fishermen ... had historically made use of the islands in the South China Sea, there was no evidence that China had historically exercised exclusive control over the waters or their resources,” the court said.

China is a signatory to the Law of the Sea – a 1994 treaty signed by 165 countries – and as such is obligated to abide by the court’s decision. To do so, it would need to end its island-building program and stop harassing foreign fishing fleets in the South China Sea. 
So far, however, there’s been no official indication that Beijing plans to comply.

In a front page editorial on Wednesday, the Communist Party’s People’s Daily dismissed the legitimacy of the Hague arbitration proceedings, suggesting that outside “forces” were to blame.

“These forces have attempted to misinterpret the scope of the United Nations Convention on the Law of the Sea to deny China’s sovereignty over the South China Sea,” the editorial stated. “China, of course, will not accept such downright political provocations…” 
Speaking to reporters Wednesday, China’s Vice Foreign Minister Liu Zhenmen suggested that China might set up an air defense zone over the South China Sea, a prelude to intercepting and attacking any aircraft entering the area. But Mr. Liu added that such a move “depends on the level of threat we face.”

China could also respond by withdrawing from the Convention on the Law of the Sea. Yet such a move wouldn’t free China from the legal order issued by the Hague court, according to Erik Franckx, a law professor from Belgium who is a member of the Permanent Court of Arbitration.

Enforcement of the order will be problematic. Neither the Philippines nor neighboring countries have the military muscle to confront China’s warships and aircraft. And while the United States has sent vessels through the area to protect freedom of navigation, it can’t easily serve as an enforcer of the Law of the Sea, having refused to ratify the treaty.

Like some other UN Security Council members, the United States has been known to ignore judgments by international courts. In the 1980s, it defied a ruling by the International Court of Justice in the Hague that condemned US support of the Nicaraguan Contras and mining of that country’s waters. 

While some Chinese scholars have urged China to withdraw from the Convention on the Law of the Sea, others are suggesting that all parties take a breather.

Hong Nong, a research fellow with China’s National Institute for South China Sea Studies, says she was “surprised and astonished” by the sweeping Hague ruling, but fears overreaction. 

“What is important for China is to stay calm,” Ms. Hong says. “China and Philippines need to get back to an approach of negotiating.”

The Monitor’s Qiang Xiaoji contributed to this report.