China Can’t Ignore The Hague’s Decision—But It Can Avoid It

Ships in formation in the South China Sea
Ships in formation in the South China Sea

China has dismissed the Permanent Court of Arbitration’s legal ruling for the Philippines over claims in the South China Sea as a mere “piece of waste paper.” Since the arbitration commenced, China has stated that it will ignore the decision. In reality, China has done everything but ignore the arbitration—because it cannot. Now, China’s best hope to avoid compliance is to negotiate with The Philippines for better terms.  

 

Rarely has an international legal decision—particularly one by a court most people have not heard of—received so much media interest. Much of that attention was attracted by China. For months before the decision was announced, China’s propaganda machine went into overdrive. High-level ministers made regular statements to disparage the case and undermine the legitimacy of the tribunal. Daily denouncements of the arbitration appeared in the Chinese and English-language press, written by the government and related groups, like the Chinese Fisheries Association. Chinese academics and lawyers have appeared in major fora, such as the April Annual Meeting of the American Society of International Law, to criticize the case. China has rallied other countries to support for its position. If China had wanted to ignore the case, it should have kept its mouth shut. Instead, it got the world talking about how it is running scared.

 

While China refused to participate formally in the arbitration, it was not uninvolved. Before the decision on jurisdiction, China released a “Position Paper” that looked suspiciously like a well-polished legal brief. The Tribunal treated it as almost a formal submission, and discussed each of the Chinese arguments in its decision on jurisdiction, even though the tribunal had no obligation to do so. At the merits stage, the Tribunal bent over backwards to consider China’s side of the case. The tribunal reviewed Chinese position papers and statements by Chinese officials as proxies for formal arguments. Rather than taking the Philippines’ arguments at face value, the tribunal appointed independent experts to assess the countries’ historical claims and measurements of contested geographical features. In most arbitrations, both parties advance funds to compensate the tribunal and independent experts. Since China did not pay, the Philippines alone bore these costs.

 

Now that the decision is here, China certainly cannot ignore it. Despite China’s assertions to the contrary, the decision is binding. China agreed to compulsory arbitration proceedings when it signed the U.N. Convention on the Laws of the Sea (UNCLOS), the treaty under which the Philippines brought suit. UNCLOS allows a state to unilaterally commence arbitration, and says that the result will be binding even if another party does not participate. China did not express any reservations to these provisions when it signed the treaty, to which 167 of the U.N.’s 193 member states are also parties. Refusal to comply with the result of the arbitration would risk benefits to China that UNCLOS provides, including mining rights. Noncompliance with international law would also jeopardize China’s reputation as it seeks to become a global and regional leader. China belongs to 130 international organizations that apply international law. To continue to benefit from these organizations economically and politically, China must prove that its international legal commitments are credible. Compliance with legal rules is particularly important in the maritime realm, which is critically important to both China’s economy and its friendly relationships with its neighbors. China is under great international pressure to comply with the decision, with the U.S. and Germany encouraging China to settle its disputes in international courts even before the decision is released.

 

If China wishes to avoid military escalation in the South China Sea and severe reputation costs, it would do best to comply with the decision. But within China, the decision is seen as a national humiliation. The Chinese government would be shamed before its own people if it were suddenly to back away from its claims that the arbitration is illegitimate and meekly accept the result.

 

China can easily release itself from this bind of its own making. To avoid being forced into compliance with the decision, China should negotiate with the Philippines. In the weeks before the decision was announced, both China and the Philippines’ new Duterte government have signaled willingness to talk. If China wants to save face and not look as if the arbitration has forced it to negotiate, the Philippines, ASEAN, the U.S., or another party could initiate the talks.

 

Lawfare, like most conventional warfare, is fought to achieve a peace. The Philippines’ courtroom victory means it will enter negotiations with a greatly strengthened hand. If the decision forces a negotiated settlement, the real victor will be the rule of law.

 

The views expressed here are Dr. Goldenziel’s own and do not represent those of her university or any branch of the U.S. government.

CONVERSATIONS