Do As I Say, Not What I Do In The South China Sea – Analysis

The U.S., its allies and several Southeast Asian countries continue to bash China for not conforming to “the international order”.   Some of their harshest criticism focuses on China’s claims and actions in the South China Sea and, in particular, its refusal to abide by an international arbitration panel’s ruling that its nine-dash line claim is not consonant with the UN Convention on the Law of the Sea(UNCLOS). https://www.theguardian.com/world/2016/jul/12/philippines-wins-south-china-sea-case-against-china;   https://news.abs-cbn.com/overseas/01/05/20/indonesias-new-years-message-to-china-over-the-natunas-dispute-a-game-changer

This criticism is well-deserved—at least from the perspective of the builders, molders, and self-appointed interpreters of UNCLOS.  Indeed in their view what China has done and is doing is not morally “right”. But in the global—and even the regional—context, China is certainly not the only country that has ‘violated’ the existing international order and the Law of the Sea.

Indeed, defying existing norms and trying to change them is quite common behavior for major powers or those aspiring to be when the existing system does not satisfy their interests.

The U.S. has a long ignominious history of doing so.  In one of the more relevant and egregious examples, a 1986 decision by the International Court of Justice (ICJ) in a case brought by Nicaragua held that the U. S.  was “in breach of its obligations under customary international law not to use force against another State”, “not to intervene in its affairs”, “not to violate its sovereignty“, and “not to interrupt peaceful maritime commerce”. The U.S. had supported rebels against the government and even mined Nicaragua’s harbor.  The U.S. refused to abide by the decision and even blocked its enforcement by the UN Security Council. https://en.wikipedia.org/wiki/Nicaragua_v._United_States   A country cannot get much more defiant of the international order than that.

 More recently the U.S has refused to join the International Criminal Court and tried to obstruct its operations, and it withdrew from the Paris climate accords and the Trans Pacific Partnership.  Moreover it often appears to violate the UN Charter by threatening and even using force to achieve its international political objectives like its invasion of Iraq and its campaign of drone assassinations that violate other countries sovereignty around the world.

But this is not to single out the U.S. as a lone hypocrite. The U.K. – in a move reminiscent of its colonial rule – has refused to comply with a UN – set deadline to return the Chagos Islands to Mauritius. A 2019 ICJ advisory opinion found that the U.K. had violated international law and should terminate “its administration of the Chagos Islands as rapidly as possible”. https://theconversation.com/chagos-islands-uk-refusal-to-return-archipelago-to-mauritius-show-the-limits-of-international-law-127650   A 2017 UN General Assembly resolution requesting the ICJ advisory opinion was supported by 94 countries but vehemently opposed by Britain and the U.S. https://www.theguardian.com/world/2019/may/21/chagos-islands-un-expected-to-call-for-end-of-british-control 

Why would such supposed champions of the existing international order and leading critics of China’s failure to abide by it oppose such a resolution?  Perhaps it has to do with the fact that Diego Garcia, an important strategic US base that it leases form the U.K. is part of the Chagos Islands. The U.K. behavior and defense was strikingly similar to that of China regarding the arbitration decision against it.  It maintained that the dispute was a bilateral matter between it and Mauritius and indicated it would reject any ICJ decision against it – and it has.  What is good for the goose should be good for the gander.

But it is in the maritime arena proper that the hypocrisy really goes over the top.  UNCLOS has been ratified by some 168 parties including China. The U.S. — alone among maritime powers– has declined to do so.  Yet it accuses Asian countries – and especially China – of violating the Convention.  Worse it uses warships to challenge claims that in its interpretation ‘illegally’ restrict their rights to freedom of navigation. Some contend that this may be a ‘threat to use force’.

U.S. Freedom of Navigation Operations frequently challenge China’s baselines, its requirement of prior permission for innocent passage of warships through its territorial sea and its claims to territorial seas around low tide features. But China’s regional critics– like Vietnam, Malaysia, the Philippines and more recently Indonesia –also violate UNCLOS.  For example, Malaysia, Thailand, Vietnam and Indonesia have similar restrictions as China on foreign warships operating without their consent in waters under their jurisdiction.  Malaysia and Thailand even require prior consent for foreign military exercises in their Exclusive Economic Zones (EEZs).   The U.S. regularly challenges the claim of its ally, the Philippines that its archipelagic waters are internal waters. Navigation in a country’s internal waters can only occur with the permission of the coastal state. 

But perhaps the most glaring hypocrisy of all is the failure of the U.S. and many other countries around the world to abide by the precedent of the arbitration decision they so strongly accuse China of violating. The panel ruled that none of the Spratly features are islands entitled to a 200nm EEZ and continental shelf but only rocks that can only generate a 12 nm territorial sea. While technically this decision applies only to China and the Philippines, the reasoning behind it sets a precedent. It means that many features claimed by countries around the world as legal islands entitled to EEZs and continental shelves are only rocks entitled to only a 12nm territorial sea.   Such features include Tok Do/Takeshima in the Sea of Japan where sovereignty and attendant maritime zones are disputed by South Korea and Japan; the Senkaku/Diaoyutai in the East China Sea– a dispute involving China, Japan, South Korea, and Taiwan;  and Okinotorishima in the western Pacific Ocean claimed by Japan.  In all these cases, Japan’s maximization of boundary claims based on the assumption that the features are legal islands are not supported.

For the U.S. this includes some of the uninhabited northwest Hawaiian Islands.  The EEZ from these features encompasses a huge area and is the basis of a National Monument.  There are several similar US-claimed features U.S.’s islands in the Pacific around which the U.S. claims both EEZ and continental shelves that may be only legal rocks.  These include Midway, Howland, Baker, Johnston, Jarvis, and others. To bring their claims into accordance with this reasoning and precedent, countries must rescind them, or their opponents must file a complaint under UNCLOS and have it arbitrated.   Of course the U.S. — which has not ratified UNCLOS — cannot be brought to arbitration under the Convention’s dispute settlement provisions.

 Yes, China’s behavior in the South China Sea has been ‘bad’—even egregious at times. As Thucydides supposedly put it, ‘the strong do what they can, the weak suffer what they must’. This is not to excuse the behavior but to reveal the reality of our world and the contretemps in the South China Sea. All of the actors in the South China Sea have violated the “international order” to some degree and continue to do so.  Perhaps China’s critics should heed the maxim that ‘those who live in glass houses should not throw stones’.

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