Beijing has mastered the art of playing the international system against itself. Nowhere is this better exemplified, nor is China’s frame of reference vis-à-vis Asia best illustrated, than by its territorial and governance claims over the South China Sea. China’s government argues that its “nine-dash line” of sovereignty over the entire Sea is based on centuries of maritime history, and that China’s claim is air tight. The Chinese Foreign Ministry has even asserted that ample historical documents and literature demonstrate that China was the first country to discover, name, develop, and exercise continuous, effective jurisdiction over the South China Sea islands. The Chinese government has beaten this drum so hard and for so long that the Chinese people believe it. The nine-dash line has appeared in school room maps throughout China for decades, in conjunction with the narrative of national humiliation that resulted from numerous tales of imperialist plundering of China, its interests, and its assets, by foreign powers after the fall of the Qing Dynasty.
However, the first Chinese official documented to set foot on one of the Spratly Islands was a Nationalist naval officer in 1946, the year after Japan’s defeat in World War II and its own loss of control of the Sea. He did so from an American ship crewed by Chinese sailors who were trained in Miami. As for the story of the nine-dash line, it began a decade earlier via a Chinese government naming commission. China was not even the first to name the islands; the naming commission borrowed and translated wholesale from British charts and pilots. It is unclear how the Chinese government translated all this into the bill of goods it has sold to the Chinese people, but by now, it is a source of national pride, however misplaced it may be.
The Chinese government, and its people, have essentially backed themselves into a corner. They have been drinking the nine-dash line Kool-Aid for so long that even despite the 2016 Hague ruling that there is no legal basis for China’s claim over the Sea, and even though the Chinese government has failed to produce evidence of its declaration to back its version of the facts up, national pride will not allow it to admit that what the government is doing in the South China Sea is illegal under the very international maritime law (the United Nations Convention on the Law of the Sea) to which it first subscribed on the very day in 1982 when the Convention became a legal instrument.
Can a state remain a party to a treaty or convention without being bound by its rules? Can contracting states adhere to an international legal regime and simultaneously opt out of any binding force required or to be required by that regime? A state can be found to be in violation of a substantive legal norm even without a coercive or compulsory judgment in a given venue, provided, of course, that there is truth to the argument supporting a violation and that it is appreciated by the alternative venue.
When Manila took Beijing to The Hague to formally contest China’s various incursions into Philippine territorial waters and its exclusive economic zone, China accused the Philippines of violating the 2002 ASEAN Code of Conduct, which states that unilateral initiation of arbitration is a violation because parties to the Code are supposed to resolve their differences over their overlapping territorial claims on a bilateral basis via negotiation. Curiously, however, it was through the same ASEAN Code of Conduct that the parties reaffirmed their commitment to UNCLOS as well as to the purposes and principles of the UN Charter. UNCLOS is clearly adverse to the Chinese position. Since there is some authority under international law holding that a state’s avowed reliance on a source of law pre-empts a retraction of this reliance, by invoking the ASEAN code (which invokes UNCLOS), China admitted to the binding force of that code. Under the law, this is the case especially when a state’s admission will be an admission against its own interests.
While China disavowed UNCLOS vis-à-vis the Philippines, it expressly invoked UNCLOS provisions in its own legal claims against Japan—so it wants to have its cake and eat it too. In 2009, China submitted a claim over the Senkaku Islands (which, like the Scarborough Shoal and the Spratlys, are believed to be natural resource rich) and turned to UNCLOS rules in defining and delineating its continental shelf beyond the 200 nautical mile exclusive economic zone, again within the meaning of UNCLOS. There is some international legal doctrine supporting the view that a state’s acts in one place can be used as an admission and adversely bind that state in another set of circumstances.
The larger point is that China has not personified the Rule of Law in the Philippine case, or in others related to maritime borders, and wants to be able to cherry pick which provisions of international treaties it will willingly comply with, and which it will not. That is behaviour unbecoming of a rising global power and will make states which are signatories to treaties with China wonder if its signature is worth the paper it is printed on. This cannot be in China’s long-term interest.
That said, given that Beijing’s actions in the South China Sea occurred with little more than a strenuous objection from Washington, and that Manila has become ever closer with Beijing since The Hague ruling, there is every reason to believe that Beijing will not alter the course it has embarked on. It could even be the case that more of the Asian nations contesting ownership of the Paracel and Spratly Islands will follow Manila’s lead, admit defeat, and break bread with Beijing over the issue. That would only serve to reinforce China’s misplaced national pride on this issue and prompt Beijing to continue to take unilateral bold actions that are contrary to international law.
Daniel Wagner is CEO of Country Risk Solutions and author of the new book, China Vision.