The upcoming ruling by an arbitration court in The Hague on a South China Sea case brought by the Philippines will be effective according to the United Nations Convention on the Law of the Sea (UNCLOS), but China has reasons to refuse it. The core of international arbitration lies in dialogue, negotiation and willingness of the countries.
No matter what the ruling is, China should not quit the UNCLOS because of the issue, as doing so will not be in China’s long-term interest.
China holds a consistent and clear stance on the arbitration. China believes that the international arbitration is questionable, because the case brought by Manila is essentially about sovereignty and maritime delimitation, which is outside of the court’s jurisdiction.
Further, the arbitration needs to consider the historic rights that predate the UNCLOS. If the court insists on its jurisdiction and neglects the historic rights claimed by China, the arbitral ruling could not be fair, and China would not accept it.
The most important aspect of the arbitration is international opinion, especially those of some major countries, and that is what China is worried about.
While China has held its position consistently and clearly on the issue, the United States and Japan are using the arbitration to put pressure on China, which is a geopolitical game. How China treats the ruling will also depend on the ruling’s interpretation of the facts.
Anyhow, China would not change its stance.
When there are flaws or problems in a ruling, countries involved have the right to reject it. There are two examples. In 1986, Nicaragua sued the US for violating international law by supporting the rebels in the International Court of Justice (ICJ), and the US refused to participate in the proceedings as it argued that ICJ lacked jurisdiction to hear the case. In 2011, Japan also refused to accept the ruling of the ICJ after Australia filed a lawsuit against Japan’s whale hunt, after years of fruitless diplomatic efforts to end the hunt.
Theoretically, the arbitral ruling of the UNCLOS has certain binding force, but there are disputes about its premises and proceedings, which are realistic problems. To what extent the ruling can be enforced will depend on the objectivity of the facts, fairness of the process and the legal standpoint, which needs time to prove.
What’s more, any ruling only provides a legal view and a choice, and its enforcement relies on dialogue and negotiation among the parties involved. Reducing the South China Sea tensions depends on the countries’ good intentions, improvement in ties and political trust to solve the disputes through negotiation.
Generally, if the arbitration is disputable and the court oversteps its limit, it not only affects China’s stance, but also other international actors.
China would not lose its credibility by just refusing the arbitral ruling. Now, the major issue is not whether the countries will accept the ruling. The ruling will not change the facts of the South China Sea issue, and all sides should keep calm.
No matter how controversial the ruling is, China must not quit the UNCLOS. The exit will be the most unwise move and China should not resort to.
China is a supporter and a beneficiary of the UNCLOS which ensures the maritime order of the globe and conducts proceedings to solve disputes. It is conducive to China’s uninterrupted and cooperative autonomy and long-term interests.
Zhu Feng is executive director of the Collaborative Innovation Center of South China Sea Studies at Nanjing University.