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发帖数: 3436 | 1 Of Course China, Like All Great Powers, Will Ignore an International Legal
Verdict
Image Credit: International Court of Justice 60th Anniversary Press Pack,
via Wikimedia Commons
Of Course China, Like All Great Powers, Will Ignore an International Legal
Verdict
In ignoring an upcoming verdict on the South China Sea, Beijing is following
well-established precedent by great powers.
By Graham Allison
July 11, 2016
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This week the Permanent Court of Arbitration (PCA) will deliver its award in
the Philippines’ case against China over maritime disputes in the South
China Sea. In a bid to thwart Beijing’s attempt to turn the South China Sea
into its own virtual lake, Manila contends that China’s claim to exclusive
sovereignty over all the islands and shoals within the nine-dashed line –
which encompasses 86 percent of the Sea – has no basis in international law
. There is not much suspense about what the tribunal will decide: it will
almost certainly side with the Philippines. The United States and its allies
have already started criticizing China for signaling in advance that it
will ignore the court’s ruling, which one Chinese official derided last
week as “nothing more than a piece of paper.”
It may seem un-American to ask whether China should do as we say, or, by
contrast, as we do. But suppose someone were bold enough to pose that
question. The first thing they would discover is that no permanent member of
the UN Security Council has ever complied with a ruling by the PCA on an
issue involving the Law of the Sea. In fact, none of the five permanent
members of the UN Security Council have ever accepted any international
court’s ruling when (in their view) it infringed their sovereignty or
national security interests. Thus, when China rejects the Court’s decision
in this case, it will be doing just what the other great powers have
repeatedly done for decades.
From the day the Philippines went to court, China has argued that the PCA
has no legitimate jurisdiction on this issue since it concerns “sovereignty
” – which the text of the Law of the Sea treaty explicitly prohibits
tribunals from addressing. When the Court rejected China’s objection,
Beijing refused to participate in its hearings and made it clear that it
will ignore the PCA’s ruling. The United States and others have criticized
Beijing for taking this stance. But again, if we ask how other permanent
members of the Security Council have acted in similar circumstances, the
answer will not be one we like.
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When the Netherlands sued Russia after the latter’s navy boarded and
detained the crew of a Dutch vessel in waters off of the Russian coast in
2013, Moscow asserted that the court had no jurisdiction in the matter and
refused to participate in the hearings. It also ignored a tribunal’s order
that the crew be released while the dispute was being resolved. After the
PCA ruled that Russia had violated the Law of the Sea and ordered Moscow to
pay the Netherlands compensation, Russia refused.
Anticipating the Court’s ruling in the case brought by the Philippines, UK
Prime Minister David Cameron proclaimed: “We want to encourage China to be
part of that rules-based world. We want to encourage everyone to abide by
these adjudications.” Perhaps he had forgotten that just last year the PCA
ruled that the UK had violated the Law of the Sea by unilaterally
establishing a Marine Protected Area in the Chagos Islands. The British
government disregarded the ruling, and the Marine Protected Area remains in
place today.
The United States has never been sued under the Law of the Sea because –
unlike China – Washington has not ratified the international agreement and
is thus not bound by its rules. Expect Chinese commentators to emphasize
this point in the mutual recriminations that will follow the Court’s
announcement.
The closest analogue to the Philippines case involving the United States
arose in the 1980s when Nicaragua sued Washington for mining its harbors.
Like China, the United States argued that the International Court of Justice
did not have the authority to hear Nicaragua’s case. When the court
rejected that claim, the United States not only refused to participate in
subsequent proceedings, but also denied the Court’s jurisdiction on any
future case involving the United States, unless Washington explicitly made
an exception and asked the Court to hear a case. If China followed that
precedent, it could withdraw from the Law of the Sea Treaty altogether –
joining the United States as one of the world’s only nations not party to
the agreement.
In the Nicaragua case, when the Court found in favor of Nicaragua and
ordered the United States to pay reparations, the U.S. refused, and vetoed
six UN Security Council resolutions ordering it to comply with the court’s
ruling. U.S. Ambassador to the UN Jeane Kirkpatrick aptly summed up
Washington’s view of the matter when she dismissed the court as a “semi-
legal, semi-juridical, semi-political body, which nations sometimes accept
and sometimes don’t.”
Observing what permanent members of the Security Council do, as opposed to
what they say, it is hard to disagree with realist’s claim that the PCA and
its siblings in The Hague – the International Courts of Justice and the
International Criminal Court – are only for small powers. Great powers do
not recognize the jurisdiction of these courts – except in particular cases
where they believe it is in their interest to do so. Thucydides’ summary
of the Melian mantra – “the strong do as they will; the weak suffer as
they must” – may exaggerate. But this week, when the Court finds against
China, expect Beijing to do as great powers have traditionally done.
Graham Allison is director of Harvard Kennedy School’s Belfer Center for
Science and International Affairs and author of the forthcoming book, “
Destined for War: America, China, and Thucydides’s Trap.” |
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