China’s problem with the rule of law

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EDITORIAL Mint, New Delhi

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THE weak legal standing of Beijing’s actions in the South China Sea has never been in any doubt outside China’s borders. The Hague-based Permanent Court of Arbitration’s (PCA’s) ruling on Tuesday rebutting Beijing’s claims vis-a-vis the Philippines is thus unsurprising, even if its sweeping nature exceeded analysts’ expectations. The course Beijing charts now will have implications far beyond the South China Sea. And the initial signs are not positive.

The fierceness of its response—President Xi Jinping has said that China “will never accept any claim or action based on these awards” while state media has raged long and hard—makes it clear that backing down is not an option in the immediate future. Much of the commentary exhorting it to do so is viewing the issue through the prism of the rule-based international order. This is indeed a grave consideration.

China’s ascent, kickstarted in the late 1970s, has been predicated upon integrating with international economic and security structures—ostensibly, at least. But its awareness of the rules of the game being shaped by western powers—specifically the US—and its conviction that the game was rigged have never flagged. In recent years, it has attempted to change the contours of those structures through initiatives such as the Asian Infrastructure Investment Bank. But if it disregards the rulings now, made under the aegis of the United Nations Convention on the Law of the Sea to which it is a signatory, it will step outside the bounds of the international order entirely. This would be a dangerous precedent for the US’ potential successor to set.

In viewing the issue through this prism, however, the nature and strength of the non-rational motives underlying Beijing’s excessive South China Sea claims must not be discounted. Rhetoric within China and historical patterns of Chinese expansionism show that Beijing views sovereignty over the proximal seas as a core element of national security in a way that goes beyond merely claiming the region’s rich fishing grounds and natural resources. It is, in effect, the marine equivalent of the Lebensraum ideology coined to justify German expansionism starting in the late 19th century.

The emotive nature of these nationalist imperatives makes managing the conflict that much trickier. This is a classic security dilemma. Beijing sees Washington’s insistence upon adherence to international law and freedom of navigation operations as direct security threats mandating a greater assertion of control in the South China Sea.
Washington, in turn, sees Beijing’s response as cause for a firmer stance; its credibility as a global guarantor of peace is at stake.

Chinese Foreign Vice Minister Liu Zhenmin’s dire warning about not turning the South China Sea into a “cradle of war” notwithstanding, neither Washington nor Beijing is likely to let the situation devolve into open conflict. The risks and costs would be unacceptable for both. Nevertheless, the instability caused by the security spiral is dangerous. The unenforceable nature of the PCA ruling and the lack of unity in the Association of Southeast Asian Nations (Asean)—while the Philippines, Vietnam, Malaysia and Brunei have claims that conflict with China’s, Cambodia and Laos have been less than enthusiastic about presenting a united front—muddy the waters further.

Immediate decisive action on either side is unlikely with the Asean summit looming at the end of the month and the G-20 summit in September. In the interim, Beijing may very well resort to a mix of economic bribery and blackmail. The new Filipino President, Rodrigo Duterte, has hinted that he would be willing to go easy on the issue in exchange for the Chinese investment he needs to deliver on his populist promises. And Beijing’s continent-spanning One Belt, One Road project, with all the economic largesse it promises, is another potential lever.

There are no easy solutions on the horizon. Washington, New Delhi, Tokyo and other regional actors with a stake in containing Chinese aggression must keep up the pressure regarding the PCA ruling while avoiding triumphalism that would feed into Beijing’s paranoia. And Washington and members of Asean must keep the lines open for negotiations—but keep in mind Beijing’s penchant for bullying its neighbors in bilateral engagements. It is a fine line to walk.

The reality of the rule-based international order is that nations with sufficient economic and strategic heft can subvert it at need. Washington has done so in the past. Beijing’s actions now will show if it believes itself to have acquired the power to follow suit or if it will bide its time a while longer.

– TRIBUNE NEWS SERVICE. DISTRIBUTED BY TRIBUNE CONTENT AGENCY, LLC.

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1 Comment

  1. citizenhongkong on

    The So-called Ruling made by Permanent Court of Arbitration (PCA)

    Permanent Court of Arbitration (PCA) is Not a Court but An Arbitrator

    The PCA is not a court, but rather an organizer of arbitral tribunals to resolve conflicts between member states, international organizations, or private parties.

    It should not be confused with the International Court of Justice which is the primary judicial branch of the United Nations, while the PCA is not a UN agency.

    The Permanent Court of Arbitration (PCA) is an intergovernmental organization located at The Hague in the Netherlands. The PCA is not a court, but rather an organiser of arbitral tribunals to resolve conflicts between member states, international organizations, or private parties. It should not be confused with the International Court of Justice which is the primary judicial branch of the United Nations, while the PCA is not a UN agency.
    The PCA is a permanent bureaucracy that assists temporary tribunals to resolve disputes among states (and similar entities), intergovernmental organizations, or even private parties arising out of international agreements. The cases span a range of legal issues involving territorial and maritime boundaries, sovereignty, human rights, international investment, and international and regional trade.
    Permanent Court of Arbitration (PCA) is neither a Court nor an International Tribunal
    A court is a tribunal, often as governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, andadministrative matters in accordance with the rule of law.
    The PCA is not a “court” in the conventional understanding of that term but an administrative organization with the object of having permanent and readily available means to serve as the registry for purposes of international arbitration and other related procedures, including commissions of enquiry and conciliation. In short, an Arbitrator only.

    When Philippines first lodged an application re the South China Sea Dispute to PCA for arbitration and China refused to participate it was clear that there should be no more arbitration and Philippines should refer the case to a Court to proceed for hearing and, in this case the UN International Court of Justice in Hague.
    PCA’s role is to conduct an arbitration only rather than a Ruling which is a Court’s authority, it follows that any ruling made by PCA becomes Null and Void.
    PCA confess that they are not a Court in their official website (https://pca-cpa.org/en/home/) .