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Major powers tend to reject international law when rulings run counter to  their interests insisting that the distant courts carry no jurisdiction. China  rejected a Permanent Court of Arbitration’s ruling in July and clings to  expansive claims in the South China Sea, including Scarborough Shoal near the  Philippines. China’s response mirrored US rejection of a 1986 International  Court of Justice ruling against US support for rebels in Nicaragua. “With these  stands, both China and the United States weakened a crucial element of  international law – consent and recognition by all parties,” writes journalist  Humphrey Hawksley for YaleGlobal Online. Disregard for the rule of law weakens  the legal system for all. Hawksley offers two recommendations for renewing  respect for international law: instuitional overhaul so that the all parties  recognize the courts, rejecting decisions only as last resort, and governments  accepting the concept, taking a long-term view on balance of power even when  rulings go against short-term strategic interests. Reforms may be too late as  China organizes its own parallel systems for legal reviews and global  governance, Hawksley notes, but international law, if respected, remains a  mechanism for ensuring peace. – YaleGlobal

China and the US Undercut International Law for  Their Narrow Interests

Humphrey  Hawksley

YaleGlobal,  17 November 2016

Rule  of law? Philippine President Rodrigo Duterte did not press China's Xi Jinping on  the international court ruling on Scarborough Shoal; China's stance mirrors US  rejection of a 1986 international court ruling that favored  Nicaragua

LONDON: Flutter over the surprise visit to China by Philippines President  Rodrigo Duterte may soon fade. But his abrupt and public dismissal of the United  States in favor of China has weakened the argument that international rule of  law could underpin a changing world order.

The issue in question was the long-running dispute between China and the  Philippines over sovereignty of Scarborough Shoal, situated 800 kilometers  southeast of China and 160 kilometers west of the Philippines mainland, well  inside the United Nations–defined Philippines Exclusive Economic Zone.

Despite a court ruling and Duterte’s cap in hand during his October mission  to Beijing, Philippine fishing vessels still only enter the waters around  Scarborough Shoal at China’s mercy.

The dispute erupted in April 2012, when China sent ships to expel Filipino  fishing crews and took control of the area. The standoff became a symbol  of Beijing’s policy to lay claim to 90 percent of the South China Sea where  where it continues to build military outposts on remote reefs and artificially  created islands in waters claimed by other nations. Lacking military, diplomatic  or economic muscle, the Philippines turned to the rule of law and the Permanent  Court of Arbitration in the Hague. A panel of maritime judges ruled China’s  claim to Scarborough Shoal invalid in July this year. China refused to recognize  the tribunal from the start and declared the decision “null and void,”  highlighting the complex balance in the current world order between national  power and the rule of law.     

Beijing’s response mirrored a 1986 US response to Nicaragua’s challenge in  the International Court of Justice. The court ruled against the United States  for mining Nicaragua’s harbors and supporting right-wing Contra rebels. The  United States claimed the court had no jurisdiction.

China’s response on the South China Sea ruling mirrors  a
1986 US response.    

With these stands, both China and the United States weakened a  crucial element of    international law – consent and recognition by all  parties.

The Western liberal democratic system is being challenged, and confrontations  in     Asia  and Europe, as in Crimea and Ukraine, replicate the lead-up to the  global      conflicts of last century’s Cold War. As Nicaragua and Central America  were a     flashpoint in the 1980s, so Scarborough Shoal and South China Sea are one  now.    Other flashpoints are likely to emerge as China and Russia push to expand  influence.

Western democracies being challenged by rising powers have a troubled  history. The 1930s rise of Germany and Japan; the Cold War’s proxy theaters  in Vietnam, Nicaragua and elsewhere; and the current US-Russian deadlock  over Syria are evidence that far more thought must be given in the deployment  of international law as a mechanism for keeping the peace.

The view is supported, on the surface at least, by Russia and China who  issued a joint statement in June arguing that the concept of  “strategic stability” being assured through nuclear weapons was outdated  and that all countries should abide by principles stipulated in the “UN Charter  and international law.” Emerging power India, with its mixed loyalties, shares  that view. “The structures for international peace and security are being tested  as never before,” says former Indian ambassador to the UN, Hardeep Singh  Puri, author of Perilous Interventions: The Security Council and the  Politics of Chaos. “It is everyone's interest to re-establish the authority  of the Security Council and reassert the primacy of law.”  

The United States makes a similar argument, with Defense Secretary  Ashton Carter recently speaking about the “peaceful resolution of disputes, the  right of countries to make their own security and economic choices free  from coercion…. guaranteed by international law.”

The origins of international law go back centuries, and its main instrument  today is the 1945 UN Charter. Among its many objectives is to establish  conditions under which international law can be upheld.

Many insist that the international legal system is  biased towards the West.  

The problem is that too many governments insist that the international legal  system is biased towards vested interests of the West, indicating urgent need of  an overhaul.

UN judicial mechanisms suffered damaging blows to credibility in two recent  examples.

The 1994 United Nations Convention on the Law of the Sea, or UNCLOS was  designed to keep shipping and trade routes open, but failed in the Philippines  case because of China’s outright rejection of its application even though China  was among the early signatories.

The International Criminal Court was set up in the Hague in 2002 to try  crimes against humanity.  But in October, three African governments – South  Africa, Burundi and Gambia – announced plans to quit the ICC. Gambia described  it as the “International Caucasian Court,” intended to target Africans,  complaining that at least 30 Western nations, had committed war crimes against  independent sovereign states since the ICC’s creation with none indicted.

The United States weakens its own support for upholding law by refusing to  ratify either UNCLOS or the ICC.

“International law has a double face,” says Keyuan Zou, professor of  international law at Lancashire University. “On the one hand, it serves the rule  of-law. But on the other it is used as an instrument to pursue national  interest. In the latter sense, power politics plays a big role.”

China exhibits disdain for existing international order  
by planting seeds of
a  parallel system.

As China becomes richer and more confident, it exhibits disdain for the  existing order     by planting seeds of a parallel system. It has announced its own International    Maritime Judicial Center to counter the Hague tribunal’s  Philippines hearing.  It    created the Asian Infrastructure Investment Bank to  compete with the World Bank,   the Asian Development Bank and similar  institutions. It unveiled its One Belt One   Road initiative to secure  trade routes and supply chains far from its borders and   hurried to  build outposts around South China Sea islands and reefs while   the Permanent Court of Arbitration conducted its review.  

Then in July it tore up the balance between law and power, rejecting the  tribunal’s South China Sea ruling, and power became supreme.

Duterte, reacted first by warning of a “bloody confrontation” over  Scarborough Shoal. The United States backed the Philippines, supported  the tribunal’s finding and challenged China’s resolve by sailing warships  through the waters in Freedom of Navigation operations.

Duterte’s bravado did not last long. He back-pedaled, acknowledging that the  Philippines $294 billion economy could not withstand hostility from China’s $11  trillion economy. He flew to Beijing and came away announcing that he had struck  his own deal over Scarborough Shoal while winning $13.5 of trade and  investment agreements from China. Most significantly, he declared that his  country’s future lay with China and not with its traditional ally.  “America has  lost,” he stated coldly, in a grim marker.

The United States promotes international law as the level playing field  on which smaller nations need not make such black and white choices, as they had  to during the Cold War, of deciding which of two larger rivals to support.

Many weaker nations such as Moldova, Cambodia and Singapore watch closely and  hope the Philippines story does not become a trend.

To achieve that, two steps are required: First, the institutions of  international law must be overhauled so they are recognized by all parties and  rejected only as a last resort. Second, governments must accept the concept of  international law in the balance of power even when it might go against their  short-term strategic interests.

The cold reality of global politics exemplified by Duterte’s decision shows  that such an overhaul might not be possible and, in short, warns about a repeat  of history whereby a dominating hegemonic power holds threatening sway over  regional vassal states.

Evidence of this came within weeks of Duterte’s Beijing visit. China stated  unequivocally that the situation with Scarborough Shoal was unchanged: It  remains Chinese sovereign territory, and satellite pictures show Chinese  Coast Guard ships still patrolling there.

Humphrey Hawksley is formerly the BBC’s Beijing Bureau Chief and author  of The Third World War: A Novel of Global Conflict. His next book  Asian Waters: America, China and the Global Paradox will be published  in 2017.