The danger of pushing China too far on law of the sea
Mark Valencia weighs the costs of a Chinese pull-out from UN convention
China has been under withering political and legal attack for allegedly violating the UN Convention on the Law of the Sea. Although at the recent meeting of the Association of Southeast Asian Nations in Brunei, Beijing declared its willingness to discuss a code of conduct for the South China Sea, there has been no change in its maritime claims or any let-up in the criticism it is receiving.
What are the consequences if China simply gets "fed up" with the criticism and withdraws from the treaty?
China ratified it in 1996. But rival claimants in the South China Sea and their supporters have alleged that China's nine-dashed-line claim is not compatible with the treaty. Now the Philippines, with tacit US support, has filed a complaint against China with the International Tribunal for the Law of the Sea, established by the convention. However, China has refused to participate.
Meanwhile, rival claimants as well as the US and other Western powers have criticised some of China's actions in its 200-nautical-mile exclusive economic zone as violating the freedom of navigation. And they and Japan say China's drawing of enclosing baselines around the disputed Diaoyu Islands in the East China Sea is illegal.
China used to argue the "unequal treaty" doctrine regarding boundaries that were concluded with colonial or imperial powers. It is thus not surprising that its leaders occasionally revert to rhetoric reminiscent of that era. Indeed, some of China's political analysts and particularly military officers seem to be questioning why China ratified the law of the sea treaty in the first place. Part of the explanation is that China assumed - obviously incorrectly - that the dispute settlement mechanism could be avoided by direct negotiations.
Also, China and other developing countries viewed the treaty as a package deal with many "bargains" between the maritime powers and developing countries, including extensive navigational rights for maritime powers in exchange for the deep seabed mining provisions. Although some 164 countries have ratified the treaty, the United States reneged on the deal by not doing so.
That is why it is hypocritical for the US to be an increasingly vocal critic. Unwittingly, the US may be showing China a way out of its dilemma.
China could withdraw from the treaty. That would take effect a year later and China would still be subject to the decision of the tribunal in the Philippines case.
There would be serious political costs for such an action, not least international opprobrium. It would also create fear and even instability in the region and probably draw many Asian states closer to the US. Moreover, China would lose the major propaganda advantage it enjoys in these issues over the US.
However there are advantages as well. China would then be legally free to "pick and choose" the convention's provisions and interpret them in its favour - just as the US does now. Moreover, China could simply refuse to abide by the tribunal's decision and shrug off the political fallout.
Unfortunately, there is a long political history of world powers using or making new international law to further and protect their interests. Prime among these has been the US.
America and its Asian allies need to be careful lest they push China into actually being what they fear most - another rogue country that uses might rather than right in its international relations.
Let's hope China continues to consider the costs of withdrawing from the treaty greater than the benefits.
Mark J. Valencia is an adjunct research fellow at China's National Institute for South China Sea Studies