Why China Can Do Whatever It Wants in the South China Sea
13 Jul 2016
Yesterday, the Permanent Court of Arbitration in the Hague (PCA) announced that there was no legal basis for China to claim historic rights to the areas falling within the 'nine-dash line.' The Philippines welcomed the decision; however, China, has called it 'ill founded'. President Xi Jinping said earlier this month: 'We are not afraid of trouble.' His government has boycotted the proceedings, saying the court has no jurisdiction over the issue, and that it will ignore the ruling.
Over the last couple of days videos have appeared all over the Internet and Social Media broadcasting Chinese military forces flexing their muscles in a show of defiance. Is this something we should be worried about? What does this all mean? Can China ignore the ruling without any repercussions? Let's take a look to find out.
President Xi Jinping delivers a keynote speech to celebrate the 95th anniversary of the founding of the Communist Party of China in Beijing, on July 1, 2016. [Photo/Xinhua]
HISTORY OF THE PCA
According to their web site, the PCA was established by treaty at the First Hague Peace Conference in 1899, for the settlement of international disputes. The Court offers services for the resolution of international disputes which the parties concerned have expressly agreed to submit for resolution under its auspices. There are no sitting judges: the parties themselves select the arbitrators.
Unlike The International Court of Justice (ICJ), also in the Hague, The PCA, in fact, has no enforcement mechanism. It's rulings are basically suggestions. For arbitration to be binding, both parties need to agree to it and take part in the arbitration; both of which China has not.
HISTORY OF DEFIANCE
Even if China does completely ignore an International Tribunal, it wouldn't be the first country to do so. On January 18, 1985, the United States walked out of the ICJ (a court with an actual enforcement mechanism), after it first ruled in favor of Nicaragua whom claimed the U.S. was involved in paramilitary activities against the Nicaraguan government and was mining its harbors. The U.S. ignored the ruling so Nicaragua sought action by the Security Council to implement the decision. The Security Council has the authority to mobilize military forces to uphold ICJ decisions. However, getting approval to do so is tricky.
Nicaraguan "Contra" rebels on Patrol, 1987. [AuthenticHistory.com]
The United Nations Security Council (UNSC) is one of the five principal organs of the United Nations (UN). According to their web site, the UN's role in international collective security is defined by the UN Charter, which authorizes the Security Council to:
Investigate any situation threatening international peace;
Recommend procedures for peaceful resolution of a dispute;
Call upon other member nations to completely or partially interrupt economic relations as well as sea, air, postal, and radio communications, or to sever diplomatic relations; and
Enforce its decisions militarily, or by any means necessary.
The UNSC is the only UN body with the authority to issue binding resolutions to member states.
There are fifteen members of the UNSC; five of which are permanent members... France, the People's Republic of China, Russia, the United Kingdom, and the United States. These permanent members can veto any substantive Security Council resolution. This "veto" basically allows them to block the adoption of a resolution (for example, to enforce a court ruling), but not to prevent or end debate.
The United States could not prevent a ruling by the ICJ regarding its actions in Nicaragua, or prevent a debate on the topic from taking place in the UN, but it could block the adoption of the resolution; thus preventing any military action against it.
DEFIANCE IN ACTION
According to The United Nations' Global Policy Forum web site, after five vetoes in the Security Council between 1982 and 1985 of resolutions concerning the situation in Nicaragua, the United States made one final veto on 28 October 1986 of a resolution calling for full and immediate compliance with the judgment.
Nicaragua then turned to the General Assembly, which passed a resolution 94 to 3 calling for compliance with the ICJ ruling. A year later, the General Assembly again called for "full and immediate compliance" with the ICJ decision. This time only Israel joined the United States in opposition. Despite the almost unanimous decision against the United States, it had veto power and was able to block any action against it by the UN.
NEGATIVE REPRECUSSIONS FROM US DEFIANCE
Although the US was able to avoid military intervention or any enforcement of the ICJ ruling against it, some repercussions did arise in the aftermath. A foreign-policy scandal known as the Iran-contra affair came to light in November 1986 when President Ronald Reagan confirmed reports that the United States had secretly sold arms to Iran and that part of the money from those sales was used to fund the paramilitary action in Nicaragua. Congressional hearing were held and high ranking military and government officials were forced to testify. Reagan even appeared on television, eloquently admitting his administration appeared to be involved in the illegal activities. His poll ratings dropped drastically for a brief period; however, despite convictions, little more than slaps on the wrists were issued. The following President even pardoned all parties involved.
President Ronald Reagan holds up a copy of the Tower Commission report on the Iran-Contra affair. Reagan said he was “mad as a hornet” about damage to his administration from the Iran-Contra affair. [RON EDMONDS/ASSOCIATED PRESS]
Since China is also a permanent member of the Security Council, it's not hard to imagine why Beijing is so confident it can brush off the rulings of the PCA; which has significantly less influence than the ignorable ICJ. Of course, this doesn't mean China will be able to maintain a favorable public opinion. We'll have to wait and see how the public reacts to its actions and how much China cares to respond to it; however, unless it directly affects domestic social stability, chances are, that it won't.
Ironically, here's a photo of the USS Ronald Reagan (CVN 76) in transit to the South China Sea on July 5.
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