US Diplomatic Actions Inconsistent with International Law

The United States has assembled an aircraft carrier group in the South China Sea and dispatched a destroyer into the territorial and internal waters of China’s Paracel Islands, based on its own unilateral “rule-based international order.” However, the rules in question are not international rules or laws, but rules that the United States made up on its own and demands that all countries accept.

US Claims of ‘Freedom of Navigation’ Inconsistent with International Law

The international order advocated by the United States is, in fact, a rule formulated according to its own interests and understanding, and is not the result of any consensus from within the international community. It bears absolutely no relation to international law, international rules, or even international organizations such as the United Nations. This unilateral attitude of the United States involves disparate aspects, among them military affairs, politics, and economics.

Take the incident in the South China Sea as an example. Worldwide, the U.N. Convention on the Law of the Sea has been ratified by 168 parties in total. The Convention aims to define important concepts such as internal waters, territorial waters, contiguous zones, continental shelves, exclusive economic zones and high seas, thereby reducing the number of territorial sovereignty disputes among countries around the world. China is a party to this international treaty, while the United States is not.

The Convention stipulates that territorial waters extend 12 nautical miles from the shore out to sea. The rights and status of each coastal state in respect to its own territorial waters are equivalent to those on land, but the ships of other countries are given the right of innocent passage. “Innocent passage” means that the ship will not stop, and its passage will not be prejudicial to the rights of the coastal state in question. Because the Convention provides for the principle of innocent passage, each party to the treaty regulates the passage of other states’ naval vessels through its territorial waters, with some states requiring permission for passage and others implementing a notification system. However, the United States is unwilling to agree to the terms of the Convention and unilaterally maintains that naval vessels be able to pass through other countries’ territorial waters whenever and wherever they please. This is the so-called freedom of navigation that the U.S. government has advocated all along, and it can be seen as the United States using its own strength and standards to flout international conventions, rules, and consensus.

Preempting International Law with National Law

Military matters aside, there have also been repeated instances where the United States has violated the international order through the application of its own standards. In the context of international business operations, for example, a recent case in point is the incident involving Huawei’s chief financial officer, Meng Wanzhou. The jurisdiction of each country over criminal acts is primarily based on its laws and international agreements, reflecting both its own sovereignty and respect for the sovereignty of other countries. In Hong Kong, for instance, with few exceptions, judicial jurisdiction has long been based on the principle of territoriality.

In recent years, however, the United States has placed domestic law above international law, gradually expanding its jurisdiction to cases arising abroad. Using its own standards, the U.S. has slowly but surely applied the principle of long-arm jurisdiction to international law, a principle that originally applied only within the U.S., and has now asserted jurisdiction over the commercial conduct of foreign civil and business entities. In Meng’s case, the 13 charges against her were all based on U.S. law and U.S. sanctions policies against Iran. This practice of asserting jurisdiction by relying on strength has already undermined the long-standing and effective principles of international legal jurisdiction – in particular the custom of respecting the sovereignty of other states by avoiding jurisdictional conflict – and has brought confusion and obstruction to normal international civil and commercial activity.

International relations and political order need to be governed by rules, but not the so-called rules laid down by the United States or a few countries unilaterally, with which other countries are then forced to comply. Through its advocacy, the United States is undermining the global rule of law and international order; and worse yet, the military advances and diplomatic agitation by the current Biden administration have turned into the greatest threat to human peace. Only by returning to international law and to an international consensus order founded on international organizations such as the United Nations, can certain countries be stopped from running amok.

The writer is a member of the Legislative Council of Hong Kong.