Does the United States Really Care About International Law?

Over the last few days, the U.S. Assistant Secretary of State for East Asian and Pacific Affairs, Daniel Russell, has stated that the United States has no position on the sovereignty of islands in the South China Sea, but it is concerned by the manner in which these conflicts are being resolved. He clearly expressed that the United States supports the arbitration proceedings initiated by the Philippines under the framework of international law and that he thinks both China and the Philippines have an obligation to respect the judgments of the arbitral tribunal.

Such emphatic speech about international law from the United States is shocking. In 1893, when the U.S. invaded the Kingdom of Hawaii, it said absolutely nothing about international law. In 1979, as relations normalized between the U.S. and China, although the U.S. admitted that Taiwan was a part of China, it continued to sell weapons to Taiwan. The sales were based on the U.S.’s Taiwan Relations Act and not on any sort of international law. Nor did the U.S. war against the sovereign nation of Iraq in 2003 have any sort of basis in international law.

The United States views international law instrumentally, not as a guiding principle. The U.S. once joined the Kyoto Protocol and the Anti-Ballistic Missile Treaty but later discovered that these hindered its own national interest and immediately left the agreements. The United States currently supports the Philippines’ making of a claim against China on the grounds of the U.N. Convention on the Law of the Sea (UNCLOS) in an international arbitral tribunal; however, the U.S. has never joined UNCLOS because its treatment of the seabed does not conform to U.S. interests.

The above examples show that the U.S. will violate international law or pull out of international agreements based on its own selfish interest and that its attitude toward international law is anything but strict. And yet, when it comes to the South China Sea, the U.S. is suddenly and unusually taking international law very seriously, expressing support for the Philippines as they seek arbitration on the South China Sea question under the framework of international law. If the U.S. is serious in its talk about international law, it should look back and examine the United Nations Charter, a modern source of international law. According to this fundamental treaty, a country’s exclusive rights and interests arise from its sovereignty. In maritime affairs, a country’s claim to an exclusive economic zone must be based on that country’s continental shelf, on whether it is a coastal state or on islands it possesses, which must have certain specific characteristics.

China has been carrying out the development and exploitation of many South China Sea islands and exercising administrative control over them for a long time. In the latter part of the 1940’s, the Chinese government laid claim to all the islands and reefs on its side of the “nine-dashed line,” and the other countries adjacent to the South China Sea either tacitly accepted or openly supported these claims, a situation which persisted for decades. Later, some countries went back on their word and began to nibble away at China’s islands and reefs. When the U.N. Convention on the Law of the Sea came out in 1982, it only gave coastal countries certain rights to exclusive economic zones; it did not change who originally held sovereignty over the islands and reefs in these waters. It must be pointed out that according to this same Convention, many of these islands give rise to territorial waters and that other island-like geographical features with specific characteristics give rise to special economic zones. If neighboring countries’ exclusive economic zones overlap, those countries should negotiate an agreement.

International law is an important source of order in international relations, and China has always been an active defender of its principles. The dispute between China and the Philippines has two facets: one is the sovereignty of islands and reefs, and the other is the delineation of overlapping claims of maritime rights that extend outward from these geographical features. Currently, the greatest point of contention between China and the Philippines in the South China Sea arises from the fact that, for a long time, the Philippines had tacitly or openly recognized China’s claims of sovereignty over the islands and reefs in the South China Sea. Only later did they begin using all kinds of tricks to try to move in and absorb some of these geographical features, setting off China’s struggle to protect its rights of maritime development.

The United States has stated that it is takes no position on the key question of sovereignty over the islands and reefs, while perversely continuing to require that the status quo – set after the Philippines had moved in on and tried to absorb these islands – be maintained. This is a case of the U.S. shamelessly taking sides with the Philippines. Suing over maritime economic rights and not addressing the sovereignty of these islands is a complete reversal of the roots and branches of international law. The United States says it is only concerned with the manner of arbitration in the South China Sea dispute, yet it has painstakingly evaded the fact that the international arbitral tribunal, to which the Philippines submitted its complaint, does not have the authority to make a judgment of sovereignty, even while the question of which country holds sovereignty over the islands and reefs is at the root of the dispute.

The United States’ respect for international law is a fabrication. The ultimate reality is that the U.S. is willing to change the nature of its positions to side with certain countries, such as the Philippines. The way the U.S. clumsily plays around with international law is an affront to the law’s principles and spirit.

(The author is a professor and deputy head of the Institute of International Studies at Fudan University.)