International Tribunal Gets Its First Big Test

The news that the Permanent Court of Arbitration acting in conjunction with the International Tribunal on the Law of the Sea (ITLOS) have ruled against China and in favor of the Philippines regarding China’s claims over the South China Sea represents a big test for the effectiveness of international law. China’s reaction will have ramifications far beyond just maritime law. At question is how and when international law can be enforced, and if it cannot be, what use is it?

As I noted in my 2013 study for the National Center for Policy Analysis, LOST at Sea, the UN Convention on the Law of the Sea (UNCLOS), more popularly known in the US as the Law of the Sea Treaty (LOST), has never until now really had to make a difficult decision. Most of the adjudications under UNCLOS had to do with seizures of fishing vessels. On territorial matters, it has always until now punted, telling the parties to work it out between themselves. The South China Sea ruling is the first big test of whether ITLOS actually has the power to tell one country its claim is invalid.

So far, it looks like the Court will prove powerless. China has repeatedly argued that the Court has no jurisdiction and questioned its integrity. Its reaction to the judgment was to declare it a “political farce.” China clearly has no intention of dismantling its military bases, which have turned small rocks in the South China Sea into stationary aircraft carriers. This last development was one that was actually encouraged by UNCLOS, which recognizes such rocks as determinants of maritime jurisdiction, should its tribunals agree.

The question now is where do the Philippines turn to have the agreement enforced? The only power capable of doing so is the United States, but it remains to be seen whether either the administration or Congress would be willing to risk maritime confrontation with China over the ownership of some rocks and the waters surrounding them.

The realpolitik seems clear. China will probably get away with its breach of a UN convention, whereas a smaller nation would probably not be so lucky. What this means for other international agreements where China has promised to abide by certain restrictions is also clear. Those who expect China to be bound by grandiose emissions reduction targets should not be surprised if China continues to grow its emissions even as other nations inflict harm on their economies in order to be able to meet them.