By Greg Raymond
The South China Sea ruling between the Philippines and China is a test to our 'patchwork' global order. Will Beijing pass?
Overnight, the arbitral tribunal convened under Part XV of the United Nations Law of the Sea Convention (UNCLOS) found that China's claimed historic rights in the South China Sea, enshrined in its nine-dash line map, were extinguished when it signed the Convention.
China has stated clearly that it will ignore the judgement. On social media state 'news' agency Xinhua said it was "NULL, VOID", and had "NO BINDING FORCE" (caps theirs).
Twitter tantrums aside, major powers behaving badly toward global governance is hardly unprecedented. The United States is, as former Australian foreign minister Gareth Evans recently admitted, Exhibit A.
The United States' contribution to the betterment of humanity is staggering. In the early part of the 20th century it profoundly changed norms of conduct between states, principally by challenging the notion that morality applied only to conduct within states, not conduct between states. There had been glimmerings of this thinking beforehand, but it was Woodrow Wilson who stamped the ideas of collective security into the thinking of Western powers.
The institutionalising of these concepts, first in the doomed League of Nations, and later in the United Nations Charter, stigmatised war as a means of settling disputes or acquiring territory. While we may argue over the extent to which nuclear weapons contributed to the subsequent decline of war between major powers, there is no doubt that a threshold was crossed, from the time in which Roosevelt could say "No triumph of peace is quite so great as the supreme triumph of war", to the present.
The exceptionalism that led the United States to reject Europe's colonialism and balance of power diplomacy has of course had a darker side. The United States has refused to be bound by its own creations, beginning with its departure from the League of Nations, to its more recent refusal to ratify UNCLOS. Along the way the United States has refused to support many other international instruments, including the International Criminal Court. It has bypassed the UN in invading states such as Grenada, and in toppling dictators such Saddam. It has ignored the International Court of Justice, as it did in 1986 when told to end its support to armed insurgents in Nicaragua.
China has of course watched all of this from a box seat on the UN Security Council. While a beneficiary of US efforts since 1972 to bring Beijing into the international economy, China has needed little assistance in developing its own sense of exceptionalism. A keen sense of its own historical importance in Asia, sharpened by its experiences of subjugation and dismemberment at the hands of the West, underpin its rejection of international arbitration on the South China Sea dispute.
It's hardly surprising that China's embrace of liberal principles is lukewarm. China's first experience of international law was during the 19th century when Western powers used international law in tandem with force to compel the opening of its economy and society. While the Qing elites quickly learned that mastery of international law offered protection, the principles of a liberal order were less internalised than manipulated.
Meanwhile it was only World War II that forced colonial powers to renounce their unequal treaties and extraterritorial privileges. The racism that underpinned world order was apparent at the Paris Peace Conference of 1919, when despite Japan's manifest modernity, its request for recognition of racial equality was rejected.
Under communism, China's attitude to international law continued to be pragmatic; international law was something to be used when beneficial but discarded when not. In 1954 it articulated its own Five Principles of Peaceful Co-existence consecrating respect for sovereignty and territorial integrity. It preferred negotiations to compulsory arbitration for dispute settlement.
Nonetheless in 1982, China did sign and in 1996 ratify UNCLOS. And hence it should respect and implement the judgement of The Hague's arbitral tribunal. It should obey the law.
It is unlikely to in the short term. While maritime security and the potential commercial value of the South China Sea are factors driving its stance, China's Post Imperial Ideology looms the largest. China's people continue to feel vicariously a collective trauma through their knowledge of China's humiliation and subjugation at the hands of the West and Japan.
Every Chinese person believes that 'No dogs or Chinese' signs were placed on Shanghai's parks and gardens. Whether or not the sign ever existed, it is a fact that Chinese people were barred from accessing the gardens for several decades. With the shrinking of Marxism as a governing ideology, restoring China's territorial integrity and international status has become ever more critical to legitimising the Communist Party's rule.
Many in the West indulge in a discourse that ignores history, imagining that the eminently fair and reasonable system of rights embodied in UNCLOS is all that has ever existed and the past depredations conducted under international law are wholly irrelevant to the present situation. That is an outrageous fiction. The West should accept some responsibility for where we find ourselves as a region and global community.
That doesn't mean abandoning liberal principles; it does mean exercising significant restraint in how we respond to their transgression. The message that international law is important, that equality before the law is important, that all states big and small ought conform, must be conveyed and reiterated clearly, cogently and above all peacefully. This is a long game for wise statesmen and stateswomen. We can only hope that for all our sakes that these step forward and take the reins.
Global governance remains highly imperfect and major powers tend to be the greatest offenders. Does this mean that the rules-based global order is no more than rhetoric masking power politics? Only if we look at it in absolute rather than relative terms. Just as democracy exists in a wide range of hued and shades, the liberal world order is an evolving patchwork quilt.
Australia as a middle power needs to pursue the strengthening of global governance and this principle should underpin a principled and peaceful opposition to China's South China Sea position. Australia should implicitly or explicitly acknowledge the wrongs done to China in the past but make clear that Australia does not believe those injuries imply a permanent right to ignore international law or act as a hegemon towards smaller countries. There is reason to be optimistic. Many in China know the nine-dash line to be unjustifiable.
Australia should do this firstly as an independent actor and only secondly as a United States ally. The alliance is not a contract for uniformity in foreign policy nor should it be used as a tool to pressure those with whom we differ on foreign policy. It is a commitment for times of dire need, as when Australia and the United States faced Japan's expansionism. The evidence does not point to a threat of these proportions.
There is not a shred of evidence that China wishes to pursue the illogical self-harm of endangering trade in the South China Sea. For the present, the resources and 'territory' of the South China Sea are not worth the bones of one Pomeranian dog let alone those of Bismarck's grenadier. The Vietnamese say that any leader who cannot both stand up to China and get along with China doesn't deserve to be leader.
Australians should start demanding the same of their leaders.
Dr Greg Raymond is a Research Fellow in the Strategic and Defence Studies Centre at the ANU Coral Bell School of Asia Pacific Affairs.
The article was first published on New Mandala.