How can China say it abides by international law - and in the next breath say it will ignore a ruling by an international tribunal that goes against it?
Imagine a boy who grows up in a sheltered environment, socialised in his isolated world among his own kind. One day he decides he wants to play with the other children in the playground nearby.
He is tall and strong, and the others eye him warily. He also doesn't seem to understand that they must take turns and that it is not okay to shove others to get to the front of the queue.
The boy wants to make friends, and has lots of toys and sweets to give away. But he demands - not expects - gratitude and appropriate reciprocal actions in return for his gifts.
The children in the playground have devised their own set of rules and agree to refer to a council when there is conflict.
The boy says he will abide by those rules, but his actions do not fit his promises. He has noticed that other big boys sometimes ignore the rules, and get away with it. So he chooses what rules to abide by, ignores some of the council's actions, and talks alternately sweet and tough at all times.
No wonder, after a time, that the boy has few friends in the playground.
I got to thinking up this imaginary scenario when news broke last week about a tribunal's ruling on an arbitration case brought by the Philippines against China. The tribunal ruled overwhelmingly in favour of the Philippines, saying that China has no legal basis to claim historic rights to areas within a nine-dash map that it had used, and that none of the disputed features in the Spratly Islands is entitled to an exclusive economic zone (EEZ) of its own.
Under the United Nations Convention on the Law of the Sea (Unclos) that China ratified in 1996, countries are entitled to an EEZ of 200 nautical miles from the boundaries of their islands. In effect, the tribunal's ruling dismissed China's claim to sovereignty and rights over all of the maritime areas, land and waters, within the South China Sea as suggested in its nine-dash map.
Like an improperly socialised boy who joins a fraternity and then lashes out when its rules deny his claims, China reacted by dismissing the "law-abusing" tribunal that it said had no jurisdiction over the case; and described the verdict as a "farce" that was null and void.
It's easy to paint China into the role of the neighbourhood bully, throwing its weight around - and to think of it as a hegemonic power, intent on using its economic and growing military muscleto dominate the region.
Yet, stripped of their bluster, China's own declarations are not in accord with that picture.
President Xi Jinping declared that China's "national sovereignty and our maritime rights and interests in the South China Sea will not be affected in any way" by the ruling.
In the next breath, its leaders frequently express China's commitment to international law.
Its Foreign Ministry said China stood ready to "resolve the relevant disputes peacefully" through negotiation and consultation with other claimant states "on the basis of respecting historical facts and in accordance with international law".
How can someone deny a ruling handed down by an arm of international law, and in the next breath say they are committed to international law? (The tribunal is set up under Unclos that China is a signatory to, and its decision is legally binding.)
There are four possible explanations.
As a relative newcomer in the global arena, China may thus need time to get used to new rules... It will tend to want to interpret international law in its own national interests for as long as it can do so - learning from a few bad habits of other superpowers. The tribunal ruling is one step along the journey to nudge China into accepting international rules. Other countries' responses to the ruling, and the way they respond to China's indignation now, can turn China away, or help China come to terms with the rules of the game.
The first is wilfulness: I'm big and I don't care about your rules.
Superpowers ignore international law at will when their sovereignty or national security interests are involved, as political scientist Graham Allison noted - the way the United States did when Nicaragua sued Washington for mining its harbours and won in the International Court of Justice (ICJ). America said the court had no jurisdiction, and vetoed six United Nations Security Council resolutions ordering it to comply. Russia also ignored a tribunal ruling and refused to comply, in a case against the Netherlands.
Big powers pick and choose which rules to abide by. The US, in this respect, as a superpower is also a super hypocrite. It urges China and other parties to abide by the tribunal ruling - but it has itself not even ratified Unclos. By ignoring the ruling, China may be treated like a pariah now - but it may just be learning to behave like a superpower.
The second explanation is cognitive dissonance: Lying to itself. China really believes that it is part of the global order, wants to play by its rules, and fails to see that its strident refusal to abide by the tribunal's decision is inconsistent with its global position. It also fails to see that its actions - ramming of vessels, blocking the Philippines' fishermen, and constructing artificial islands to house facilities - are inconsistent with its avowed proclamations of being a peaceful large neighbour committed to international law.
In other words, it is lying to itself.
However, I doubt this theory is credible. China is a very smart, very big and increasingly sophisticated power. It has millennia worth of statecraft to fall back on. If it is saying one thing and doing the opposite, it is doing so for a reason, not because it can't see the inconsistency.
DIVIDE AND CONQUER
Which brings us to the third explanation: that saying one thing and doing another is part of China's grand strategy. And its strategy is to divide and conquer.
It's important to state what China's grand strategy is likely not about. Many analysts agree with China's self-formulation that it is not an expansionist or missionary power - it does not grab territory or set up colonies the way the British, Dutch, Spanish and Portuguese did in the late 16th to early 20th centuries; and it does not seek to impose the Chinese political model on others the way the United States wants to export and impose its version of democracy and human rights on others.
If expansion and colonisation are not its aim, what is?
Writer Sun Xi, in a commentary in The Straits Times (ST), said that while China is not a missionary power, it has a mission - the "Chinese Dream" of achieving the "great rejuvenation of the Chinese nation", in President Xi's words.
Mr Sun wrote: "China hopes to restore its historical position as a global leader, a dominant power in the world. To put it simply, China wants to be respected by the rest of the world again." To realise such a mission, China needs economic rejuvenation and political, military and cultural rejuvenation as well, he added.
China's narrative is quite clear if we take its words at face value. It seeks to establish control over what is historically China's. During the "century of humiliation", China had to stand by helplessly when it lost territories and was carved up like a melon (gua fen) by Western imperialist powers.
But with the establishment of the Chinese Communist Party (CCP) that brought unity and now strength to China, China wants to win back territories and regain respect. Some analysts say this is part of the CCP's campaign to boost its own legitimacy.
In order to win back territories, China resorts to a strategy of divide and conquer. It splits Asean by getting countries beholden to it (such as Laos and Cambodia) to deny the organisation the unanimous consensus it needs to get anything done. It refuses to negotiate with Asean as a bloc, insisting on bilateral negotiations so it can deal with smaller countries one by one.
This is the pragmatic realist view.
Still, the fact that China is not a missionary power offers hope for peaceful resolution of conflict. China does not want to remake South-east Asia into its own image. It wants respect and a share of resources (albeit likely the larger share).
The fourth explanation for the disconnect between China's words and actions is plain misunderstanding.
Perhaps China wants to abide by international law, but doesn't understand it. Or perhaps the tribunal didn't understand China's claims.
After all, China ratified Unclos in 1996 and was a supporter of the EEZ regime. Why would it now go against it?
Dr Rajagobal put the spotlight on a 2009 joint submission by Vietnam and Malaysia to the UN. This sought to clarify their competing claims in the southern part of the South China Sea under Unclos.
China was then forced to respond. He wrote: "On May 6, 2009, China found itself facing the stark certainty of Unclos and the prospect that the Philippines would follow the lead of Vietnam and Malaysia and bring its claim in line with Unclos...
"China, perhaps too hastily, submitted a formal rebuttal to the Malaysia-Vietnam... submission the very next day with these words: 'China has indisputable sovereignty over the islands in the South China Sea and the adjacent waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof (see attached map).'"
It attached the now-famous nine-dash map.
The Internet age and the words "adjacent waters", "sovereign rights" and "jurisdiction" acted like proverbial red flags to the bulls of international law experts and observers. An issue that once involved six claimants in a small sea in Asia became internationalised.
The stakes went up. Put on the defensive, China hardened its position.
It is significant that the tribunal last week stated that the root of the issue "lies in fundamentally different understandings of their respective rights under Unclos in the waters in the South China Sea, and not in any intention by one of the parties to infringe the rights of the other", as summed up by international law expert Robert Beckman in his ST commentary "Tribunal Ruling A Game Changer".
If China failed to understand Unclos fully, could the Unclos tribunal also have failed to understand China fully?
After all, China's leaders speak in terms of claiming sovereignty - although over what exactly is unclear. They thus consider the tribunal "law-abusing" and out of its jurisdiction. (It is true that Unclos cannot determine territorial disputes on sovereignty. These may be referred instead to the ICJ.) From this point of view, China's refusal to take part in the tribunal's proceedings is less intransigence, and more a logical follow-through of its initial stance.
Yet the tribunal ruled that China's claims did not amount to claims over historic "title" but only to "historic rights". In international law parlance, rights refers to economic rights such as fishing rights or rights to the oil and gas and other resources within an area, while title suggests possession. China's own statements have left ambiguous what it is claiming, and where, within the nine-dash map.
The tribunal decided that China's claims of "historic rights" but not title meant the tribunal had jurisdiction to consider the case. And it ruled that whatever historic rights China might have claimed or enjoyed were given up once China ratified Unclos. Unclos law trumps.
With each party insisting on its own view and definition of words used, the two would always appear to be talking at cross purposes.
Of course, those who respect the rule of law know that the tribunal has the backing of international law and its words carry the weight of legal mandate. They would tend to see the ruling as legitimate, and China's protests as unreasonable and obstructive. And yet, as the tribunal itself speculated, there was no intention of either party to infringe on the rights of the other. No hegemonic imposition. Just different interpretations of what rights one has.
If misunderstanding is the issue that drives a stake into China's relations with South-east Asian claimants, is there hope for some bridging of the mental gap?
China's experience in the World Trade Organisation (WTO) might be a useful indicator. After a long, 15-year process, China signed on to the WTO in 2001. It then faced the indignity of being repeatedly sued by trade partners such as America and Canada under WTO dispute rules and had to defend itself.
But after about a decade, it became more active. An analysis by Geraldo Vidigal in EJIL:Talk!, the blog of the European Journal of International Law, of 50 WTO disputes from 2012 to 2015 found that China was joint third with the US, initiating 10 disputes. The top was the European Union with 18 and Indonesia was second with 13.
Oxford professor of public international law Dapo Akande speculated on the reason in the same blog: "If it is locked into a system which is regularly being used against it, then why not use the system against others as permitted by that system."
As a relative newcomer in the global arena, China may thus need time to get used to new rules, and to new ways of doing things. It will tend to want to interpret international law in its own national interests for as long as it can do so - learning from a few bad habits of other superpowers .
The tribunal ruling is one step along the journey to nudge China into accepting international rules. Other countries' responses to the ruling, and the way they respond to China's indignation now, can turn China away, or help China come to terms with the rules of the game.
That new boy at the playground?
Could be a bully.
Could be someone lying to himself about his actions.
Could be a boy who believes the playground belongs to him and wants the other smaller boys to kowtow to him before he will consent to them playing there also.
Or could be someone who is used to playing only among his own kind for years, and is just trying to get used to the new rules of the game with others. He might be rather solipsistic and sees things from his sheltered point of view. But he isn't a bully - not in his own eyes anyway. He needs time and proper socialisation to get used to playing with others.
Or, possibly, all of the above.
A version of this article appeared in the print edition of The Sunday Times on July 17, 2016, with the headline 'China: Bully or misunderstood new boy?'. Print Edition | Subscribe
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