Heresy to say great powers don't bow to tribunals on Law of the Sea?

On Tuesday, an Arbitral Tribunal set up under the United Nations Convention on the Law of the Sea (Unclos) issued its award in the Philippines' case against China's maritime claims in the South China Sea.

China immediately rejected the ruling out of hand as a "political farce" that is "nothing more than a piece of paper". Amid the chorus castigating China for rejecting an international tribunal's ruling, it may seem heretical to ask whether China's behaviour in this case represents a significant departure from prior practice by other major powers - or alternatively, if it essentially follows in others' footsteps.

Before coming to a judgment on that issue, we should answer two even more heretical questions: First, has any permanent member of the UN Security Council ever complied with a ruling by a UN tribunal on an issue involving the Law of the Sea?

Second, have any of these great powers ever accepted any international court’s ruling when (in their view) it infringed upon their sovereignty or national security interests? Simply stated, the answers are no and no.

From the day the Philippines went to court, China has argued that the Arbitral Tribunal has no legitimate jurisdiction on this issue since it concerns "sovereignty" - which the text of the Law of the Sea treaty explicitly prohibits tribunals from addressing. 

When the Arbitral Tribunal rejected China's objection, Beijing refused to participate in its hearings and made it clear that it would ignore the former's ruling. The United States and others have criticised Beijing for taking this stance. But again, if we ask how other permanent members of the Security Council have acted in similar circumstances, the answer will not be one we like.

When the Arbitral Tribunal rejected China's objection, Beijing refused to participate in its hearings and made it clear that it would ignore the former's ruling. The United States and others have criticised Beijing for taking this stance. But again, if we ask how other permanent members of the Security Council have acted in similar circumstances, the answer will not be one we like.

When the Netherlands sued Russia after the latter's navy boarded and detained the crew of a Dutch vessel in waters off the Russian coast in 2013, Moscow asserted that the court, in this case the International Tribunal for the Law of the Sea, had no jurisdiction in the matter and refused to participate in the hearings. It also ignored the tribunal's order that the crew be released while the dispute was being resolved.

Later, when an Arbitral Tribunal set up in the same way as that in Philippines versus China ruled that Russia had violated the Law of the Sea and ordered Moscow to pay the Netherlands compensation, Russia refused. Anticipating the court's ruling in the case brought by the Philippines, then British Prime Minister David Cameron proclaimed: "We want to encourage China to be part of that rules-based world. We want to encourage everyone to abide by these adjudications."

Perhaps he had forgotten that just last year, an Arbitral Tribunal ruled for Mauritius and against Britain because the latter, it said, violated the Law of the Sea by unilaterally establishing a Marine Protected Area in the Chagos Islands. The British government disregarded the ruling, and the Marine Protected Area remains in place today.

The United States has never been sued under the Law of the Sea because - unlike China - Washington has not ratified the international agreement on it known as Unclos, and is thus not bound by its rules. Expect Chinese commentators to make more of this point in the mutual recriminations we are now seeing following the court's announcement.

The closest analogue to the Philippines case involving the US arose in the 1980s, when Nicaragua sued Washington at the International Court of Justice (ICJ) for mining its harbours. The US made the same argument as China and said the ICJ had no authority to hear Nicaragua's case. When the court rejected that claim, the US not only refused to participate in subsequent proceedings, but also denied the court's jurisdiction on any future case involving the US, unless Washington explicitly made an exception and asked the court to hear a case.

If China followed that precedent, it could withdraw from the Law of the Sea treaty altogether - joining the US as one of the world's only nations not party to the agreement.

In the Nicaragua case, when the court found in favour of Nicaragua and ordered the US to pay reparations, the US refused. When the UN Security Council tried to pass resolutions ordering it to comply with the court's ruling, the US used its veto power to defeat six resolutions in a row. Then US Ambassador to the UN Jeane Kirkpatrick aptly summed up Washington's view of the matter when she dismissed the court as a "semi-legal, semi-juridical, semi- political body, which nations sometimes accept and sometimes don't".

Observing what permanent members of the Security Council do, as opposed to what they say, it is hard to disagree with realists' claims that the Law of the Sea tribunals, the International Court of Justice and the International Criminal Court are only for small powers. Great powers do not recognise the jurisdiction of these courts – except on a case-by-case basis when they judge it in their interest to do so.

Thucydides' summary of the Melian mantra - "The strong do as they will; the weak suffer as they must" - may exaggerate. But with the tribunal's ruling this week against China, it is no surprise that Beijing has chosen to respond just as other great powers have traditionally done.


  • The writer is director of Harvard Kennedy School's Belfer Centre for Science and International Affairs and author of the forthcoming book, Destined For War: America, China And Thucydides' Trap.

  • A version of this commentary first appeared in The Diplomat, an international current affairs magazine on the Asia-Pacific region.
A version of this article appeared in the print edition of The Straits Times on July 16, 2016, with the headline 'Heresy to say great powers don't bow to international courts?'. Print Edition | Subscribe