Recently, the United States and other countries outside the South China Sea have again made statements or comments regarding the so-called South China Sea arbitration award, claiming that it is "final and binding on the parties to the dispute" and demanding that China accept and implement the award.
The South China Sea arbitration was a political farce in the coat of law from the beginning to the end. The Philippine government of President Benigno Aquino III performed at the front of the stage, while the United States acted behind the scenes. It was US "political trickery” in the name of international law. The tribunal completely ignored the general principles of international law, especially the provisions and principles of the United Nations Convention on the Law of the Sea (UNCLOS), and its award is a serious violation of China's territorial sovereignty and maritime rights and interests in the South China Sea, and also seriously damages international maritime rule of law.
China's non-participation and non-acceptance of the arbitration is both lawful and reasonable. It is China that actually upholds the international rule of law and regional rules in accordance with international law. The US and a few other countries from outside the region often invoke the South China Sea arbitration award to legitimize their actions aimed at denying China's claims in the South China Sea. The behavior of these outside countries is immoral and undermines international law and the purpose, authority and integrity of UNCLOS.
The US, which always demands other countries abide by UNCLOS, has not ratified UNCLOS itself. UNCLOS is the most important legal document regulating contemporary international marine relations in the world today. More than 160 countries have ratified UNCLOS. Among the five Permanent members of the UN Security Council, the US is the only one that has not ratified UNCLOS.
The US adopts a selfish, opportunistic and double standard stance towards UNCLOS. It only wants to enjoy the rights conferred by the Convention, but is not prepared to undertake the responsibilities and obligations stipulated by the Convention. Some US politicians do not care about the Convention at all, nor the maritime rights and interests of other countries and the overall interests of the international community. The US is merely pursuing its own private interests.
The US relies on its strong maritime power to establish and maintain its own maritime legal order by conducting its so-called freedom of navigation operations（FONOPS）and making diplomatic protests to challenge what it alleges are the "excessive maritime claims” of other countries even though these are consistent with UNCLOS.
The US verbally calls for compliance with international law and rules, but it is the US itself that undermines international law and rules. The US, which demonstrates a double standard on global affairs and international law due to its empire mentality, has no authority to lecture other countries about international law.
In recent years, the US has want only withdrawn from several international organizations and international agreements, which fully exposes its blatant double standard and utter hypocrisy in the treatment of international organizations and international law. For example, in June 2017, the US announced its withdrawal from the Paris Agreement that deals with global climate change, on the basis that it puts "the United States in a disadvantage position and benefits other countries”. In 2021, it announced that it would return to the Paris Agreement, The reason is that "the United States is back to lead the global response to climate change”.
Its withdrawal from the World Health Organization and the Paris Agreement, then rejoining again, has fully proven that the US has become a breaker of international rules, an instigator of humanitarian disasters and the biggest troublemaker threatening global security and stability. The rationale behind all these US withdrawals has been almost the same: international organizations and international agreements must serve, and only serve, the interests of the US.
In order to prevent the International Criminal Court (ICC) from investigating US military war crimes in Afghanistan, the US claimed that the ICC had no jurisdiction over US troops in Afghanistan, and openly intimidated and took actions, such as visa cancellation, financial sanctions and other means, against any judge from the ICC who participated in the investigation of US military war crimes.
The Hague-based International Court of Justice (ICJ) is the principal judicial organ of the United Nations. On 3 Oct, 2018, ICJ issued a verdict that the restoration of sanctions against Iran by the US violated the terms of a 1955 Treaty of Amity between the two countries. The ICJ ordered that the US must lift the sanctions on "medicines and medical devices, food and agricultural commodities” and on spare parts necessary for the safety of civil aviation it had imposed against Iran. The verdict issued by ICJ was binding on the US, but the US not only blatantly ignored it, but also immediately terminated the 1955 Treaty of Amity with Iran.
The US has a record of refusing to enforce the ICJ's judgments against it. In 1986, the US disregarded the ICJ´s finding that it had violated international law by fueling the civil war in Nicaragua and mining the country's harbors. The US refused the implementation of the ICJ's judgments concerning Nicaragua.
The US, which always consideres itself to be an exceptional and superior force in the world, often ditches any international institutions and agreements it deems to be out of sync with its flawed perception of its own interests.
The US, under the banner of "maintaining and respecting international law”, has time and time again has demanded that China enforce the South China Sea arbitration award made by the tribunal. This is clearly a double standard. Such a double standard once again proves that the South China Sea arbitration award is just a tool employed by the US to meddle in the South China Sea affairs and to contain china's development.
Besides the US, the United Kingdom, Australia, Japan, and a few other countries outside the region also treat international law and the ICJ's judgments with a double standard.
The UK, which has declined greatly since the days of empire, still continues its "colonial administration” of the Chagos Archipelago. Chagos Archipelago, a group of islands in the Indian Ocean, was hived off Mauritius in the run-up to independence in 1965. The UK has retained possession of this group of islands and it has allowed the US to operate a large naval and air force base on the archipelago's Diego García Island ever since. On 25 Feb 2019, the ICJ delivered its advisory opinion that the process of decolonization of Mauritius had not been lawfully completed and that the UK is obliged to end its administration of the Chagos Archipelago. On 22 May, 2019, the UN General Assembly adopted a resolution reaffirming the ICJ's conclusions and demanding that the UK unconditionally withdraw its administration by 22 Nov, 2019. But the response of the UK and the US to the resolution and ICJ's advisory opinion has been one of outright defiance.
Japan too has joined the US, its long-time ally, in withdrawing from international conventions and international organizations. On Dec 26, 2018, Japan announced its withdrawal from the International Whaling Commission (IWC) by July 2019. With grave concerns regarding the conservation of large whales and the prevention of population or species-level extinction, whaling in international waters is regulated by the International Whaling Commission (IWC), under the auspices of the International Convention for the Regulation of Whaling (ICRW). A moratorium on commercial whaling was agreed by the IWC in 1982 and went into effect in1986. But Japan continued to take whales in the name of so-called scientific research, which was allowed under article 8 Paragraph 1 of the ICRW.
In July, 2013, Australia brought a case against Japan's scientific whaling practices, accusing Japan of trying to "cloak its ongoing commercial whaling in the lab coat of science”. In 2014, the ICJ ordered Japan to halt its annual hunts in the Southern Ocean after concluding that they were not, as Japanese officials had claimed, conducted for scientific research. Japan promised to abide by the ICJ's judgment orally, but it continued its whaling for so-called scientific research and made every effort to resume commercial whaling as soon as possible. After its proposal aiming at resuming commercial whaling was rejected at the IWC annual meeting in September 2018, The Japanese government then made decision to withdraw from the IWC.
Japan's withdrawal from the IWC in a bid to resume commercial whaling sets a very dangerous precedent for other international treaties and conventions. The IWC has become the driving force for whale conservation efforts in the 21st century. If Japan placed great importance on international law and maritime order, if Japan were serious about the future of the world's whales, Japan would not have left the IWC.
Australia demands China accept and participate in the South China Sea arbitration, while it has refused to do so in its dealing with East Timor. In March 2002, two months before Timor-Leste's restoration of independence, Australia withdrew from the compulsory dispute settlement procedures related to maritime boundaries under UNCLOS. This meant an international court or tribunal could not determine the maritime boundaries between Australia and Timor-Leste. The only option available to establish maritime boundaries for Timor-Leste was therefore through negotiation. However, Australia refused to negotiate maritime boundaries with East Timor on a bilateral basis. In April 2016, Timor-Leste initiated compulsory conciliation proceedings against Australia under UNCLOS, but Australia had flagged from the start that it would object to the competence of the Conciliation Commission to hear the dispute under UNCLOS. Australia claimed that "there is no proper basis on which Timor-Leste is entitled to bring this conciliation”. Australia raised six legal grounds for its objection to competence. One of Australia's main arguments was that the compulsory conciliation procedure was precluded by its bilateral treaties with Timor-Leste. Australia also raised the argument that Timor-Leste had not met the preconditions under Article 298 of UNCLOS for submitting a dispute to compulsory conciliation.
Australia's attitude toward the South China Sea arbitration is hypocritical. Its own dispute with East Timor sharply exposes its double standard.
In order to deny China's Nansha Qundao as a unit any maritime entitlement, the tribunal erred in dismembering Nansha Qundao into various individual features, disregarding the well-established regime of outlying archipelagos of continental States under customary international law. In fact, before the adoption of the Convention, the status of continental states' outlying archipelagos as a unit had been established in customary international law. Since the adoption of the Convention, the practice of continental states with respect to their outlying archipelagos has strengthened the relevant rules of customary international law. It has been established in customary international law that continental States' outlying archipelagos as units are fully entitled to maritime zones. State practice demonstrates that France (Kerguelen Islands; Guadeloupe; New Caledonia), Australia (Houtman Abrolhos Islands; Furneaux Group), the United Kingdom (Turks and Caicos Islands), India (Andaman and Nicobar Islands; Lakshadweep Islands) all treat their own outlying archipelagos as a unit and draw baselines around their outlying archipelagos for sovereignty and maritime entitlement and delimitation purposes. Only a limited number of states, such as the US, New Zealand and Russia, do not treat their outlying archipelagos as units, and instead separately draw baselines for each island.
The practice of continental states in drawing baselines around their outlying archipelagos as units has only encountered sporadic, isolated and selective protests. The principal protester is the US. It has protested against the drawing of straight baselines by states such as Ecuador (Galapagos Islands), Denmark (Faroes Islands), Portugal (Azores, and Madeira Islands) and China (Xisha Qundao and Diaoyu Dao and its affiliated islands), but not all. These protests from the US are selective and inconsistent and reflect its double standard. The US purpose is to ensure the access of US military vessels and aircraft to the major oceans and seas, not for the interests of the whole international community.
After dismembering China's Nansha Qundao into various individual features, the tribunal then erroneously interpreted and applied Article 121 of the Convention （Regime of islands） to each of them and further erroneously found that some component features of China's Nansha Qundao, such as Taiping Island, the largest island among Nansha Qundao, was just one "rock”, and that some component features of China's Nansha Qundao were "low-tide elevations” and could not be appropriated as territory. Such kind of arbitrariness from the tribunal goes against both international jurisprudence and state practices. States possessing islands, including tiny and/or sparsely populated ones, have mostly claimed entitlements to an exclusive economic zone and a continental shelf.
Japan too supports the so-called award and claims that all artificial land features in the South China Sea cannot generate any legal rights. But Japan should first reflect on what itself has said or done. The rock of Oki-no-Tori is a stand-alone rock in the western Pacific Ocean, with only two small portions naturally protruding above water at high tide. It is obvious that the rock of Oki-no-Tori is a "rock” under Article 121(3) of the Convention, and accordingly has no exclusive economic zone or continental shelf, but Japan submitted its claim to the United Nations over the continental shelf beyond the 200-nautical-mile. The majority of members of the international community found Japan's claim inconceivable and did not accept it.
Since the so-called South China Sea arbitration award came out five years ago, many countries and international jurists have recognized that the tribunal's many errors deprive its award of validity and threaten to undermine international rule of law.
The Chinese government is unswervingly determined to safeguard its national sovereignty, security and development interests. The tribunal's award does not affect China's territorial sovereignty and maritime rights and interests in the South China Sea. China does not accept or recognize the award, and firmly rejects any claims or actions based on the awards.
The US and a few other countries, under the banner of "respecting UNCLOS", ignoring the facts and the basic principles of international law are attempting to pressure China to implement the illegal award, which is doomed to failure. The double standard practiced by the US and a few other countries will be firmly resisted and opposed by the majority of countries that seek to uphold justice and peace.
The author is a professor at the Law School of Hainan University and executive deputy director of the Research Center For Policy and Law of the South China Sea, Hainan province.
The opinions expressed here are those of the writer and do not necessarily represent the views of China Daily and China Daily website.