China’s fear of Asean’s call to resolve the South China Sea issue using principles of international law is akin to the attitude of the US in its dealings with the World Trade Organisation, as well as the International Criminal Court, argues Doung Bosba.
In 2017, the French news agency Agence France Presse reported that China, through its ambassador in Manila, had been heavily lobbying Philippine President Rodrigo Duterte to weaken the Asean chair’s statement by dropping any reference to international law, in relation to the South China Sea issue.
China has been calling for Asean to remove a reference to “respect for legal and diplomatic processes”.
It seems that China is very sensitive to the phrase, “including full respect for legal and diplomatic processes, without resorting to the threat or use of force, in accordance with the universally recognised principles of international law.”
Such fear is undermining China’s intention to prove its peaceful rise and is further strengthening the framed perception over China’s assertiveness that the Western media try to project.
China should clearly distinguish two different features. One is on the general principles of international relations and another is on specific issues related to the South China Sea.
“Respect for legal and diplomatic processes” and “the universally recognised principles of international law” are fundamental principles for conduct of relations among states. They are general in principle and should be considered as “generic.”
On the other hand, the issues of the South China Sea are in substance related to the contest of territorial claim between states directly concerned. That is why in the “Joint Statement of the Foreign Ministers of Asean Member States and China on the Full and Effective Implementation of the Declaration on the Conduct of Parties in the South China Sea” in 2016, it was clearly written that, “The Parties concerned undertake to resolve their territorial and jurisdictional disputes by peaceful means, without resorting to the threat or use of force, through friendly consultations and negotiations by sovereign states directly concerned, in accordance with universally recognised principles of international law, including the 1982 UNCLOS [United Nations Convention on the Law of the Sea].”
In its efforts to ease China’s concern, Asean has been cautious in its statement by dividing the two features into two different sections. The former is put under the section “Asean Community Building” and the latter is put under the section “Regional and International Issues”.
But still China wants to remove the first point even if it is put in a different section in the most generic description. China’s fear and demand is unreasonable and unrealistic.
Cambodia has been referring to international law, too, when dealing with the case concerning the Temple of Preah Vihear.
China, too, is resorting to international law in its retaliation against unilateral and illegal trade protectionism of the United States.
If China rejects Asean’s inclusion of the “Respect for legal and diplomatic processes” and “the universally recognised principles of international law” in the most generic nature, China risks following the footsteps of the US in its dealings with the World Trade Organisation, as well as the International Criminal Court.
Paul W Kahn, professor of law and the humanities at Yale Law School, wrote in December 2003 describing the US opposition to the ICC as an “embarrassment”.
“An embarrassment, because the United States appears to be exempting itself from rules of the game that it believes should apply to others. This is singularly inappropriate when the game involves allegations of crimes against humanity, genocide and war crimes.
“The US claim for special status undermines the very idea of the rule of law as a single, principled normative order to which all are bound. Even worse, it may undermine the great international effort of the last century to subject the use of force to the rule of law. For the United States to take this position is particularly embarrassing, since it, more than any other modern nation-state, has held itself out as committed to and constituted by the rule of law,” wrote Mr Kahn.
Does China have a similar fear towards Asean’s text in its dealing on the South China Sea like the United States’ fear of the ICC in its dealing with Iraq?
If yes, then the casting of China as Napoleon in George Orwell’s “Animal Farm” is confirmed. In this novel, Napoleon is “a large, rather fierce-looking Berkshire boar, the only Berkshire on the farm, not much of a talker, but with a reputation for getting his own way.”
After victory over abusing power, the revolutionary leader Napoleon changed his attitude and forgets what he was fighting for.
“Napoleon holds a dinner party for the pigs and local farmers, with whom he celebrates a new alliance. He abolishes the practice of the revolutionary traditions and restores the name ‘The Manor Farm’. As the animals transform their look from pigs to humans, they realise they can no longer distinguish between the two.”
We all wish that this is not true for the sake of peace and prosperity in the region. China has a duty to reassure regional trust and confidence.
Doung Bosba is a Cambodian analyst in Phnom Penh.