A higher law for a sea low on peace

Most places on Earth, whether water or land, are now governed by rule of law rather than rule by force. Not so in the South China Sea. In the past decade, it has become the scene of confrontation among naval vessels and fishing boats over shoals and islets. Latest example: On Monday, China claimed it “drove away” a U.S. warship that passed through the disputed Paracel Islands.

This week, however, many Asia-Pacific nations marked an anniversary for this important waterway, one that is a critical conduit for about a third of all maritime trade.

Five years ago, a landmark decision by an international court set down some legal order for the South China Sea. It may have even prevented war between China and the United States.

In 2016, the Permanent Court of Arbitration in The Hague struck down China’s vast claims in the South China Sea, specifically to the rocks and reefs close to the Philippines. The ruling relied on the universal character of the 1982 Law of the Sea treaty to impose international law for China’s aggression against the Philippines.

As the victor in the lawsuit, the Philippines has used the anniversary not to criticize China – which still ignores the ruling as a “piece of wastepaper.” Rather, said Foreign Minister Teodoro Locsin Jr., “We see it as it should be seen: as favoring all which are similarly situated by clarifying definitively a legal situation beyond the reach of arms to change.”

Since the decision, many nations with claims to or interests in portions of the sea have used the ruling to make legal or diplomatic moves rather than resort to military might. Malaysia and Vietnam, for example, have agreed to end their differences over the waters between them. Since 2019, at least 12 countries have exchanged notes or made statements that address the overlapping claims.

China, meanwhile, has been on the defensive, having to explain why it operates outside international law with bizarre claims to waters a thousand miles from its shores. And the Biden administration has endorsed a Trump administration policy of rallying maritime nations to reject China’s claims by sailing ships through the sea’s international waters.

“Nowhere is the rules-based maritime order under greater threat than in the South China Sea,” said U.S. Secretary of State Antony Blinken this week.

Maritime law has long led to peaceful resolution of disputes between nations and has kept freedom of navigation in the high seas. The 2016 ruling, write Vietnamese scholars Nguyen Hong Thao and Nguyen Thi Lan Huong in The Diplomat, “has contributed greatly to the development of the international law of the sea.” It has also set a standard for the power of law over the power of guns.