Arguing International Law in the South China Sea: Does it still really matter?


“International law is very important not only for China’s sole interest but it is also to maintain a rule-based global order, to avoid a hegemonic power to do anything that they want.” Said the Ambassador of China to the Kingdom of Netherland during the Chinese Embassy Reception for The Hague Academy of International law attendance last winter course.

In his remarks, the Ambassador emphasizes how important is international law for the international community. Moreover, he also reiterates that International law should not be used by the superpower to enforce and justify their foreign policy interest. Therefore it is China’s interest to defend international law.

Even though the speech was filled with praise of the importance of international law, some people saw it with a little bit of cynicism, considering what happened in the South China Sea. Where China’s claim to nearly all the South China Sea is considered inconsistent with the United Nations Convention on the law of the sea.

Hence the questions are really is international law still really matters for China?

Indeed, Ian Hurd, an American scholar in international relations in his book entitled “How to do things with international law” argued that international law was commonly used for states to justify their foreign policy interest. He contends was align with Harold Koh, an American jurist who served for the Obama Administration as an advisor for secretary Hillary Clinton, he said that a foreign policy would become stronger when it has international law in their side and weaker if it against it.

Therefore it can be understood that nearly all American foreign policy, they always claimed to be backed up with international law. From foreign intervention to torture in Guantanamo prison, they always argued that they have international law on their side. It seems that China learns a lot of things from the United States, including how it uses and argue international law on their side.

In the South China Sea, however, it seems that the international community has been accusing China of inconsistent with their narrative in the importance of compliance with international law. By claiming the whole South China Sea China has acted against UNCLOS.  Moreover, byrejecting the tribunal ruling in the Hague, China has shown an attitude in not respecting international law.

Is it true that China does not care about international law at all?  There are some practice however which might consider China intended to use international law as a tool to justify their arguments.

In May 2018, the Chinese Society of International law wrote a critical study to the South China Sea Arbitration Awards published by the Chinese Journal of International law. The 500 pages article tried to back up the Chinese government policy with the narrative of international law by criticizing the tribunal award from an international law perspective.  Chinese scholars in international law have also frequently written an article, which tries to justify the government policy with international law argument.

In a recent article written by Professor Lei Xiaolu from Wuhan University published by the Jakarta Post for instance. The article comments on the recent escalation between China and Indonesia in the North Natuna Sea and argues that Chinese fisherman has the right to fish in the Indonesian North Natuna Sea. However, It is quite interesting because the article does not mention the illegal nine-dash or traditional fishing ground as their legal basis, but she argued that China has the ‘traditional fishing rights’.

The narratives were interesting because China did not mention the nine-dash line and traditional fishing ground argument and start to use more legal terms that recognized in international law. Indeed, neither the nine-dash line nor traditional fishing ground terminologies are not recognized by the UNCLOS 1982. Therefore, it is difficult to argue something that not even actually recognize by international law.

However, still, the article wrongly analyzed the ‘traditional fishing rights’ under UNCLOS. The ‘traditional fishing rights’ term is stipulated in article 51, is in the context of historic fishing rights in the archipelagic waters, therefore China couldn’t claim to have the rights.

It is interesting however to see that even though China always been considered as the giant in the region and violator of international law, in some sense they always brought the narrative of international law. It seems that China has been pick and choose which international law that they want to comply with and which one is not.

Therefore it seems that China has been acting as a good observer by following the footstep of the United States in using international law to justify its foreign policy agenda. It is, however, doesn’t mean that China totally disregards all international law, but as an emerging power, China started to pick and choose which rule of international law which they will comply.

Aristyo Darmawan
Aristyo Darmawan
Aristyo Rizka Darmawan is a Lecturer and Senior Researcher at the Center for Sustainable Ocean Policy at the Faculty of Law University of Indonesia.