It can be argued that it was misleading to state in public that the Permanent Court of Arbitration (PCA) judgment in favour of the Philippines was “binding”. This was a matter between the Philippines and China only. China had declared at the outset that the Court had no jurisdiction over the dispute — a position also taken by one of the other claimants, Taiwan, which argued that any such dispute should be settled peacefully through multilateral negotiations.
In his strong criticism of Julie Bishop’s statement, the Chinese Deputy Foreign Minister said that China was reacting to U.S. pressure and uncertainties about what effect the U.S. "Pivot to Asia", now called "rebalancing", could have on China’s interests in its own region. On no occasion in the last 100 years had China interfered with any one of the thousands of ships trading through the South China Sea.
Our Foreign Minister’s reference to the need to support the "international legal order" refers to the post World War II order established mainly by the U.S.. Rising regional powers such as China, India, Indonesia, Vietnam and South Korea, as well as Russia under Putin – which sees itself as a Pacific power with interests in the Asian regions – all want to participate in any updated international and regional order.
While Australia would regard a decision by the Court of Arbitration in the Hague as binding on it, if Australia was before the Court, the United States has already made it clear that it will not comply with decisions of the International Court of Justice (and it would take the same view of other related international courts such as the PCA) if it regarded a decision to be contrary to its interests.
When I was at the UN in New York in 1984, Nicaragua brought a case to the International Court of Justice (ICJ) against the United States. The United States declined to participate and two years later, stated that it would not be bound by international court decisions in which it had not participated. Also, the U.S. is yet to ratify the UN Convention on the Law of the Sea (UNCLOS) which China has ratified. The U.S., nevertheless, is now maintaining that China should be bound by both.
At the recent ASEAN foreign ministers meeting in Vientiane there was disagreement amongst the ASEAN countries and no direct reference to China’s claims in respect to the South China Sea was made in the joint communique. There was therefore no need for the Australian Coalition Government to support the Philippine position — as we had no direct involvement in a case between the Philippines and China.
The regional director of Boeing said on 27 July that China’s reaction was “fitting for a rising power”, especially in its own region. It is.
In general, I think it is important for the U.S. (and Australia and Japan) to avoid comments and especially activities, which China will see as provocative. Political assumptions that China cannot rise peacefully as a major power could become a self-fulfilling prophesy.
Richard Woolcott was formerly Secretary, Department of Foreign Affairs and Trade and President of the UN Security Council.
This article was published on John Menadue's blog 'Pearls and Irritations' on 1 August 2016 under the title: 'The South China Sea, China, Philippines, Australia and the U.S.'. It is republished with permission.
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