By Nicholas Welsh, an intern in the Lowy Institute's International Security Program.
As the dust begins to settle after the Permanent Court of Arbitration's landmark ruling on Tuesday, many countries find themselves in the unenviable position of deciding whether or not to take sides. From the outset however, it is important to understand that 'choosing sides' in this particular case is not simply about siding with China's maritime territory claims or those of the Philippines (often portrayed as the 'US side').
Beyond the strategic and economic impacts of classifying features as rocks instead of islands, this case will set a precedent for many international dispute resolution cases for years to come. One side argues that the ruling of the tribunal is legally binding; the other that the entire procedure is illegitimate and void. With no enforcement mechanism (apart from international pressure) debate is now raging; not between China and the Philippines, but between those in support of multilateral international law structures and those who consider them invalid.
Following the ruling, state-run newspaper China Daily published a front-page map of the globe (reproduced above) highlighting an overwhelming global support for China's position, with more than 70 nations calling for bilateral negotiation in favour of arbitration as a dispute resolution mechanism. Such a high degree of support, by extension, justifies China ignoring the ruling as 'null and void'. The same map indicates that only five nations consider the tribunal's ruling to be legally binding, suggesting a distinct lack of faith in international organisations and international law as a concept.
While the publication is a clear and fascinating example of state media bias, it does raise an interesting question: where do the world's nations stand now that the ruling has been handed down? Does China's claim of 70 supporters hold up to scrutiny, and are only five countries truly supportive of the tribunal as a means of dispute resolution?
At the risk of ruining the suspense, the short answer to both questions is no.
The Asia Maritime Transparency Initiative (part of the Center for Strategic and International Studies) released in June what it calls the 'Arbitration Support Tracker', which analysed publicly available official statements in order to determine where each country stands. According to this data, prior to the ruling 10 countries had publicly confirmed their support while 47 others released no statements that confirmed they backed China. Of these, 21 are members of the Arab League. China claims the League released a joint statement supporting China following the Seventh Ministerial Meeting of the China-Arab Cooperation Forum, though this statement does not appear to be publicly accessible. Another four nations denied China's claim of their support (Cambodia, Fiji, Poland and Slovenia).
Also missing from China Daily's map is a strangely silent 'normative power'; the EU. Its apparent lack of support for UNCLOS comes as some surprise, particularly considering that almost five months earlier, the EU released a statement calling on all parties to resolve disputes 'in accordance with international law including UNCLOS and its arbitration procedures', a declaration with which Albania, Bosnia and Herzegovina, Liechtenstein, Moldova and Montenegro also aligned themselves.
Now, almost a week on from the tribunal's ruling, the numbers paint a very different picture. Of those 57 who (supposedly) challenged the legitimacy of the process, three have spoken up to reject the ruling: China, Taiwan and Pakistan. The remaining 54 supportive nations have, thus far, refrained from publicly challenging the ruling. In comparison, 34 nations have publicly called for the ruling to be respected, with a further four acknowledging the ruling positively without supporting its binding nature.
Global support for China's right to ignore the tribunal is not as widespread as state-media would depict, but the lack of any enforcement mechanism in the ruling makes the next step for any nation uncertain. For all countries, whether staying mute or pledging support one way or the other, it is important to look beyond the traditional geopolitical sphere to the larger picture, and for nations to speak up in favour of the world system they want to see in the future. If states believe in a multilateral rules based order, then support for the tribunal and its ruling needs to be made clear. Multilateralism and third-party dispute resolution is not always the answer, but it needs to be available as a legitimate and credible option available to states in deadlock. How states react to this ruling will set a precedent regardless, and it is in everyone's interest that this precedent be as clear and as peaceful as possible.
Image source China Daily via Hindustan Times