7 - 8 - 2020 | 7:41
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China vs US or China vs Law: How Europe Can Make the Difference

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Terrorism, a belligerent Russia, and the refugee crisis are no excuses for Europe forgetting its international duties, like the preservation of the rules-based world order. The EU must affirm its commitment to international law by supporting the Permanent Court of Arbitration's ruling that China has no claim to expanded control of the South China Sea. The EU and the international community can show that this conflict is not China vs USA, but China vs international law.


Europe is far too complacent in leaving the United States alone to uphold the liberal global order that was established by the United States and Western Europe following the end of World War Two. The world cannot afford continued European naval-gazing as this order crumbles. One immediate area of concern is Europe's failure to respond affirmatively to the Permanent Court of Arbitration's (PCA) ruling in the Philippines v. China case that the People's Republic has no claim to expanded control of the South China Sea.

European leaders are unable to agree on a common response to the PCA decision, instead weakly stating so far that they have no position on the dispute between the Philippines and China. But this is not about supporting one country over another, it is about supporting international law in the face of revisionism. Given the challenges Russia has created with violations of international law in Europe, it should be easy for the EU to issue an opinion stating that the ruling of the international tribunal must be respected. Furthermore, European states need to support the US and other Asian-Pacific nations that seek to uphold international law via Freedom of Navigation Operations (FONOps).

According to the founding documents of the European Union, Europe is a zone of peace where disputes are resolved through diplomacy and the rule of law. European countries have attempted to export this approach to international relations beyond the EU. The European Union portends to be a world power: the EU even has its own Foreign Minister. It is therefore curious, that when an excellent opportunity arises to uphold international law in a peaceful manner, that EU countries abdicate their international responsibilities. The EU says it will ‘study' the ruling, but such a statement is absurd and dangerously undermines the rule of law the EU claims to uphold. There are concerns among members about upsetting the trade relationship with China – in particular from eastern European states that China has been wooing with trade contracts. I wonder how they would feel if the rest of the EU and the US abandoned Eastern Europe and international law to Russia for the sake of trade? The German economy has taken a massive hit because Chancellor Merkel issues sanctions against Russia precisely to defend international law and the EU's newest members.

Those European countries that might feel the PCA is out of bounds, have no support for their argument. There is no doubt that the PCA has jurisdiction over the case according to Article 288(1) in accordance with Part XV of the United Nations Convention on the Law of the Seas (UNCLOS). Furthermore, to avoid ‘politics' the tribunal carefully separated the 15 submissions from the Philippines to rule exclusively on law of the seas disputes, rather than the issue of sovereignty at large. The PCA stated in the preliminary ruling that rulings on jurisdiction are consistent to "ensure that its decision neither advances nor detracts from either Party's claim to land sovereignty." Thus the ruling by the PCA that China, as a signature nation of UNCLOS, is in violation of the 1982 treaty, is valid and does not need to be studied by the EU as much as it needs to be supported. EU states need to demonstrate some collective backbone vis-à-vis Chinese pressure.  Croatia's argument that any final statement doesn't event mention UNCLOS is loathsome.

China refuses to acknowledge the ruling, claiming that it is "illegal" and that the PCA has no jurisdiction in the case. But the PRC's lawyers need to go back and read the UNCLOS Convention. Under Part XV, section 2, both the Philippines and the PRC are bound to compulsory procedures for dispute resolution with a binding decision. Because the PRC did not proscribe an alternate venue of resolution, Beijing accepted the default treaty position specified in Annex VII thus making the PCA the formal, legally binding forum for this dispute. Although China's failure to appear at the court harms the process, the PRC was kept informed of Court proceedings and was always provided with an opportunity to respond. A failure to engage with the PCA does not nullify its jurisdiction nor the legality of its findings given the PRC's UNCLOS obligations.

At this point, the reader is surely wondering, what does all of this legalese have to do with the European Union? With refugees flooding in from the Middle East, a revanchist Russia and rising domestic terrorism, Europe has enough to deal with. This argument, however, is vacuous. Great powers need to be able to walk and chew gum at the same time. Constituent countries in the EU such as Britain, France and Germany – never mind the wider EU – have an obligation to uphold the rule of law around the world. At the moment they have forsaken this responsibility, instead leaving it to the United States to face down the Chinese as to the legality of Beijing's actions in the South China Sea. This is very dangerous.

If the US is the sole great power conducting Freedom of Navigation (FON) operations in the South China Sea, a conflict between China and international law becomes instead a conflict between China and the United States. If European states support the ruling of The Hague tribunal, then the conflict is internationalized. This will de-escalate tensions, removing it from the dangerous realm of US-China competition. Instead, with European states performing FON operations it will be China against ‘international law' backed by the global community at large, not simply China's frenemy the United States. China cannot blame the situation on the US if the weight of the international community is behind the PCA ruling.



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