Pogies, Christian R. J.

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An ideal at seaInternational law and a 'conflict through norm-genesis' approachChristian Pogies 2019-09-03T12:00:54International law is supposed to establish peace and prevent inter-state conflicts.At the same time, it is the central means for states to legitimize and communicatetheir claims in respect of the international community. For instance, the UnitedNations Convention on the Law of the Sea (UNCLOS) was designed to act as the‘constitution for the oceans’ and to ‘promote the maintenance of international peaceand security’ (Koh, 1982). Today, UNCLOS and customary international law (CIL)lie at the heart of states’ legitimation strategies when making overlapping claimsto territory and/or maritime zones in the South China Sea. Considering severalfactors, the genesis of legal norms could not only be seen as establishing stabilityand peace, but also as creating new or exacerbating existing conflicts.Although there were conflicts over maritime features in the South China Sea priorto UNCLOS – inter alia due to the history of colonialism and former peace treaties– its creation eventually forced states to act and gave them the opportunity to takeadvantage of uniformly regulated maritime zones. In order to end some of thecontinuing legal uncertainties, the Philippines instituted arbitration proceedingsagainst China in 2013, under the dispute settlement mechanisms of the Convention.The main aim was to seek a decision from the Permanent Court of Arbitration (PCA)on the legal status of several maritime features and the legality of parts of China’sclaims to maritime space. However, China refused to participate in the proceedings,claiming that the PCA would have misinterpreted UNCLOS and lacked jurisdiction.In addition, Chinese media and academics accused the arbitral tribunal of ignoringthe region’s legal tradition, having a Western bias and serving as a proxy for aninternational legal system that the West would still try to dominate. It becomes clearfrom this that the genesis of legal norms does not always establish stability andpeace in international relations.Critical approaches to the peace through law narrativePeace through law is probably one of the strongest and most prevalent narratives ofinternational law. In 1908, Lassa Oppenheim stated, ‘The science of international law[…] is merely a means to certain ends outside itself. And these ends are the same,as those for which international law has grown up and is still growing – primarily,peace among the nations and the governance of their intercourse by what makesfor order and is right and just; secondarily, the peaceable settlement of internationaldisputes […]’ (Oppenheim, 1908). International relations scholars have long beensceptical about this idea of international law as a suitable tool for creating a stableand peaceful international system. In particular, the school of thought of classicalrealism is reticent about the ability of international law to bind powerful states: in the- 1 -end, politics prevails, not the law. Since the era of decolonisation at the latest, thefield of international law has also increasingly begun to critically engage with its rolein the international state system. Academics today speak of international law as an‘argumentative praxis’, as a ‘language of politics’ and ‘justification’ (Koskenniemi,2007; Schuppert, 2019). Monica Hakimi recently argued that one of the things thatinternational law does is that it ‘affirmatively enables conflict’ (Hakimi, 2017).Norm-Genesis: The United Nations Convention on the Law of the SeaUNCLOS was adopted in 1982 after nine years of negotiations and entered intoforce in 1994 with its sixtieth ratification. Its preamble reads, ‘[p]rompted by thedesire to settle, in a spirit of mutual understanding and cooperation, all issuesrelating to the law of the sea and aware of the historic significance of this Conventionas an important contribution to the maintenance of peace, justice and progress forall peoples of the world’ (UNCLOS). In the case of the South China Sea, however,the interpretation of UNCLOS is highly contested and the new legal text becameinterwoven with CIL and the history of colonialism.CIL comes into play because of the modes of territorial acquisition. These modesdefine who has a possible claim to sovereignty over land territory, for example,by discovery, and thus often connects with the historical image of a state. Severalcountries bordering the South China Sea refer to this argument of terra nullius. Chinais certainly the most prominent example and argues that its claim to sovereigntywould date back to the early Han Dynasty (202 BC–220 AD).For all states bordering the South China Sea, the emerging colonialism in the 19thcentury and the subsequent Second World War represented a turning point in theirability to exercise sovereignty. While the maritime features in the South China Seawere initially in the possession of the colonial powers of France, Great Britain,and the United States, some of them were occupied by Japan in the course of theSecond World War. With regard to the post-war period, an additional layer wasadded to the question of possession due to differing interpretations of peace treaties,declarations and proclamations.UNCLOS, on the other hand, also provides guidelines on when a claim tosovereignty can be asserted. The convention defined the legal categories of islands(Art. 121, 1&2), rocks (Art. 121, 3) and low-tide elevations (Art. 13, 1&2). Whilesovereignty over islands and rocks can be claimed in accordance with CIL, nosovereignty may be asserted over low-tide elevations. In addition, islands and rocksgenerate different claims to maritime zones, with different jurisdictional rights, whilelow-tide elevations are unable to generate maritime zones on their own.This led to a rise in valuation of the legal objects considered as islands, as they areentitled to a Territorial Sea (Part II), Exclusive Economic Zone (EEZ) (Part V) and apossible Continental Shelf (Part VI) claim. The EEZ, in particular, must be mentionedhere: it entails – in comparison to the territorial sea – only limited sovereign rightsand jurisdiction, but grants the exploitation of all submarine resources up to 200nautical miles into the sea from the coastline. Rocks, on the other hand, only- 2 -generate a 12 nautical mile territorial sea, and low-tide elevations do not lead to anydirect claims.Since most coastal states have already occupied many maritime features and all layclaim to maritime zones in the South China Sea, these claims often overlap – dueto the sheer number of maritime features and their often small size, as well as theunresolved sovereignty under CIL. Furthermore, the maritime features’ legal statusunder UNCLOS became contested in some cases. The key question is whethersovereignty over the occupied maritime features can be asserted under UNCLOS atall and, if so, which ones.Contestation: The ArbitrationThe Philippines instituted arbitration proceedings against China under the UNCLOSdispute settlement mechanisms in January 2013. The PCA declared its jurisdictionat the end of October 2015 and issued its final and binding award on 12 July 2016.Many observers saw the Philippines as the big winner, while China faced an almostworst-case scenario. Out of the fifteen submissions the Philippines made, thetribunal only rejected a minor one.The PCA’s denial of the historic rights claimed by China in the so-called Nine-Dash Line, which encompasses much of the South China Sea, is the most severesetback for the country in the award – while resulting in great advantages for manyothers (CML/17&18/2009). By defining China’s claims based on historical rightsas inconsistent with UNCLOS, the country is neither able to legally claim naturalresources in large parts of the disputed areas nor make any lawful attempts torestrict the interpretation of freedom of navigation in them.Moreover, with the PCA’s decision to define the largest maritime feature in theSouth China Sea, Itu Aba, as a rock under UNCLOS, none of the features currentlyoccupied by China can legally constitute an EEZ. With about 40 percent of theocean’s surface located in EEZs at present, the United States in particular isconcerned that a more restrictive view of the freedom of navigation therein couldprevail in the future. According to James Kraska it would acutely prevent the UnitedStates military from defending the country’s global interests.Finally, the arbitration tribunal decided to define three out of the seven featurescurrently occupied by China in the Spratly Islands as low-tide elevations. MischiefReef – China turned it into an artificial island in 2015 –, one of these low-tideelevations is located within the EEZ and on the continental shelf generated by thePhilippines mainland coast. China’s ongoing claim and occupation thus constitutes aviolation of the plaintiff state’s sovereign rights.China’s standpoint on the arbitration and its award has been summarized as the‘4-NOs’, meaning: ‘No Acceptance, No Participation, No Recognition and NoImplementation’ (Xiao Jianguo, 2016). While the country does not doubt the authorityof UNCLOS, it doubts the legitimacy of the PCA tribunal. For China, the Westwould have again misused international law and supported the Philippines in theirillegitimate arbitration proceeding, this in order to hinder China’s rise. This narrative- 3 -of international law as a tool of power that is used against the country dates backto the so-called ‘Century of Humiliation’ during the colonial era. In 1996, China’sthen-President Jiang Zemin urged an audience of lawyers in Beijing in the followingwords: ‘We must be adept at using international law as “a weapon” to defend theinterests of our state and maintain national pride’ (Wang quoted in Kittrie, 2016).Law and conflictFrom a conflict-theoretical perspective, the question of how states found theirperspective on the legal situation is just as relevant to a description of the disputesin the South China Sea as the question of what the valid legal claims of the partiesto the conflict are. By asking how instead of what, the sources of international lawand their genesis become the focus of research interests from a different angle.All states of the region base their claims not on military or economic power, but oninternational law. In 1982, there was hope that the existing conflicts in the SouthChina Sea could be resolved by the newly adopted UNCLOS. Today this hope mightbe dampened. As the South China Sea Arbitration has shown, UNCLOS becameentangled in a complex nexus of CIL and the history of colonialism.Although the creation of conflicts and/or their aggravation through the genesis ofinternational legal norms may seem paradoxical at first glance, the disputes in theSouth China Sea seem to provide indications for further reflection on this question.An approach that focuses on conflict through norm-genesis in international lawshould not, however, aim to deconstruct the ideal of peace through international law,but rather to make it recognizable as such. Christian R. J. Pogies is a student in the Master’s Programme in InternationalStudies/Peace and Conflict Research with a focus on Globalisation and Law at theGoethe University in Frankfurt. He works as a student assistant at the Max PlanckInstitute for European Legal History and is a member of the editorial team of theVölkerrechtsblog. Cite as: Christian Pogies, “An ideal at sea – International law and a ‘conflictthrough norm-genesis’ approach”, Völkerrechtsblog, 3 September 2019.- 4 -

An ideal at sea: International law and a 'conflict through norm-genesis' approach

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An ideal at sea: International law and a 'conflict through norm-genesis' approach

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