An International Tribunal Ruled Against China in 2016 and Beijing Shrugged

Picture the most one-sided legal victory in modern maritime history. Five arbitrators spend three years on a case, issue a ruling of some five hundred pages, and rule for the plaintiff on nearly every point that matters. The losing party calls the whole thing "null and void" and goes back to pouring concrete on the reefs. That is not a thought experiment. It happened on July 12, 2016, and it is the cleanest lesson in a generation about what international law can and cannot do.

Let me define terms first, because the argument depends on them. Arbitration here means a binding proceeding under the 1982 United Nations Convention on the Law of the Sea, usually shortened to UNCLOS. The nine-dash line is the U-shaped boundary that Beijing draws on its maps across roughly most of the South China Sea. Historic rights is the claim that long use of waters gives a state special rights in them, apart from what a treaty grants. Law without power is my phrase for a ruling that is correct, binding on paper, and unenforced in fact.

My thesis has three parts. One, the tribunal got the law right. Two, China's refusal proves that a rule is only as strong as the coalition willing to back it. Three, none of that is an argument for abandoning the law, and the conservative debate over whether America should join the Convention has to be fought on those terms.

How a shoal became a lawsuit

The story starts at Scarborough Shoal, a ring of rocks and reef about 120 nautical miles off the main Philippine island of Luzon. In April 2012, a Philippine Navy ship found Chinese fishing boats inside the shoal's lagoon and moved to inspect them. Chinese government surveillance vessels arrived and placed themselves between the Philippine ship and the fishermen. A standoff of about two months followed. The Philippines said both sides had agreed to withdraw, and its vessels left. The Chinese did not, and China said no such deal existed. From that point on, China controlled access to the shoal.

Manila had tried diplomacy and gotten nowhere. So on January 22, 2013, the Philippines, under President Benigno Aquino III, did something quiet and shrewd. It filed a notice and statement of claim under Annex VII of UNCLOS, the part of the Convention that lets a party start arbitration when the other side will not settle a dispute. The Permanent Court of Arbitration in The Hague served as the registry. The Philippines asked for rulings on what China may claim, not on who owns which rock. It stayed away from sovereignty on purpose, because the Convention does not give tribunals power over sovereignty questions.

China refused to take part. It sent no lawyers, appointed no arbitrator, and in December 2014 published a position paper saying the tribunal had no jurisdiction. Here is the part Beijing's critics sometimes miss: the Convention anticipates this. Under its terms, a party's absence does not stop the case. The tribunal had to satisfy itself that it had jurisdiction and that the claim was well founded, and it did both with care. On October 29, 2015, it ruled that it had jurisdiction over several of the Philippine submissions. Then it went to the merits.

China had ratified UNCLOS in 1996. Remember that. Beijing was not a stranger to the treaty. It signed the contract and then declined to honor the umpire.

What the tribunal held

The July 12, 2016 award is long, but its holdings can be stated in plain sentences.

First, on historic rights. The tribunal found that China had no legal basis to claim historic rights to resources inside the sea areas within the nine-dash line, beyond the rights the Convention itself grants. The Convention sets out exclusive economic zones, out to 200 nautical miles from a country's coast, and gives the coastal state sovereign rights over resources there. Whatever Chinese fishermen and traders had done over the centuries, the tribunal held, the Convention superseded it where it conflicted with those zones. The line itself has an odd pedigree. It appeared on Chinese maps in the 1940s, and Beijing put it in front of the United Nations in a note in May 2009, without ever saying precisely what it claimed. Vagueness was the point. A claim never fully stated is a claim never fully tested.

Second, on what counts as an island. This holding mattered most. Article 121 of the Convention is where the tribunal found its tool. Paragraph 3 says, exactly:

Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.

The tribunal read that sentence closely and applied it to the Spratly Islands. It found that none of the high-tide features in the Spratlys, including the largest, Itu Aba, which Taiwan administers, qualified as a full island able to generate a 200-mile economic zone. The tribunal called them legally "rocks". That left China without a legal route to project an economic zone from the Spratlys at all.

Third, on the reefs. Mischief Reef and Second Thomas Shoal were submerged at high tide in their natural condition, so neither generates a territorial sea or any larger zone of its own. The tribunal held that both lie within the Philippines' exclusive economic zone and continental shelf. That put Chinese construction on Mischief Reef inside Philippine waters.

Fourth, on conduct. The tribunal found that China had violated Philippine sovereign rights in that zone by interfering with Philippine petroleum exploration, by purporting to prohibit fishing by Philippine vessels, by failing to prevent Chinese fishermen from fishing there, and by building an artificial island on Mischief Reef without authorization. It also found that the large-scale land reclamation and island building had done severe harm to the coral reef environment, that Chinese authorities knew of the harvesting of endangered sea turtles, coral and giant clams and did not stop it, and that China had aggravated the dispute during the proceedings. One more point deserves mention: the tribunal ruled that Chinese law enforcement vessels at Scarborough Shoal had created a serious risk of collision with Philippine ships. It also held that fishermen from the Philippines, China and other countries all had traditional fishing rights at Scarborough, and that China had violated those of the Philippine fishermen by halting their access. Even in victory, the award did not hand Manila every card: it expressly declined to decide sovereignty.

China's answer

China's response arrived the same day. The foreign ministry said the award was "null and void" and had no binding force. Chinese officials said the country would not accept or recognize it. Xi Jinping said China's territorial sovereignty and interests in the South China Sea would not be affected by the ruling under any circumstances. Foreign Minister Wang Yi called the proceeding a farce.

Notice what Beijing did not do. It did not argue the tribunal got Article 121 wrong, because that argument would have required engaging with the text of the sentence quoted above. It argued about the forum. When a party will not argue the text, the text usually favors the other side.

Then there is the matter of actions. In September 2015, standing in the Rose Garden next to President Obama, Xi said China did not intend to militarize the islands in the Spratly chain. The islands that followed carried runways, hangars and missile shelters. Whatever you think of that promise, the record shows what happened to the reefs. This is the heart of the lesson: China's words in a garden and its work on a reef were two separate things, and only one of them could be photographed from orbit.

The steelman: what the skeptics of the award say

An honest conservative should state the opposing case at its best. Critics of the tribunal, and of UNCLOS arbitration generally, make four arguments that deserve a fair hearing.

One, the proceeding was one-sided by design. China did not take part, and a case without the defendant is not a trial but a hearing. A conclusion reached when one side never speaks has less claim on our trust.

Two, sovereignty questions were hidden in the briefs. China argued the Philippines had really sued over who owns the islands, which the tribunal cannot decide, and had dressed it up as a dispute about maritime entitlements. The tribunal took that argument seriously and still found jurisdiction, which some call a stretch.

Three, international law is made by the strong. Major powers accept tribunals when they win and walk away when they lose. America itself stopped taking part in the International Court of Justice's Nicaragua case after the Court ruled in 1984 that it had jurisdiction, and the Court went on to decide against the United States in 1986. If Washington did it, the argument goes, it has little standing to lecture Beijing.

Four, a toothless ruling hurts the law. Every ignored award, the critics say, teaches the world that the rules are optional.

The answer, point by point

Now the rebuttal, one premise at a time.

One: the absence of China is China's choice. A defendant cannot veto a case by not showing up, and the Convention says so. The tribunal tested its own jurisdiction on the questions it heard, the way a good judge does when no lawyer is there to object, and it narrowed what it would decide. China had every chance to appear and every ability to hire the best counsel money can buy. A party that boycotts a tribunal it agreed to in a treaty it ratified has no right to complain that the tribunal listened only to the other side.

Two: on sovereignty, the tribunal drew its own limit. It did not say who owns Scarborough. It did not say who owns any Spratly feature. It said what entitlements each feature can generate, which is a question the Convention plainly assigns it. The award leaves the sovereignty dispute exactly where it was, and that restraint is the best evidence the ruling was not a political stunt.

Three: America's walkout from the Nicaragua case is a real weakness, and it should humble us. It does not change what the tribunal held. A principle is not false because someone broke it. If anything, the Nicaragua episode argues for strengthening our own credibility by adopting the Convention's dispute system, not by treating it as a stage prop. A country that wants China to obey a ruling is on firmer ground when its own signature is on the document.

Four: the claim that an ignored ruling hurts the law reverses cause and effect. The ruling did not create the violation. It documented the violation, with the authority of five judges, and turned a hazy argument into a record. Records matter. They shape what allies will say, what insurers will price, what lawyers will cite, and what historians will conclude. A criminal who ignores a verdict is still a convicted criminal.

I will give the skeptics one point outright. Law without enforcement is a poor substitute for strength. The tribunal had no navy. Its judgment is only as strong as the willingness of other nations to treat it as binding, and for that willingness the key words are "other nations". Whether Washington, Tokyo, Canberra, Manila and the capitals of Southeast Asia act on the ruling depends on whether those governments choose to back it with ships, trade and diplomacy. That is a question of power and resolve, and no judge can answer it. The best analogy is a deed to a house. The deed matters. But it matters most when a sheriff will evict the squatter, and what the sheriff looks like is a political question, not a legal one.

The Founding angle: treaties, advice and consent

Here the conservative debate gets interesting. The Constitution gives the treaty power to the President, but with a leash. Article II, Section 2 says the President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur". That two-thirds rule was designed to make treaties hard to pass, so that foreign entanglements would require broad agreement, not a thin majority. You can read the whole clause on the Constitution page.

America has signed UNCLOS but never ratified it. President Reagan declined to sign the Convention in 1982 because of its seabed mining provisions, Part XI, which created an international authority to regulate the mining of deep seabed minerals and structured it in a way he considered hostile to free enterprise. His administration did state in 1983 that America would accept and act in accordance with the Convention's provisions on navigation, overflight and other traditional uses of the ocean. An agreement in 1994 revised Part XI to meet many of the American objections, and the Senate Foreign Relations Committee voted to report the Convention favorably in 2007. It never reached a floor vote.

The conservative debate: ratify or refuse?

Serious conservatives sit on both sides, and neither side is foolish.

The case for ratification runs like this. Supporters say joining would help. A seat at the table lets America influence amendments, claim continental shelf rights in the Arctic and elsewhere, and speak with full standing when it accuses others of violating the Convention. America already behaves as if the navigation provisions bind it, so formal accession would cost little. And the nine-dash ruling shows the Convention can produce a verdict useful to a U.S. ally.

The case against is also principled. Opponents say the Convention hands a piece of American sovereignty to an international body, however well drafted. They distrust the seabed authority, doubt that revenue-sharing provisions serve American interests, and note that the Navy has operated freely for decades without ratification, supported by its own power. They add the observation that China ratified and ignored the treaty anyway, so the Convention is no talisman.

I will tell you where I come down on the narrow point, and then explain what matters more. The strongest argument against ratification is sovereignty, and the strongest argument for it is credibility. Reasonable constitutionalists weigh those differently. What neither side can afford is the argument that the ruling proves the Convention is worthless. It proves the opposite. The tribunal read Article 121(3) the way a textualist reads a statute, and applied it, and the result favored an American treaty ally against a rival power. If a rules-based system produced that result in a case the weaker side was expected to lose, throwing out the system is a strange response.

What the shrug teaches

Take the lesson that matters most. Beijing did not ignore the tribunal because it had a better legal argument. It ignored it because it could. The distance between a ruling and its enforcement was the space where Chinese policy lived, and building islands there was the way to occupy it.

That is why the case belongs next to the discussions of strategy and not only law. The Taiwan Relations Act of 1979, which The Taiwan Relations Act of 1979 Is Not a Treaty, So What Does It Promise walks through, is another example of an American commitment that rests on statute and resolve and not on a treaty's text. The Navy's willingness to sail through contested waters, as when When Clinton Sent Two Carrier Groups to the Taiwan Strait in 1996, is the kind of enforcement a tribunal cannot supply. And the industrial base behind a fleet, the subject of The Shipbuilding Gap with China Is an Industrial Story Before a Navy Story, decides whether a principle stays defended for a decade or only a season. If you want to know why the ships matter, Six Arguments Against a Strong Navy, and Why Each One Sinks answers the skeptics one by one.

There is also a warning about the language of fate. Some argue the clash between a rising and a ruling power cannot be avoided, a claim I take apart in The Thucydides Trap Is a Bad Excuse for Giving Ground to Beijing. The 2016 award points the other way. It shows that this dispute turned on choices, on a Philippine decision to sue and a Chinese decision to ignore, and choices can be made differently. And alliances carry their own obligations, which is a good reason to read what an alliance actually says, as Read the North Atlantic Treaty, All Fourteen Articles Take Ten Minutes invites you to do for NATO.

One more observation, and it is the wry one. For a country that treats the law of the sea as a Western plot, China has been remarkably eager to cite it whenever a fishing boat of another flag came close to one of its reefs. A rulebook is a nuisance when it binds you and a masterpiece when it binds the other fellow. That is true of every great power, ours included, which is why the argument for American ratification deserves honest attention and not a reflex.

The case in brief

1. The tribunal's July 12, 2016 award rejected China's historic-rights claim inside the nine-dash line, held that no Spratly feature generates an economic zone, and found Chinese conduct unlawful.
2. China refused to take part and rejected the award, which shows that law without power behind it is a record, not a remedy.
3. The ruling was not a failure of law. It documented a violation, gave allies a text to cite, and favored a U.S. treaty ally on a close reading of Article 121(3).
4. Whether America should ratify UNCLOS is a real debate between sovereignty and credibility, to be settled by the Senate's two-thirds vote under Article II, Section 2.
5. Enforcement is a question of ships, alliances and resolve, so the verdict is worth only what the free nations choose to make of it.

What you can do: read Article 121 of the Convention and Article II, Section 2 of the Constitution side by side, then write your senators and tell them which side of the ratification debate you are on and why.