How world powers break international law

Chinese President Xi Jinping (left) and US President Barack Obama have a talk before heading into their second meeting at the Annenberg Retreat, California, USA, on June 8, 2013. (Xinhua/Lan Hongguang)

What you need to know:

  • Today, the United States and China serve as prime examples of a unilateralist approach to international relations, even as they aver support for strengthening global rules and institutions.
  • The US has refused to join key international treaties — for example, the 1982 UN Convention on the Law of the Sea, the 1997 UN Convention on the Law of the Non-Navigational Uses of International Watercourses (which has not yet entered into force), and the 1998 International Criminal Court Statute.
  • While China ratified UNCLOS, it then reinterpreted the provisions to justify cartographic aggression in the South and East China Seas.

On the face of it, China’s recent declaration of an air defence identification zone (Adiz) extending to territories it does not control has nothing in common with America’s arrest and strip-search of a New York-based Indian diplomat for allegedly underpaying a housekeeper she had brought with her from India.

In fact, these episodes epitomise both powers’ unilateralist approach to international law.

A just, rules-based global order has long been touted by powerful states as essential for international peace and security.

Yet there is a long history of major powers flouting international law while using it against other states.

The League of Nations failed because it could not punish or deter such behaviour. Today, the United States and China serve as prime examples of a unilateralist approach to international relations, even as they aver support for strengthening global rules and institutions.

Consider the US, which has refused to join key international treaties — for example, the 1982 UN Convention on the Law of the Sea, the 1997 UN Convention on the Law of the Non-Navigational Uses of International Watercourses (which has not yet entered into force), and the 1998 International Criminal Court Statute.

Indeed, unilateralism remains the leitmotif of US foreign policy, and this is also reflected in its international interventions, whether cyber-warfare and surveillance, drone attacks, or efforts to bring about regime change.

Meanwhile, China’s growing geopolitical heft has led to muscle-flexing and territorial claims in Asia that disregard international norms. China rejects some of the same treaties that the US has declined to join, including the ICC Statute and the Convention on the Law of the Non-Navigational Uses of International Watercourses.

MIGHT REMAINS RIGHT

Indeed, despite their geopolitical dissonance, the two powers have much in common when it comes to how they approach international law.

For example, the precedent that the US set in a 1984 International Court of Justice case filed by Nicaragua still resonates in China, underscoring that might remains right in international relations.

The ICJ held that America violated international law both by supporting the contras in their insurrection against the Nicaraguan government and by mining Nicaragua’s harbours.

But the US prevented Nicaragua from obtaining any compensation by vetoing UN Security Council resolutions that called for enforcement of the ICJ’s judgment.

While China ratified UNCLOS, it then reinterpreted the provisions to justify cartographic aggression in the South and East China Seas. Worse still, China has refused to accept the UNCLOS dispute-settlement mechanism, thereby remaining unfettered in altering facts on the ground.

Despite a widely held belief that the current international system is based on rules, the fact is that major powers are rule makers and rule imposers, not rule takers. They have a propensity to violate or manipulate international law when it is in their interest to do so.

If universal conformity to a rules-based international order still seems like a distant prospect, a good reason is that countries that should be leading the charge often behave like rogue states.

Prof Chellaney teaches Strategic Studies at the New Delhi-based Centre for Policy Research (c): Project Syndicate, 2013.(www.project-syndicate.org)