China is facing a potential decision point in its moves to assert its claims over much of the South China Sea. Beijing has reportedly told some Asian nations that it may withdraw from the United Nations Convention on the Law of the Sea (UNCLOS) if the ruling by the Permanent Court of Arbitration in The Hague, expected within days, goes against China’s interests. The court case revolves around China’s claims to islands in the South China Sea also claimed by the Philippines — or more precisely, whether the islands fit the definition of islands under UNCLOS and thus grant their owner certain maritime territorial claims. The purported threat to withdraw from UNCLOS follows a similar report that China would consider expanding its Air Defense Identification Zone (ADIZ) over the whole of its claimed territories in the South China Sea if the court ruling is not in its favor.
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On the one hand, neither of China’s reported threats carry much immediate meaning. First, Beijing has already said it considers the court ruling illegitimate, whatever the outcome, and refused to even take part in the hearing on the case. Second, a withdrawal from UNCLOS does not necessarily expand China’s options any more than simply ignoring or selectively interpreting UNCLOS. Finally, despite the uproar over China’s expansion of its ADIZ over the East China Sea in 2013, the announcement had little real effect on air traffic.
On the other hand, Beijing’s recent actions and comments suggest that it is feeling growing international pressure to curtail its territorial claims and actions in the South and East China seas. China has subtly altered its basic justification for claiming the maritime territory it has, now arguing not that the occupation of islands justifies the claim but rather that the possession of the water justifies the occupation of the islands. And following a recent increase in confrontations between Chinese fishing boats and Indonesian authorities near the Natuna Islands, China simply asserted that those were traditional Chinese fishing grounds — enough justification for the actions of the fishermen. Additionally, China continues to accuse other countries, particularly the United States and Japan, of double standards when it comes to the rights of freedom of navigation in the region.
The reported threat to leave UNCLOS is in some ways like North Korea’s repeated threat — which it eventually carried out — to withdraw from the Nuclear Non-Proliferation Treaty. Pyongyang abided by neither the letter nor the spirit of the treaty when it was a signatory, yet participation brought certain self-imposed constraints and created a space for a common dialogue with others. In addition, the threat of leaving shaped the behavior of other countries that sought to pre-empt such an “extreme” action.
China already selectively interprets the UNCLOS regarding midpoints, definitions of islands and what constitutes legitimate maritime action within its claimed waters, and Beijing refuses to participate in the Hague case (despite the arbitration fitting with the UNCLOS mechanisms). But the threat to withdraw from UNCLOS is an extreme action that, from Beijing’s perspective, is something other nations will want to avoid.