International jurisprudence, great powers and the UN – Andrew Blackie

On 7 July 2016, during a visit to Beijing, United Nations (“UN”) the then Secretary-General Ban Ki-moon met with Chinese President Xi Jinping and Foreign Minister Wang Yi. The timing was unfortunate, owing to the imminent ruling of the United Nations Convention on the Law of the Sea (“UNCLOS”) Arbitral Tribunal on the South China Sea, handed down less than a week later. Coupled with strenuous protestations of UN neutrality, it was difficult not to read the mission as a consolation tour.

Following the release of the award on 12 July, the UN response was even more lacklustre. A spokesperson for the Secretary-General declared:

The UN doesn’t have a position on the legal and procedural merits of the case or on the disputed claims… As for the details concerning the settlements of disputes mechanism under [UNCLOS]… the Secretary-General does not have anything to add in this regard.

This diffident statement, along with a post on the UN’s official Weibo micro-blog describing the Permanent Court of Arbitration (“PCA”) as having “nothing to do” with the UN, was widely circulated within China, contributing to a vociferous campaign on the part of government and state media to dismiss the arbitration as a plot by the US.

Of course, it is technically correct that the PCA is not a formal part of the UN system, unlike the International Court of Justice (“ICJ”). However, UNCLOS is a convention negotiated and ratified under UN auspices; weaken the legitimacy or substance of a UN convention, as China’s response to the arbitration did, and the UN itself is weakened.

Beyond the South China Sea arbitration, the long-term record of international jurisprudence involving permanent members of the Security Council is decidedly problematic. It has become increasingly common in recent years to stress the importance of a rules-based international order, especially in the Asia-Pacific region. However, the ability of P5 states to evade or flout international rulings through avenues  unavailable to smaller states encourages the perception of two sets of rules, which undermines the international rule of law as a whole.

The most notorious instance of non-compliance by a P5 member state remains the US’s defiance of the ICJ in the 1986 Nicaragua case. The US used its veto power to defeat a draft Security Council resolution calling for “full and immediate compliance with the judgment”. The then-US Ambassador to the UN memorably described the ICJ as a “semi-legal, semi-juridical, semi-political body, which nations sometimes accept and sometimes don’t”. Subsequent to the South China Sea ruling, this quote was dredged up in China to portray US support for the arbitration as hypocritical.

Other examples include Russia’s non-recognition of the Arctic Sunrise case and, depending on one’s perspective, the UK’s maintenance of a “Marine Protected Area” around the Chagos Islands despite a 2015 arbitration ruling that its proclamation was incompatible with UNCLOS.

UN involvement in each of these cases has been minimal. To an extent, this reflects the duality of the UN, as both an international organisation comprising the Secretariat and specialised agencies, and a grouping of member states. Partially it also arises from the differing legal status of international institutions: whereas the ICJ and International Tribunal for the Law of the Sea (“ITLOS”) are UN institutions, the PCA and ad hoc tribunals are separate. However, if the rules-based international order is to remain intact in an increasingly multipolar world, the UN has scope to assume a more active role. This is especially the case when international jurisprudence involves a P5 power, as the Security Council is incapacitated in the event of an adverse ruling against one of its members.

An increased role for the UN would merely recognise the reality that no state has a perfect record on international law. In calling for compliance with international rulings, the UN is able to confer a degree of legitimacy that nation-states are not. Practically, this could be accomplished through the Secretariat and specialised agencies following up to support, mediate, and monitor compliance. There is precedent for this: following a 2002 ICJ ruling on the Bakassi peninsula, disputed between Cameroon and Nigeria, then-Secretary-General Kofi Annan led an intensive mediation process between the two states. As a result, Nigeria, which originally announced it would disregard the judgment, eventually transferred the contested territory to Cameroon in accordance with the judgment.

With a new Secretary-General in office from January 2017, it is reasonable that the international community’s expectations for the UN to serve as the guardian of the international order will extend to upholding the international rule of law.

Andrew Blackie is an International Studies/Law graduate who has lived and worked in China for over two years. His research interests include the politics, history and culture of the Asia-Pacific and international law. The views expressed in this piece are solely his own.