International Law as a Tool to Combat China

International Law as a Tool to Combat China*
Atsuko Kanehara**

Abstract
It is quite frequently said that China cannot unilaterally change the status quo by forciblemeans. This is perfectly true vis-à-vis international law. No States can change internationallaw unilaterally in order to justify their violations of existing international law rules. We
can find three elements here. First, “unilateral,” second, “international law,” and third,“forcible means.” First, regarding unilateralism, China has unilaterally claimed its historicalrights over extravagantly wide sea areas encircled by the so-called nine-dash line in theSouth China Sea. Second, concerning international law, China has been violating theUnited Nations Convention on the Law of the Sea (UNCLOS), the most important treaty
for regulating maritime issues. In a world-famous case, namely The South China Sea Case,the arbitral tribunal definitively denied the validity of the Chinese historic rights underUNCLOS. Third, by various aggressive conducts, China has posed a serious threat to othercountries not only in the South China Sea but also in the East China Sea. Based upon suchan understanding of the situations that China has created in the international dimension,
first, I will explain what wrong China is doing from the perspective of international law,which is my field. Second, I will consider a possible way to combat China from a Japaneseperspective.

M

y name is Atsuko Kanehara, Professor of Public International Law at Sophia
University, Tokyo, Japan. It is a great honor for me to have the opportunity to makea brief presentation on this occasion.

Introduction: What is Wrong with China from the Perspective of InternationalLaw?

It is almost the general recognition among all the participants here that “China has been engaged
in wrong-doing.” But, precisely speaking, what wrong is China doing? The starting point forconsidering the ways to combat China should be to establish an exact understanding as to whatwrong China is doing. Doctors need to diagnose first, before they treat their patients. The same
holds true with us.
Therefore, first, I will make clear the wrong that China has been doing. I will do this from a*This article is based on a presentation made by the author at the symposium “Chinaʼs Maritime
Ambitions in the First Island Chain and Beyond” held by JIIA and the Center for Strategic andInternational Studies (CSIS) on November 18, 2019. For more information, please visit the JIIA website
at https://www.jiia-jic.jp/en/events/2019/11/chinas-maritime-ambitions-in-the-first-island-chain-andbeyond.html.

** Atsuko Kanehara is President of the Japanese Society of International Law. She teaches internationallaw at Sophia University, Faculty of Law.

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Atsuko Kanehara

perspective of international law, which is my field.
It is quite frequently said that “China cannot unilaterally change international law by forciblemeans.” We can find three elements here: first, “unilateral,” second, “international law,” and third“forcible means.”
From the perspective of international law, I will take up these three points in this order.

1. “Unilateralism” under International Law

First, regarding “ unilateralism, ” China has unilaterally claimed its historical rights overextravagantly wide sea areas encircled by the so-called nine-dash line in the South China Sea.
In principle, international law is created based upon the agreements of sovereign States.
Sovereign States are not allowed to unilaterally create international law.
Sovereign States exist as part of international society and they are equal and independent.
Thus, there is no legislative authority that has the competence to enact laws with legally binding
force on all sovereign States. In place of an authoritative legislative organ, sovereign States create
international law by their mutual agreement. International law takes the forms of treaties andcustomary laws. We find the element of agreement among sovereign States in treaties and, to acertain degree, in customary laws, as well.
There are, however, some cases in which international law allows sovereign States to act
unilaterally. A typical example is as follows.
Coastal States are allowed to unilaterally establish the limits of their jurisdictional sea areas,such as territorial seas, exclusive economic zones (EEZs), and continental shelf. Nonetheless,I have to immediately add that in order to obtain validity with respect to other States, the limits
unilaterally set by coastal States should be in accordance with the relevant international law rules.
I can introduce to you a very famous part of the judgement rendered by the International Courtof Justice in the 1951 Fisheries Case.
Although it is true that the act of delimitation is necessarily a unilateral act, because only thecoastal State is competent to undertake it, the validity of the delimitation with regard to otherStates depends upon international law.” (emphasis added)
In a world-famous case, namely, The South China Sea Case, the arbitral tribunal definitively
denied the validity of the Chinese historic rights under the United Nations Convention on theLaw of the Sea (UNCLOS). UNCLOS is the most important treaty on the law of the sea. The
decision by the tribunal has a legally binding force on China. South Asian countries and othersin the world have not recognized any validity to the Chinese claims of historic rights in the South
China Sea. Accordingly, legally speaking, there is no room for the Chinese historic rights that are
unilaterally claimed by China to survive under UNCLOS. This unilateral claim by China and its
attitude to regard the decision as null and void are totally reproachable and, therefore, “wrong.”

2. “International law”
The second element for which to criticize China is its acts contrary to international law. As I
already mentioned, the most important international law currently for regulating maritime issues
is UNCLOS.
UNCLOS determines the width of jurisdictional sea areas and sea-bed, such as territorial seas,EEZs, and continental shelf. The so-called nine-dash line encloses extravagantly wide sea areas
over which China claims historic rights. This is totally contrary to UNCLOS and, thus, “wrong.”

3. “Forcible Means”
Third, international law prohibits both the use of force and the posing of threats by force. The
most important provision, in this regard, is Article 2, Paragraph 4 of the United Nations Charter,a multilateral treaty.
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International Law as a Tool to Combat China

Letʼs look concretely at Chinaʼs acts both in the South China Sea and in the East China Sea.
China has frequently dispatched its Coast Guard vessels to the territorial seas of neighboring
States. This is for the purpose of overtly demonstrating Chinaʼs sovereignty over those sea areas.
The Coast Guard vessels have been recently incorporated into the Chinese military under thecountryʼs legal system. Chinese fishing boats have also come to the territorial seas of neighboring
States, in some cases escorted by Chinaʼs Coast Guard vessels. The Chinese fishermen havesuddenly become militias. Even Chinaʼs militar y vessels enter the territorial seas of othercountries, including Japan.
In the East China Sea, particularly in the Japanese territorial sea surrounding the Senkaku
Islands, these kinds of conducts by China have been repeated almost periodically.
It is not always easy to precisely define what “the use of force” is, and what “the posing ofthreats by force” is, under international law. Thus, it is not an easy decision to make that Chinaʼsacts fall under the categories of the use of force and/or the posing of threats by force.
But, in reality, as a matter of fact, nobody can deny that these Chinese strategies of making
use of its Coast Guard vessels and fishermen as militias, and even its military vessels, have posedserious threats to neighboring States. South Asian countries and Japan share common criticism
against China. The tense situations produced by China have been maintained over more than adecade in the East China Sea and the South China Sea, as well.
I strongly believe and I can safely say that those Chinese strategies are regarded as uses of“forcible means.” This is so in considering the actual threats posed by China to Japan and South
Asian countries. Thus, the Chinese acts that I have just explained are no doubt reproachable, and,therefore, “wrong.”
In this way, we have reached a common understanding as to the precise meaning of “whatwrong China is doing.”
Before moving onto the next point, let me explain the usefulness of international law evenwhen faced with such wrong-doing by China. I would like to emphasize this point to demonstrate
the solid validity of international law.
It is true that China has been violating international law. Regarding the arbitral tribunalʼsdecision made on the 12th of July 2016, China regards that decision as null and void, and totally
disregards it. But, I can give you one typical example of reliance even by China on internationallaw. From the beginning to the end of the tribunalʼ s procedure, China was totally absent.
Nonetheless, China issued an excessive number of national statements to criticize the tribunalʼsprocedures. In addition, China also explains its position concerning its historic rights by sayingthat Chinese historic rights are “based upon customary international law.” While China violates
UNCLOS, a multilateral treaty, it seeks legal justification for its historic rights based upon“customary international law.” In that sense, even China needs legal justification based upon
public international law. Therefore, in relation to China, a rule breaker, international law solidlymaintains its validity.
Then, based upon a common understanding of what wrong China is doing, next, I willconsider possible ways to combat China from a Japanese perspective.

4. Rule of Law“The rule of law” has been the main pillar of Japanese diplomatic policies for more than a decade.
It contains three principles: first, any claims of rights should find legal justification, second, noforcible changes of law are allowed, and third, disputes should be peacefully resolved.
The Chinese strategies, as we have just confirmed, are definitely contrary to “the rule of law.”
Therefore, Japan, as a responsible player for maintaining world order, should take measures torecover and maintain the said order. Japan should respond to China in order to make it comply
with international law.
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Then, how is Japan to make China obey international law? In this regard, needless to say,Japan should itself adhere to “the rule of law.”
In international society, sovereign States exist with equality to and independence from eachother. There are no authorities above sovereign States. As a result of this, in international society,no compulsory enforcement measures can be taken to maintain the effectiveness of internationallaw. In this sense, international law, critically, lacks teeth.
Under this reality of international law and international society, with respect to the ways tocombat Chinese wrong-doings, two points may be emphasized.
First, with regard to China in the East China Sea, Japan must respond without escalating
the tense situation between the two countries. The Japan Coast Guard, rather than the Japanese
Maritime Self-Defense Force, copes with the Chinese vessels approaching and entering Japanese
territorial sea. This has become almost a permanent situation for a decade in the Japanese
territorial sea surrounding the Senkaku Islands. These islands are definitely Japanese ones fromlegal and historical perspectives. Nevertheless, China has claimed its sovereignty over themand has tried to overtly demonstrate its sovereignty even by using “forcible means” in the sense
explained before. The Japanese Maritime Self-Defense Force is already ready for cooperation
with the Japan Coast Guard. But, Japan, with the highest prudence, has tried to prevent the tense
situation from growing into a military situation. This policy of non-escalation is important forJapan to avoid forcible means as much as possible.
This Japanese policy is to be taken mainly in bilateral relations with China.
Second, Japan has been taking advantage of the “ interplay ” of bilateral, regional andmultilateral dimensions.
The most important thing is for States around the world to form a strong legal circle around
China from which it cannot escape. For that purpose, bilateral, regional, and multilateralmeasures that may have cumulative effects should be taken. This is not an instant method thatwill have instant results. It will take time, but enclosing China in the legal world is very important.
I said “ interplay,” as Japan expects “ synergy” to be produced by bilateral, regional andmultilateral measures. For instance, a regional measure taken in the South China Sea would work
not only in that sea area, but also in the bilateral relationship between China and Japan, and in theregion of the East China Sea, as well. Multilateral voices criticizing China would have impacts onits behaviors regionally in the South and East China Seas. Thus, “synergy” means the functions
produced by the measures taken at these different levels. The functions are also found at different
levels, namely the bilateral, regional and multilateral levels.
At a regional level, for instance, Japan is expecting a code of conduct to be established by
ASEAN countries. The code of conduct needs to be effective enough to make China comply withinternational law. At a world-wide level, Japanʼs policy of “the rule of law” has been sufficiently wellrecognized. Japan strongly urges other States to take the same stance toward China in order tobuild a strong circle in the legal world from which China can find no escape. With respect to thefreedom of navigation, the US, Australia, and Japan, as well as other countries, have cooperated tomaintain the freedom of navigation in the South China Sea where China claims its historic rights
over extravagantly wide sea areas. Furthermore, EU countries might not have as keen an interestin relation to the South China Sea situations as the US, Australia, and Japan. Nevertheless, they
have criticized Chinaʼs negative attitude toward the decision rendered by the arbitral tribunal.
It is true that regional cooperation is ver y important, but in addition to that, multilateral
cooperation is also expected and required. Multilayered cooperation is indispensable to strongly
establish a legal circle from which China cannot escape.
These ways that I have mentioned so far will not have instant results. They will not
immediately work, either. Without a strong and solid attitude for a certain amount of time, itwill be difficult to reach our desired outcome. Nonetheless, as responsible players that abide by19Japan Review Vol.4 No.1 Summer 2020International Law as a Tool to Combat China

international law, Japan, along with other cooperating countries, should solidly continue suchmeasures to combat China in a very “patient” manner.

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