Maritime (Dis)Order: The PRC and the Illusion of A South China Sea Code of Conduct

• Author: Benjamin Haight
• Position: Assistant General Counsel with the U.S. Department of Defense
• Pages: 225-245

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2024 e Institute for Migrant Rights Press

e views expressed herein are his own and do not necessarily reect the ocial policy

or position of the U.S. Navy or the U.S. Department of Defense.

MaritiME (dis)ordEr:

The PRC and The IllusIon of a souTh ChIna sea

Code of ConduCT

Benjamin Haight

Assistant General Counsel with the U.S. Department of Defense

bhaight024@gmail.com

President Xi once told a seminar of Communist Party ocials “[t]he most

important characteristic of the world is, in a word, chaos.” In this vein,

the PRC fosters and exemplies international chaos by refusing to comply

with its international legal obligations to benet its own self-interests.

As a state party to the United Nations Convention on the Law of the Sea

Convention (UNCLOS), the PRC is legally obligated to comply with the

multi-lateral treaty’s object and purpose. However, the PRC has violated

numerous UNCLOS provisions regarding maritime claims, shing, and

freedom of navigation, among others. In response to the PRC’s continued

disregard of UNCLOS, the Philippines brought suit against the PRC pur-

suant to Part VX of UNCLOS. In 2016, the Arbitral Tr ibunal’s award was

largely counter to the PRC’s interests and validated almost every single

one of the Philippine’s legal claims. To the dismay of the international

community, however, the PRC rejected the Arbitral Tribunal’s jurisdic-

tion and subsequently rejected the Arbitral Tribunal’s award.

In addition to violating UNCLOS and rejecting the Arbitral Tri-

bunal’s award the PRC has also acted inconsistent with the non-binding

Declaration of Code of Parties in the South China Sea (DOC) which was

adopted in 2002. e DOC was intended to “lay the foundation for long

term stability in the area and foster understanding among claimant coun-

XI Indonesian Journal of International & Comparative Law 227-47 (July 2024)

226

Haight

tries.” e DOC was sparked by PRC aggression in the late 1990s, but

the PRC has never acted consistent with the DOC’s object and purpose.

In 2019, the PRC and Association of Southeast Asian Nations (ASEAN)

began to negotiate a new South China Sea Code of Conduct until the

COVID-19 pandemic stalled discussions. In August 2020, Chinese o-

cials “called on their ASEAN counterparts to resume Code of Conduct

negotiations as soon as possible.” But aer the PRC has committed so

many transgressions in direct violation of its legal and voluntary political

commitments, it is reasonable for one to consider whether a South China

Sea Code of Conduct is worth-while and the extent to which it impacts

the PRC’s legal obligation in the rst place. A South China Sea Code of

Conduct would not impact China’s maritime actions nor would it alter

China's legal obligations under the United Nations Convention on the

Law of the Sea (UNCLOS) or under the 2016 Arbitral Tribunal’s award

in favor of the Philippines.

Keywords: Law of the Sea, South China Sea, Southeast Asia, UNCLOS.

INTRODUCTION

Renowned international law professor Louis Henkin once famously

wrote “[a]lmost all nations observe almost all principles of interna-

tional law and almost all of their obligations almost all of the time.”1

Although Professor Henkin hedges his statement, his outlook on inter-

national law is generally optimistic. Despite the fact that international

law lacks a true enforcement mechanism and states tend to act out of

a sense of their own best interests, there is some empirical evidence to

support Professor Henkin’s positivity.2 Professor Henkin’s quote, how-

1. Louis Henkin, How Nations Behave, p. 47 (2nd ed. 1979); see also Harold Koh,

Why Do Nations Obey International Law?, 106 YALE L. J. 8 (Jun 1997).

2. See, e.g., A  I T D 

I  N E L (Ernst-Ulrich Petersmann &

Gunther Jaenicke eds., 1992); R E. H, E I

T L: T E   M GATT L S (1993);

R E. H, T GATT L S  W T D

(2d ed. 1990); Curtis Reitz, Enforce the General Agreement on Taris and Trade,

17 U. P. J. I’ B. L. 555 (1996); C  J 

I C (M.K. Bult M. Kuijer eds., 1996); J C