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On the face ofit, China’s recent declaration of an air defense identification zone (ADIZ) extending to territoriesthat it does not control has nothing in common with America’s arrest and strip-search of a NewYork-based Indian diplomat for allegedly underpaying a housekeeper she hadbrought with her from India. In fact, these episodes epitomize both powers’ unilateralistapproach to international law.
A just,rules-based global order has long been touted by powerful states as essentialfor international peace and security. Yet there is a long history of majorpowers floutinginternational law while using it against other states. The League of Nationsfailed because it could not punish or deter such behavior. Today, the UnitedStates and China serve as prime examples of a unilateralist approach tointernational relations, even as they aver support for strengthening global rules and institutions.
Consider theUS, which has refused to join key international treaties – for example, the1982 United Nations Convention on the Law of the Sea (UNCLOS),the 1997 UNConvention on the Law of the Non-Navigational Uses of InternationalWatercourses (which has not yet entered into force), and the 1998 InternationalCriminal Court Statute. Indeed, unilateralism remains the leitmotif of US foreignpolicy, 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 hefthas led to muscle-flexingand territorial claims in Asia that disregard international norms. Chinarejects some of the same treaties that the US has declined to join, includingthe International Criminal Court Statute and the Convention on the Law of theNon-Navigational Uses of International Watercourses (the first law to establishrules on the shared resources of transnational rivers, lakes, and aquifers).
Indeed,despite their geopolitical dissonance, the world’s most-powerful democracy andits most powerful autocracyhave much in common when it comes to how they approach international law. Forexample, the precedent that the US set in a 1984 International Court of Justice (ICJ) case filed byNicaragua still resonatesin China, underscoring that might remains right in international relations.
The ICJ heldthat America violated international law both by supporting the contras in their insurrection against theNicaraguan government and by mining Nicaragua’s harbors. But the US preventedNicaragua from obtaining any compensation by vetoing UN Security Council resolutions thatcalled for enforcement of the ICJ’s judgment.
China still hews to Mao Zedong’sbelief that “power growsout of the barrel of a gun.” Indeed, while China ratified UNCLOS, it then reinterpreted theprovisions to justify cartographicaggression in the South and East China Seas. Worse still, China has refused toaccept the UNCLOS dispute-settlement mechanism, thereby remaining unfettered in alteringfacts on the ground. The Philippines has filed a complaint against China withthe International Tribunalfor the Law of the Sea. China, however, has simply refused to participate inthe proceedings, as if it were above international law.
Whatever thetribunal’s decision, China will simply shrug it off. Only the Security Council canenforce an international tribunal’s judgment on a noncompliant state. But Chinawields a veto thereand will block enforcement of an adverse ruling, just as the US did in theNicaragua case.
China’s newADIZ, while aimed at solidifyingits claims to territories held by Japan and South Korea, is similarly provocative, because itextends to areas that China does not control, setting a dangerous precedent ininternational relations. Japan has asked its airlines to ignore China’s demandfor advance notification of flights, even if they are merely transiting the newzone and not heading toward Chinese territorial airspace.
By contrast,the US has advised American carriers to obey China’s prior-notification demand. There is areason for this: Although the prior-notification rule in American policyapplies only to aircraft headed for US national airspace, in practice the USdemands advance notification of all flights through its ADIZ, regardless oftheir intended destination.
If othercountries emulated the example set by China and the US by establishingunilateral claims to international airspace, a dangerous situation wouldresult. Binding international rules are thus imperative in order to ensure the safety offast-growing commercial air traffic. But who is supposed to take the lead whenChina and the US have pursued a unilateralist approach on this issue?
Now considerthe case of the Indian diplomat, Devyani Khobragade, whose treatment India’snational security adviser called “despicable and barbaric.” True, as a consulate-based diplomat, Khobragade enjoyed only limiteddiplomatic immunity under the 1963 ViennaConvention on Consular Relations. But this convention guarantees freedomfrom detentionuntil trial and conviction, except for “grave offenses.” Can a wage disputequalify as a “grave offense” warranting arrest and humiliation? Would the UStolerate similar treatment of one of its consular officers?
The harshtruth is that the US interprets the Vienna Convention restrictively at home butliberally overseas,in order to shield even the military and intelligence contractors that it sendsabroad. A classic case involved the CIA contractor Raymond Davis, who fatallyshot two men in 2011 in Lahore, Pakistan. Claiming that Davis was a bona fidediplomat with its Lahore consulate, and thus enjoyed immunity from prosecution,the US accused Pakistan of “illegally detaining” him, with President BarackObama defending him as “our diplomat in Pakistan.”
Despite awidely held belief that the current international system is based on rules, thefact 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 intheir interest to do so. If universal conformity to a rules-based internationalorder still seems like a distant prospect, an important reason is thatcountries that should be leading the charge still so often behave like roguestates.
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