March 13, 2019

The struggle between China and the United States for dominance in the South China Sea has raised fundamental questions regarding the “international order”- the body of rules, norms, and institutions that govern relations between nations. These increasingly important questions include what the international order is, who is abiding by it, and who is not. Some say the United States only supports those parts of the international order that further its interests. But now Washington has a golden opportunity to demonstrate its support for the international order even when it may not be in its short-term interest to do so. Its decision will be watched carefully by China and others.

 

The United States claims to uphold what it deems to be the international order and often calls out and unilaterally punishes those countries who do not abide by its interpretation thereof. Indeed, Washington says that in the South China Sea in particular, China is violating and trying to revise the international order through its claims and actions - including rejection of an international arbitration decision against Beijing. Yet the United States’ own general record of supporting international law and regimes is spotty. It refused to abide by an International Court of Justice (ICJ) decision against it in a case brought by Nicaragua. It withdrew from the Paris climate accords and the Iran nuclear deal. And it often appears to violate the UN Charter by threatening and even using force to achieve its international political objectives.

 

The opportunity at hand involves an advisory opinion by the ICJ for Mauritius against Britain regarding ownership of the strategically important island of Diego Garcia, which is home to a US military base. Diego Garcia is an atoll just south of the equator in the central Indian Ocean. It is the largest of 60 small islands comprising the Chagos Archipelago. Between 1968 and 1973, the indigenous population was forcibly removed by the U. K. and the United States through intimidation and denial of return to any who left the island. The U.K. then leased the atoll to the United States, which built a large naval and air force base that became fully operational in 1986. Its strategic value has been proven repeatedly. It provided an air base for U.S. military operations during the Iraqi invasion of Kuwait, Operation Desert Fox, Operation Enduring Freedom, Operation Iraqi Freedom and allegedly for CIA renditions. The atoll continues to play a key role in America’s military strategy regarding the Indian Ocean and its environs – including as a base for bomber training missions over the South China Sea.

 

The ICJ, in a majority opinion, said the decolonization of Mauritius “was not lawfully complete” when it attained independence because Britain retained control over the Chagos Archipelago. The opinion, which is advisory and thus nonbinding, was rendered by a majority of 12 of the 13 judges. It concluded that Britain “is under an obligation to bring to an end its administration of the Chagos Archipelago as rapidly as possible.” The sole dissenter was the American judge. (The U.K. did not have a judge on the court at the time.)

 

The court produced the opinion at the request of a resolution approved by the UN General Assembly (UNGA). The June 23, 2017 resolution making the request was supported by 94 countries but vehemently opposed by Britain and the United States. Britain maintained that the dispute was a bilateral matter between it and Mauritius and indicated it would reject any ICJ decision against it. This is similar to China’s position regarding the international arbitration brought against it by the Philippines. In that case, China argued that the matter should be negotiated between it and the Philippines. Beijing refused to participate in the hearings and when the decision went out, China declared that it would neither recognize nor abide by the binding decision. The United States severely criticized that stance and alleged that it was a prime example of China’s revisionist tendencies regarding existing international law and order.

 

So what will be the U.S. policy going forward regarding the Chagos case?

 

Although the U.S. base is not in immediate danger, its future is uncertain. If the advisory opinion is implemented, the United States will have a new landlord that might not only raise the “rent” but also enact new restrictions on the use of its territory. Moreover reparations for the forced removal of the original inhabitants of Diego Garcia and their right to return could become issues.

 

The advisory opinion will now be debated by the UNGA. If the U.K. persists in ignoring the nonbinding ICJ advisory opinion, the United States will be tempted to support its ally. It may well argue — as Britain most likely will — that the decision is not binding and therefore does not have to be followed. In other words, the United States could remain more or less true to form and only support international law and order when in its current interest. It might even try to bully or bribe Mauritius into continuing to allow the base to support its hegemony in Asia.

 

However, Washington could also seize the opportunity by supporting the ICJ decision against Britain even though it is not in its short-term interest to do so. So the question becomes: will the United States make its policy consistent with its stated principles regarding the upholding of the international order? Or will it continue its disingenuous policy of “do what I say, not what I do”?

Mark J. Valencia is an adjunct senior scholar at the National Institute for South China Sea Studies, Haikou, China

Link: https://thediplomat.com/2019/03/americas-golden-opportunity-to-demonstrate-its-support-for-international-order/ 

   

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