Checking China’s Diplomatic Piracy in the South China Sea

China appears keen to bring piracy back as an instrument of foreign policy, but the days of eye patches and wooden legs are long gone. Instead, Beijing’s most effective raiding parties prefer business suits and briefcases, thus allowing them to ransack and plunder under the guise of safeguarding international law. Its most recent victory came just a few weeks ago, when a less than qualified Chinese diplomat won an election as a judge on the International Tribunal for the Law of the Sea (ITLOS).

This gambit is integral to Chinese plans in the South China Sea (SCS), where a 2016 ITLOS ruling invalidated Beijing’s territorial claims over much of the area. In the intervening years, China has illegally fortified several manmade islands with surface-to-air missiles and conducted aggressive naval maneuvers targeting commercial vessels traversing this resource-rich waterway and vital shipping lane. For their part, countries with legitimate SCS sovereignty claims, like Vietnam, the Philippines, Malaysia, and Indonesia, are attempting to balance their rights with the preservation of their economic relationships with China.

Winning a position on ITLOS provides China with a powerful, nine-year perch from which to interpret the application of the United Nations Convention of the Law of the Sea (UNCLOS), as well as the means to influence maritime disputes in other parts of the world. Chinese judges have sat on the tribunal before, but it is remarkable that Beijing won again after demonstrating contempt for ITLOS rulings.

While it’s clear that treasure trumped treaty in the SCS, Beijing’s efforts to co-opt ITLOS follow a familiar pattern taking place throughout the United Nations (UN) system. Namely, China seeks to bend the rules-based order to its will while completely disregarding international laws and treaties when Beijing’s own interests are at stake.

Recently, this sophisticated campaign has included everything from China’s efforts to dictate global standards governing next generation technologies at the International Telecommunications Union (ITU) to its work undermining the UN’s Human Rights Council, where the Chinese Communist Party’s allies in Caracas, Tehran, and Damascus provided diplomatic top cover for its crackdown in Hong Kong.

With few viable options left, SCS claimants appear hesitant to get in the middle of what has quickly turned into the latest geopolitical dust-up between the United States and China. While several regional capitals welcomed Secretary of State Pompeo’s recent declaration about the illegality of China’s SCS misadventures, others reacted coolly so as to avoid China’s ire.

At the same time, claimants face another complex balancing act at the Association of Southeast Asian Nations (ASEAN), where China is pushing countries to accept limits on core matters involving national interest, such as which states can partner with Beijing for military exercises or offshore oil and gas exploration in the SCS. Beijing’s attempts to normalize its illegitimate SCS claims rely on a tried and true Chinese strategy – divide and conquer.

Nevertheless, and perhaps sensing a change in the diplomatic winds following Pompeo’s announcement, Vietnam, Malaysia, Australia, and the Philippines have begun raising concerns about China’s plundering of natural resources and marauding sea patrols. These recent maneuvers have included the deployment of an armed Chinese flotilla to harass Malaysian ships conducting lawful offshore energy exploration, the sinking of a Vietnamese shipping vessel for ignoring an illegitimate Chinese fishing ban near the Paracel Islands, and a noticeable uptick in wolf-warrior threats from China’s Ministry of Foreign Affairs.

While the U.S. navy continues to transit the area with little regard for Beijing’s bullying behavior, it is understood that the U.S. is hardly in a position to escort each and every commercial vessel transiting the area. Thus, barring any changes to the status-quo, China remains well-positioned to continue intimidating the defenseless.

With the 2020 ITLOS election now firmly astern, it is time for the 160+ UNCLOS signatories to consider changes to the organization’s complicated electoral system. As first outlined by U.S. Navy judge advocate Jonathan G. Odom, one possible solution could involve establishing a safety-check to ensure uncontested candidates who are less qualified than candidates from other regions are not automatically elected. In this case, China’s candidate had no experience in maritime diplomacy or law but was able to win because he ran unopposed and ITLOS’ rules require that member state voting ballots include at least one representative from each of the organization’s five regions, in this case Asia.

Other possible options could involve a concerted strategy from Asian member states to nominate more highly qualified candidates in future ITLOS elections, as well as introducing reforms to prevent the election of nominees from states that openly flout their treaty obligations.

The Trump administration would be wise to elevate China’s non-compliance with the 2016 ruling, as well as Beijing’s illegal, unreported, and unregulated (IUU) fishing, as centerpieces of its upcoming agenda at the United Nations General Assembly (UNGA). Beyond forcing China to walk the diplomatic gangplank, such a move could undoubtedly strengthen Washington’s nascent attempts to form a coalition of likeminded countries to confront China’s malign behavior. Another added benefit would be to bolster international support for a possible Vietnamese lawsuit against China for the purpose of enforcing the 2016 ITLOS ruling, an escalatory tactic which appears to be gaining some traction in Hanoi.

By hook or by crook, China is intent on taking advantage of the instability caused by COVID-19 to advance its broader maritime ambitions, with the SCS playing a major role in buttressing Xi Jinping’s goal of attaining great-power status and securing China’s place within the international hierarchy. While some have called for abandoning international organizations over which Beijing exercises undue influence, now is instead the time to prepare for the long haul with thoughtful policy options to end the piracy of our global institutions once and for all.

Craig Singleton, a national security expert and former U.S. diplomat, is an adjunct fellow at the Foundation for Defense of Democracies (FDD), where he also contributes to FDD’s Center on Military and Political Power and Center on Economic and Financial Power. FDD is a Washington, D.C.-based, nonpartisan research institute focusing on national security and foreign policy.