A flawed legal fantasy rooted in arrogance
A well-known American scholar recently published an article entitled "How to Slay a Giant: Reviving the South China Sea Arbitration", arguing that the Philippines can use UN resolution and the advisory opinion of the International Court of Justice to strengthen the effectiveness of the so-called South China Sea arbitration.
The article's fixation on "slaying" China via legal trickery exposes its true agenda: not peace, but containment. It attempts to resurrect the null and void 2016 South China Sea arbitration award by weaponizing the UN General Assembly (UNGA) resolution and invoking the International Court of Justice (ICJ) for an advisory opinion. The author peddles a dangerous illusion that manipulating the UNGA and the ICJ could breathe life into the discredited 2016 ruling. This scheme, draped in the language of "rule of law", is a dangerous cocktail of legal naivety and geopolitical sabotage. While the proposal is creatively packaged, it crumbles under scrutiny—both legally and politically—revealing a hubristic disregard for China's sovereignty, the complexities of international law, and the realities of regional diplomacy.
The ICJ exists to resolve disputes with the consent of states and to provide impartial legal guidance—not to rubber-stamp politically motivated campaigns. The article's scheme to exploit the court's advisory function ignores three cardinal principles.
Advisory opinions should not be treated as enforcement tools. ICJ advisory opinions are non-binding interpretations requested by UN bodies to clarify legal questions. They are not mechanisms to resurrect null and void 2016 South China Sea rulings or pressure sovereign state. The court itself has stressed that its role is to "act judicially", not to validate prior awards tainted by procedural illegitimacy. To suggest that such an opinion could "revive" the arbitration ruling is akin to using a Band-Aid to fix a broken dam—it ignores the structural illegitimacy of the original award. To demand an opinion on the issues relating to the 2016 arbitration ruling—a process China lawfully boycotted under UNCLOS—would also force the ICJ into a geopolitical minefield, undermining its reputation as an UN body.
The UNGA resolution is a stage for politics rather than law. UNGA resolutions, while symbolically significant, carry no legal weight. They reflect political sentiments, not law. Even if a resolution were passed (a big if, given China's diplomatic clout), it would be a symbolic gesture, not a legal sledgehammer. Using the UNGA resolution to hijack the ICJ's advisory function would set a perilous precedent. Imagine a future where powerful blocs routinely mobilize UNGA votes to "interpret" international law against weaker states—this is not justice; it's legal imperialism. China, with its UN Security Council veto and diplomatic influence, would rightfully block such efforts. But the damage to the ICJ's perceived neutrality would linger.
The principle of state consent is the bedrock of international law. The ICJ's advisory function is meant to assist UN bodies, not circumvent state sovereignty. The 2016 arbitration collapsed because it violated the foundational principle of state consent. China's 2006 declaration under UNCLOS Article 298 lawfully exempted it from compulsory arbitration on territorial sovereignty and maritime delimitation disputes. The tribunal's decision to override this—ruling on sovereignty issues beyond its mandate—was an act of judicial arrogance disguised as law, rendering its award a legal nullity. To now seek an ICJ opinion retroactively blessing this farce would mock the very idea of "good faith" in international law. China would never acquiesce to such a hostile maneuver at the UN or the ICJ. The proposal in the article "How to Slay a Giant" reeks of hypocrisy: why demand China submit to a process its government never consented to, while ignoring the West's own history of rejecting inconvenient rulings (e.g., the US ignoring the ICJ's Nicaragua v United States judgment).
China's approach to the South China Sea is neither a bulldozer nor a surrender—it's a scalpel. Rooted in unwavering respect for sovereignty, tempered by a nuanced understanding of international law, and energized by a commitment to shared peace, stability and prosperity, Beijing's strategy has turned one of Asia's most volatile regions into a laboratory for conflict resolution. The West's narrative of Chinese "aggression" will crumble under the scrutiny of the international community.
China's claim to the Nanhai Zhudao in the South China Sea is no whimsical cartographic flourish; it's anchored in centuries of historical practice and legal title. Yet unlike colonial powers that imposed their will through cannon fire, China champions dialogue as the only legitimate path to dispute resolution. This isn't empty rhetoric. Look at the 2002 ASEAN-China Declaration on the Conduct of Parties (DOC), where Beijing committed to peaceful negotiation—a pledge renewed in recent years with accelerated talks for the Code of Conduct, demonstrating Beijing's commitment to stabilizing the region.
While critics howl about "delays", China and ASEAN members are meticulously threading a needle: balancing different claims with crisis management. While armchair warriors cling to the arbitration ruling, China and ASEAN members are trying to build a future where fishermen fish, diplomats talk, and children inherit calm seas. While Western media screams "Chinese militarization," China has prioritized civilian infrastructure: lighthouses that guide ships through typhoon-ravaged waters, desalination plants that sustain fishing communities, and environmental stations monitor coral reefs. These aren't acts of dominance—they're investments in regional resilience.
China's refusal to participate in the arbitration was not a rejection of international law but a defense of it. UNCLOS explicitly allows states to opt out of compulsory arbitration for disputes involving sovereignty and maritime boundaries—a right China legally invoked. Beijing's stance aligns with a long-standing principle: territorial and maritime disputes must be resolved through direct negotiations between sovereign equals, not through adversarial litigation hijacked by external actors. Contrast this with the South China Sea arbitration tribunal's jurisdictional overreach, which even legal luminaries called "a dangerous precedent". China's stance safeguards a sacred principle: state consent as the bedrock of international justice. To accept a ruling rendered without consent would have turned Annex VII arbitration into a tool of coercion—a betrayal of the spirit of the dispute settlement mechanism of the UNCLOS.
Washington, while lecturing about "freedom of navigation" and refusing to ratify UNCLOS, conducts series of military drills every year in the South China Sea and even deploys mid-range missile system in the Philippines. True threats to the stability of the South China Sea clearly come from external powers inflaming tensions, not from China's lawful activities. The call to "revive" the arbitration is less about law than about perpetuating a Cold War-style containment strategy against China. The 2016 arbitral ruling is a relic, a dead letter gathering dust. Those still clinging to it are like sailors navigating by a broken compass: stubborn, lost, and destined to crash. To abuse the UNGA and ICJ for geopolitical score-settling would poison international law, transforming courts into tools of coercion rather than guardians of justice.
China's rise is not a problem to be "solved" by legal gimmicks but a reality to be accommodated through mutual respect. The South China Sea doesn't need more Western saviors waving phantom legal flags; it needs face-to-face talks, maritime cooperation, and the hard, unglamorous work of building trust brick by brick. On the South China Sea issue, politics without dialogue and mutual understanding is tyranny, and abuse of dispute settlement mechanisms without restraint is chaos. China has been long on the definite path: principled, patient and very pragmatic. Washington and Manila should take note.
Ding Duo, director of the Research Center for International and Regional Issues, National Institute for South China Sea Studies. The views don't necessarily reflect those of China Daily.
If you have a specific expertise, or would like to share your thought about our stories, then send us your writings at opinion@chinadaily.com.cn, and comment@chinadaily.com.cn.
