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THE STR AITS

TIMES
Thinking Aloud

A country's size, culture matter in its


approach to international law
Lydia Lim
(mailto:lydia@sph.com.sg)

PUBLISHED JUL 24, 2016, 5:00 AM SGT

Just as China may distrust Eurocentric rules, smaller states may want
the added safety of laws
In September 2003, I found myself in the German city of Hamburg for a signicant event in
Singapore's legal history - the city state's rst appearance before an international court.
Unhappy with Singapore's reclamation works off Tuas and at Pulau Tekong, Malaysia had
launched legal proceedings against its neighbour, as provided for by the United Nations
Convention on the Law of the Sea, or Unclos. This action, known as compulsory dispute
settlement, was similar to that taken by the Philippines against China over the South China Sea.
One difference was that while China refused to participate, Singapore took part and took pains to
argue its case.
A three-day hearing was scheduled at short notice because Kuala Lumpur sought a stop-work
order. I was one of two journalists sent to Hamburg to report on it; the other was from Malaysia.
The court in question was the International Tribunal for the Law of the Sea, also known as Itlos. It
has 21 judges. I noticed that when the Singapore delegation arrived at the court, several of those
judges greeted Ambassador Tommy Koh, Singapore's agent for the case, with great warmth and
shook hands with him as though they were old friends.

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I realised later that this might have been due to the important role Ambassador Koh played in the
passage of Unclos, a landmark treaty negotiated over nine years to bring law, order and peace to
the world's oceans and seas. He had presided over those dicult negotiations in their last three
years, from 1980 to 1982, when Unclos nally became international law and set a new record by
being signed by 119 countries on the rst day it was open for signatures.

It is significant that in the White Paper China issued the day after the
arbitral award, it said on dispute settlement: "Based on an in-depth
understanding of international practice and its own rich practice, China
firmly believes that no matter what mechanism or means is chosen for
settling disputes between any countries, the consent of the states
concerned should be the basis of that choice."

Unlike Ambassador Koh, I am not trained in international law. The reclamation hearing was my
introduction to it. I would receive a deeper immersion ve years later, in 2008, when I would
report on Singapore and Malaysia's oral arguments in their territorial dispute over Pedra Branca,
which went before the International Court of Justice at The Hague. That hearing took not three
days but three weeks.
I saw up close Singapore's leading minds in public international law work at out with colleagues
from various other agencies, to defend, in the rst case, Singapore's right to reclaim land in its
own waters, and, in the second case, to continue its exercise of sovereignty over Pedra Branca.
Ambassador Koh, then Deputy Prime Minister S. Jayakumar, then Chief Justice Chan Sek Keong
and Judge of Appeal Chao Hick Tin were passionate about international law, as citizens of a small
state have cause to be.
As Ambassador Koh explained in a recent commentary for The Straits Times, international
organisations like the United Nations and international law have helped to create a safer and
better world governed by laws, rules and principles. "It is a world," he wrote, "in which states, big
and small, are held accountable for their actions towards other countries as well as towards their
own citizens. It is, of course, true that great powers have often resorted to the use of force to
achieve their political objectives. However, even great powers do not want to live in a chaotic and
lawless world. They prefer to live in an orderly world.

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Related Story
The great powers and the rule of law

"At the same time, they claim to have the right to act against the law of nations when their vital
interests are at stake. Life is, therefore, a constant struggle between the rule of law and the rule of
might. It is the ambition of small countries to strengthen the rule of law and weaken the rule of
might. It is the aspiration of small countries to curb the unilateral use of force by the great
powers."
Today, the two great powers that almost all small states have to engage with are the United States
and China, both of which are active in the waterways around Singapore, namely the South China
Sea. The current rules-based world order is largely an American construct, and accords with
American norms in areas ranging from free trade to human rights to the use of force. China is, by
contrast, a regime taker.
When it opened up to the world, it found that the international community it was joining was
already well regulated. It realised it had to learn the rules of the game and play by them, said
Professor James Li Zhaojie, for otherwise, there was no way it could communicate, trade or
conduct relations with other nations, especially "these Western law-minded countries". The
professor of international law at Beijing's Tsinghua University was speaking at a 2011 panel
discussion organised by the University of Pennsylvania Law School on the question: Are
superpowers above the law?
Still, there is the issue of trust, Prof Li said, as international law originated in the West and was,
for a long time, Eurocentric. "And China was the underdog, victimised by this Eurocentric
international law for more than a 100 years, ever since the Opium War of 1842. So... should China
trust Western-oriented rules of law governing relationships among nations?" he asked, before
adding that, by and large, "today China does feel that it is a beneciary of the present
international legal order".

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But the differences between the US and China do not end there. The gap in their approach to
international law can be seen in, for example, their differing views on military activity in an
exclusive economic zone (EEZ), which extends 200 nautical miles out from a state's coast.
During negotiations for Unclos, China had proposed that states should exercise some form of
national security control over the waters in their EEZ, said Professor James Kraska of the US
Naval War College during the panel discussion cited above. China's view was not accepted.
Now, having signed on to Unclos as a package deal, China knows that, by law, the US navy can
operate in its EEZ but it nevertheless objects to such activities. Prof Kraska observed that
"whereas the United States approach is very legalistic and black letter, the Chinese approach is
much more of, it may be lawful but it's just not nice. It's rude and it's akin to a Peeping Tom
looking in your window while walking along the sidewalk. There's nothing in the law that says
you can't look in somebody's window as you're walking along the sidewalk... but it's just not nice
and your neighbour doesn't like it. So I think that it gets to a difference of what global order ought
to look like."
That cultural difference may also lie behind China's consistent rejection of the arbitral
proceedings which the Philippines launched unilaterally, as allowed under Unclos' framework for
compulsory dispute settlement.
It is signicant that in the White Paper China issued the day after the arbitral award, it said on
dispute settlement: "Based on an in-depth understanding of international practice and its own
rich practice, China rmly believes that no matter what mechanism or means is chosen for
settling disputes between any countries, the consent of the states concerned should be the basis
of that choice." It also reiterated that it had held multiple rounds of consultations with the
Philippines on proper management of disputes at sea and reached consensus on resolving them
through negotiation and consultation. In other words, the Philippines' unilateral action, even if
lawful, was not nice.
But even as China hopes for, and expects, other countries to be sensitive to its feelings, it must
also appreciate that smaller states may feel they have no choice but to seek refuge in international
law, which levels the playing eld between them and a giant neighbour - especially one with a
habit of exing its muscles.

RELATED STORIES:

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