[Noah Feldman] International law isn’t quite law, but it’s no joke

An international court rules that China broke the law by building islands in the South China Sea. China doesn’t care.

Does that make international law a joke? The answer is yes and no.

International law is not the command of a sovereign backed by the threat of force. It usually cannot force countries to obey its dictates and decisions. That makes it different from domestic law.

But international law still matters. The decision against China by a Hague tribunal for violating a treaty, the United Nations Convention on the Law of the Sea, functions as a kind of early warning sign for how other countries in the world think about China’s militaristic expansion. The decision is beneficial not only to the Philippines, which brought the case, but to all the countries who have overlapping maritime interests with China in the Pacific -- including the United States, which provides security to most of them.

Paradoxically, the decision by the Permanent Court of Arbitration also helps China, even though it lost. The judgment helps the Chinese understand that its efforts to create legal arguments for regional expansion have failed. That probably won’t convince China to stop expanding. But it will give Chinese leaders a clearer sense of the resistance they’re going to face if they do so -- and more information about the costs that resistance will impose on them.

China isn’t alone in flouting international tribunals that it doesn’t like. In 1986, the U.S. refused to participate in a case brought against it by Nicaragua in the International Court of Justice for financing rebel Nicaraguan contras. The U.S. first appeared before the international court to argue that it had no authority to hear the case. When the U.S. lost that argument, it went home without even mounting a defense. Then it ignored the verdict.

Being ignored by a superpower didn’t rob the international court of its authority. It simply reminded observers that the tribunal’s capacities were limited. Nor did the defeat delegitimize the U.S. in international proceedings. The U.S. was simply too important, and the sanctions for ignoring an international court decision were too minimal, to affect it meaningfully.

Similarly, ignoring the verdict of a tribunal created pursuant to the law-of-the-sea treaty won’t take China out of the broader game of international law. China participates in a wide variety of international legal institutions, and you can expect that participation to continue. Although China will face criticism for flouting international law, no one wants China to opt out of the international law system where its participation is helpful, for example in the World Trade Organization. So there will be a limit to the degree of criticism that China faces.

The tribunal’s credibility is not as high as it would have been had China participated in the case, to be sure. But the tribunal will still get respect insofar as other countries in the Pacific region can be expected to cite its judgment repeatedly and loudly.

The value of the verdict is to signal an international consensus that China’s island building can’t be taken seriously as part of its broader claims to expanded maritime jurisdiction in the South China Sea.

China has claimed sovereignty over all the seas included within a line that appears on its maps. The line’s history is telling as an exemplar international claims. It was first created by the Republic of China in 1947, before China’s nationalists were defeated by the Communists. At the time, the claim would not have troubled the U.S. Now, of course, assertions of broader Chinese sovereignty bring China into conflict with allies whom the U.S. has treaties promising protection.

The punchline of the tribunal’s judgment was a frank rejection of the legal significance of the line. That tells China that the rest of the international community isn’t going to budge. Countries who claim territorial waters that overlap with China’s claims will use the tribunal’s judgment in pressing the U.S. to defend them, and in defending their own space.

China can continue to bluster at these neighbors. It can even keep building islands, unless someone tries to stop the process.

But China now knows that there will be no softening of the response from its neighbors -- or from the U.S.

All this information could be gotten by a means other than an international tribunal. But think of what that alternative mechanism would be. It would require a series of increasingly belligerent acts by China and increasingly belligerent responses. That would be costly to all parties, and could accidentally trigger hostilities.

International law is a mechanism for communicating information outside the use of force. That’s valuable to all parties. As Winston Churchill once put it, it’s always better to “jaw, jaw” than to “war, war.” International law isn’t the same thing as domestic law. But talking is better than shooting.

By Noah Feldman

Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard University and the author of six books, most recently “Cool War: The Future of Global Competition.” -- Ed.

Bloomberg