14 July 2016

Might or Right

International law and the sovereignty of the seas.

By Neil Tidmarsh

In 416BC, the army and navy of mighty Athens besieged the little island of Melos, in the southern Cyclades, during the war with Sparta. The people of Melos protested. They insisted that they were neutral; although allies of Sparta, they hadn’t taken up arms against Athens. What gave Athens the authority, they demanded, to determine right and wrong? What gave it any territorial claim to their island?

The ensuing discussion is dramatically related by Thucydides. The Athenians make it quite clear that they’re not interesting in debating the rights and wrongs of the situation:

“We will use no fine phrases … since you know as well as we do that… the standard of justice depends on the equality of power to compel. The fact is, the strong do what they will, and the weak suffer what they must… It is a general and necessary law of nature to rule whatever one can. We are merely acting in accordance with it, and we know that you or anyone else with the same power as ours would be acting in precisely the same way.”

In other words, might makes right. They didn’t argue, as they could have done, that the cultural, political or legal excellence of their state gave them the authority to determine what was just or unjust. They admitted unapologetically that what in fact gave them that authority was simply their power and wealth; that great powers will automatically and inevitably seek to rule wherever and whatever they can; and that any judicial decree can only constrain them if it is backed up by a power equal to their own.

This brutally candid admission might seem shocking, but it is nevertheless a token of the honesty and intelligence of classical Athens. “This is not a law that we made ourselves, nor were we the first to act upon it… We found it already in existence, and we shall leave it to exist forever among those who come after us.” And indeed the behaviour of more or less every great power since then has proved the truth of it.

Those words recorded by Thucydides echoed across nearly two and half thousand years of history this week in the pages of China’s Global Times, a tabloid mouthpiece of the Chinese Communist Party. In defiance of the UN-backed Permanent Court of Arbitration in the Hague, which has just ruled against China in a case about its territorial claims to various islands and waters in the South China Seas, the Global Times declared “China in the past was weak… But now it is different. China’s determination is backed by powerful physical means and sufficient diplomatic resources. The comprehensive strength formed by them is enough to make the strongest opponent give respect. China is solid as a rock.”

In other words, China can ignore the Permanent Court of Arbitration and its ruling because it is powerful enough to do so. It will continue to assert sovereignty over the South China Sea, and may well feel impelled to give further proof of its strength by declaring an Air Defence Identification Zone (authority over airspace), or placing oil rigs in waters claimed by its neighbours, or harassing its neighbours’ fishermen, or ‘buzzing’ the US military planes and ships which continue to pass through the region in order to keep it open.

All this risks a dangerous escalation of hostilities in the region. The Philippines brought the case to court three years ago, but they aren’t the only neighbours disputing China’s territorial claims to their backyards; Japan, Malaysia, Brunei and Vietnam have also complained. Coincidentally, the overwhelming majority won by the Japanese prime minister Shinzo Abe’s nationalist Liberal Democrat Party in this week’s elections (it now has a two-thirds majority in both the upper and lower houses) means that he can now push ahead with the constitutional reforms needed to release Japan’s armed forces from the restrictions of Article 9, the ‘peace clause’. His ongoing attempts to give his country an army that can actually fight a war have generally been seen as a response to China’s increasingly assertive territorial claims and military build-up.

Let’s hope, however, that this week’s ruling against China will encourage its neighbours to escalate the diplomatic manoeuvres rather than the military ones. China isn’t insensitive to its international reputation, it knows that the independent judgements of an international body cannot be swept under the carpet, and it must worry that the neighbours with whom it is in conflict now occupy the high moral ground in the eyes of the rest of the world. All this is to the advantage of the Philippines, and its new President Duterte is in a good position to make the most of it. Yesterday his foreign minister Perfecto Yasay called for “restraint and sobriety”, and prior to the ruling President Duterte said that his government would talk with Beijing if the court found in his favour. He added “We are not prepared to go to war, war is a dirty word.”

No doubt Thucydides would agree with him about that. The Athenian siege of Melos was successful. The island was taken. All the Melian men of military age were massacred and the rest of the inhabitants were enslaved. But in a crucial sense it was unsuccessful; it went down as an indelible black mark on the otherwise glorious and brilliant reputation of classical Athens. And it marked the beginning of its decline; it lost the war against Sparta, and it never really recovered.

What Athens said to Melos explained its actions but of course did not excuse them. Might makes right, but it’s frequently the wrong sort of right. And might often comes to regret it.

 

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