Author: Samuel Ng, Queensland University of Technology

Australia last year called for an independent inquiry into the origins of COVID-19 and objected to Beijing’s imposition of a sweeping security law in Hong Kong. China’s swift retaliation, then, through deployment of strong measures against Australian wine and barley exports was no surprise.

Australia’s subsequent referral of the dispute to the World Trade Organisation (WTO) made sense. The WTO is the world’s authoritative institution on trade. China joined in 2001, agreeing to follow its rules and laws. The institution’s established and comprehensive dispute resolution process is independent and internationally trusted.

Will China abide by the WTO’s ruling against it? There is much reason for doubt. Past disregard for South China Sea rulings on China’s maritime behaviour and the Sino-British Joint Declaration reveal Beijing’s misapplication and selective approach to international law.

A few years ago, the Philippines, like Australia, looked to settle a dispute with China by referring it to an international body. The South China Sea is shared by a myriad of nations, all with overlapping territorial claims. But no other state claims more of the sea than China. The Permanent Court of Arbitration, in a landmark ruling, unambiguously rejected China’s claim, concluding there was no evidence nor legal basis that Beijing can exercise exclusive control over the waters.

The ruling, although in the Philippines’ favour, was a hollow victory. Chinese land reclamation ensued, with increased militarisation and frequent encroachment of Filipino sovereignty. But what was surprising was the Philippines’ reluctance to use the ruling to assert its now recognised rights. President Duterte dismissed it as nothing more than scrap paper, going as far as censoring his Cabinet’s public discussion of it.

To China, Filipino inaction set a precedent. This is one that is followed to this day – the perceived ability to ignore international law when it doesn’t align with Chinese interests (PDF).

Beijing has effectively subordinated multilateral treaties to its own declarations of ‘historic rights’. This justification lacks basis in and is completely foreign to international law. China’s nationalistic interpretations of the United Nations (UN) Convention on the Law of the Sea are plainly incompatible with any accepted understanding of the treaty. International law has been reconstructed as a tool for Beijing’s own influence, threatening the concept of state sovereignty and the rules-based order.

This disregard for international norms of behaviour is especially visible in its dealings with Hong Kong. Beijing’s national security law (HKNSL) stripped Hong Kong of its autonomy and freedoms, silencing once loud and echoing cries for democracy seen in 2019-20 and stifling all dissent.

In late July 2021, a 24-year-old was sentenced to nine years imprisonment. His crime? Riding a motorcycle while carrying a flag displaying a now-illegal protest slogan. His charge? Terrorism and secession. This act of free speech, an undisputed hallmark of freedom, is guaranteed by the Sino-British Joint Declaration.

The Declaration, lodged under the UN, is a bilateral treaty governing Hong Kong’s handover from Great Britain to Communist China, mandating that the rights and freedoms, as well as the pre-handover way-of-life, remains unchanged.

The HKNSL clearly violates the Declaration. The British Government and other Western nations have voiced reservations regarding China’s ongoing non-compliance on multiple occasions. Like the South China Sea ruling, Beijing justified its breach by creating a false legal facade. China argues that the Declaration is no longer legally-binding and is unenforceable – officials call it a historical document with no legal or practical significance. The Chinese Government defers back to international legal principles of state sovereignty and non-interference, repeatedly holding that all matters relating to Hong Kong are its internal affairs.

Beijing selectively uses international law as it conforms to its own interests, conveniently ignoring the international community’s concerns. China’s position on Hong Kong and the South China Sea displays to the world that it believes its economic strength and clout buys them a get-out-of-jail free card.

Although serious, the discussed international law violations are not the main issues. Those can be resolved through established pathways like the WTO. But the People’s Republic’s flagrant breaches coupled with its simultaneous construction of legal pretences present a slippery slope for future dealings with the country, especially those involving Australia.

China’s rhetorical defence to the law hides its subversive actions. Beijing is upending the partition between law and politics in a manner that undermines and overturns the cardinal pillars of liberal order. No matter what the WTO eventually rules, the writing in the sky clearly points to the same outcomes of the South China Sea and the Joint Declaration. China will not respect, follow nor adhere to the ruling, unless it’s in their favour.

Moving forward, Australia and other proponents of the rules-based order must take more serious steps in cementing their adherence, support and advocacy for international law and its institutions. The absence of opposition combined with Filipino-like complacency will reinforce Beijing’s legal facades, ultimately transforming into greater geopolitical and security challenges that will threaten Australia, our interests, and our position in the world.

Samuel Ng is a penultimate law and international business student currently studying at the Queensland University of Technology.