International Law and the South China Sea

 
 

China’s position paper published on December 7, 2014 is one of the rare documents in which Beijing officially expressed its opinions on the issues in the South China Sea as well as on the arbitration proceedings that the Philippines initiated at the Permanent Court of Arbitration in January 2013. It seems that the motivation was the December 15 deadline (which China has ignored) for its response to the Philippines’s claims before the Tribunal.

China’s views on its refusal to appear in the arbitral proceedings can be summarized in four inter-related main points. First, lying at the heart of the disputes between China and the Philippines is the territorial claims over sovereignty over the archipelagos in the area, rather than interpreting UNCLOS. Therefore, in Beijing’s view it is beyond the scope of the jurisdiction of the Tribunal to entertain the case. Second, China stresses that the Philippines has to respect bilateral statements between them as well as the 2002 ASEAN-China Declaration on the Conduct of Parties in the South China Sea (DOC), in which they agreed to solve their maritime issues through negotiations alone. Third, even if the Philippines has the right to bring the case to the Tribunal, China is not bound by it as in 2006 it submitted a declaration to the United Nations exempting itself from compulsory arbitration and other dispute settlement procedures. And finally, the fact that China has never chosen the other options for arbitration provided by UNCLOS leads to a violation in international law.

It is easy to see that the main argument of China in its position paper is that the Tribunal lacks the jurisdiction to entertain the case. The fact that China focuses on jurisdiction rather than displaying comprehensive counterclaims is hardly a surprise. Indeed, in almost every case of a default of appearance before an international court, the defendant (usually the party refusing to appear) challenges the jurisdiction of the Court. There have been more than 11 cases of default of appearance before the Permanent Court of International Justice (PCIJ) and the International Court of Justice (ICJ). With respect to the International Tribunal for Law of the Sea (ITLOS), there has been just one case where one of the parties to the dispute refused to appear before the Tribunal: the Artic Sunrise case in which the Russian Federation did not participate in the judicial proceedings. Virtually all of the defaulting parties behaved in the same way.

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Indeed, it is easy to point to similarities in their declarations. For instance, in the Fisheries Jurisdiction Cases, Iceland declared that the subject matter brought to the International Court of Justice against it by Great Britain and Germany had no basis under the Statute of the ICJ for the Court to exercise its jurisdiction. In addition, it also considered that it would not be willing to confer jurisdiction on the Court; and it would not in any circumstances appoint an agent representing its government. The arguments of China on its December 7, 2014 position paper are in some respects the same.

These challenges to the jurisdiction of the Court can be legally explained. The very first step a court takes before a default of appearance case is to demonstrate that it has the legal authority to deliver a judgment. If the jurisdiction of the Court cannot be found, the case will be terminated; therefore, there is no need for the non-appearing party to address the details of the claims brought against it by the other party.

China may have been timely in publishing its position, but that does not necessarily indicate that Beijing is keen on a legal solution for the South China Sea disputes. In fact, it implies that China is continuing its policy of eliminating challenges to its claims in the area and the possibility of invoking a judicial body to decide the disputes. Norms still are an important facet of South China Sea disputes. Contending parties frame their respective claims in distinct normative contexts. The main illustration is that, whereas China resorts to a concept of “historical waters” and historical legitimacy to back its expansive claim, ASEAN states like Vietnam, the Philippines, or Indonesia oppose it with the Convention on the Law of the Sea (UNCLOS). Interpretations of states’ rights and obligations under UNCLOS, and its applicability to the South China Sea context also diverge from one actor to the other.

On the other hand, recent developments in the South China Sea, including the dispatch of a Chinese oil rig in the Paracels and the various construction work ongoing in the Spratleys, point to an uneven commitment to the status quo – or lack thereof – by some, if not all parties. Without an agreed baseline, any negotiation is resting on fragile grounds. ASEAN and China have been engaged in substantial talks since the conclusion of the 2002 Declaration of Conduct (DoC), but the prospects of these negotiations leading to a much-awaited Code of Conduct (CoC) seem remote.

The lack of normative order in the South China Sea will pave the way for legal and academic fireworks in 2015. It started with the Department of State of the United States publishing a report (Limits in the Sea) analyzing the legal status of China’s nine-dash-line claim just two days before China’s position paper. This 26-page report offered a detailed breakdown of the legality of the nine-dash-line, concluding that the legal status of the Chinese U-shape line could be found nowhere in the Law of the Sea Convention. This can be seen as a strong and direct attack to the credibility and legitimacy of China’s claims as well as an argument relevant to the South China Sea disputes.

More importantly, the report can also be viewed as a U.S. proposal to ASEAN countries for a “juridical alliance” with respect to the freedom of navigation and dispute settlement in the South China Sea. Given the power discrepancy with China, having the U.S. defend the validity of existing rules and procedures, and their usefulness in dispute management in the South China Sea, is a major asset, especially given that all claimants seek the moral high ground.

Yet the overwhelming priority for ASEAN is resolving its own internal disparities, which have restricted the bloc’s actions against China as well as its ability to engage other major powers in a peaceful South China Sea dispute settlement. The first target is Philippines-Vietnam-Malaysia-Indonesia strategic cooperation. These four states should develop and adopt a common position on various aspects of the law of the sea in the South China Sea, as part of their ongoing efforts to delegitimize the Chinese nine-dash-line. For ASEAN, operating in the context of a regional power shift, normative and legal approaches were and will remain the most feasible solution in dealing with stronger nations. 

Truong-Minh Vu is a foreign affairs and political analyst, focusing on the Southeast Asian region, and a lecturer at the Faculty of International Relations, University of Social Sciences and Humanities, Ho Chi Minh City. He has published articles in numerous academic and policy journals, including Revista Brasileira de Política Internacional, East Asia Policy, E-International Relations and ASIEN. Trang Pham is a lecturer at the Faculty of International Relations, University of Social Sciences and Humanities, Ho Chi Minh City and currently a Nippon Fellow at the International Tribunal for the Law of the Sea (ITLOS).

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