To China, is the “law” in “rule of law” in the seas of Asia the existing international law of the sea, or is it a new international law of the sea that accommodates a new and “better” international order as envisioned by China? The process leading to the award in the South China Sea arbitration case (Philippines vs. China) on July 12, 2016 should have been an ideal opportunity for China to clarify this point. Yet China consistently refused to participate in the arbitration process. Instead, China declared the following positions.
On October 30, 2015, China argued that its rights in the South China Sea have emerged over the course of a long history and that they are grounded in international law including the United Nations Convention on the Law of the Sea (UNCLOS). Meanwhile, on May 12, 2016, Beijing insisted that the UNCLOS does not regulate all the matters related to the international law of the sea and that historic rights pertaining to what lies within the Nine-Dash Line predate the adoption of the UNCLOS. China then refused to recognize the tribunal’s jurisdiction by claiming that the UNCLOS cannot deny historic rights that predate it. In short, China pointed out the limitation of the regulatory scope of the UNCLOS.
In its July 2016 ruling, the arbitral tribunal affirmed 14 out 15 claims made by the Philippines. It rejected the legal effect of China’s claim to “historic rights” in the maritime areas of the South China Sea. It rejected China’s acquisition of rights over the exclusive economic zone (EEZ) and the continental shelf with reference to the marine feature of the Spratly Islands. It acknowledged the illegality of China’s various activities in the South China Sea.
This arbitration award was reported as “a complete victory” for the Philippines and “a total defeat” for China. Yet the award did not include a legal evaluation of the Nine-Dash Line itself. Moreover, it did not deny China’s territorial rights or territorial sovereignty with regard to the South China Sea islands and the surrounding seas (nor did it recognize the Philippines’s territorial rights or territorial sovereignty). The arbitral tribunal simply examined, assessed, and denied the legal effect of China’s claim to historic rights over the sea within the Nine-Dash Line, with reference to the UNCLOS.
Settling Maritime Disputes
The day after the arbitration award, China reaffirmed that its position on the South China Sea issue was unchanged. Beijing refused to recognize the arbitration award and indicated that it would seek to resolve the dispute with the Philippines through bilateral negotiations.
In general, there are many ways to settle international disputes peacefully, and legal settlements through arbitration or the courts is just one. Most international disputes are resolved through negotiation outside a legal settlement, or else they remain unresolved. As long as it leads to or assists in the peaceful settlement of a dispute, the approach taken does not necessarily have to involve a legal settlement. Moreover, even in cases of international disputes with a pending judicial procedure, the settlement deals exclusively with the aspects of disputes related to legal rights and obligations, which may form only part of the complex factors between the disputing parties. Depending on the nature of the dispute, it may well be better for the parties to seek a solution through negotiation.
That said, considering the many types of international disputes, the basis for settling dispues pertaining to the acquisition of territorial rights (territorial disputes) is still international law. The basis for settling one of the issues brought up in the South China Sea case, namely whether a marine feature in the South China Sea is an island or a rock, is Article 121 of the UNCLOS. If the feature in question is an island according to this article, then an EEZ can be created for the surrounding sea, but the opposite is also true if it is a rock, meaning that a legal assessment of the feature determines whether or not other countries may enjoy freedom of the high seas in the surrounding sea, including freedom of navigation, freedom of fishing, freedom of marine scientific research, etc. In other words, the issue of whether the legal status of a marine feature is an island or a rock is related to the rights and obligations of all countries, and so it is not something that ought to be settled flexibly through negotiations between the disputants China and the Philippines on a non-legal basis.
Jun Tsuruta is a professor of international law at Meiji Gakuin University.