How China will shape debate over troubled waters

Frank Ching December 31, 2014 10:03

Early in 2013, the Philippine government initiated international arbitral proceedings against China over their maritime dispute in the South China Sea.

Beijing announced that it would not take part, as is its right under the United Nations Convention on the Law of the Sea.

Nonetheless, the arbitral tribunal gave China a Dec. 15, 2014 deadline by which to respond.

On Dec. 7, eight days before the deadline, China’s foreign ministry issued a policy paper setting out China’s legal objections to the case, arguing that the tribunal lacked jurisdiction to hear it.

The paper elaborated on the legal basis for China’s position that the tribunal “manifestly has no jurisdiction in this case,” the Foreign Ministry said. The policy paper, the Chinese said, “does not address the substantive issues involved in the arbitration”.

China evidently hopes the tribunal will disqualify itself.

Members of the tribunal will certainly read the Chinese paper and take it into account. That means China can influence the tribunal while ostensibly refusing to participate in its proceedings.

Beijing’s position is that the only way to resolve maritime disputes between itself and Southeast Asian countries is through bilateral negotiations.

Seemingly by coincidence, two days earlier, on Dec. 5, the US State Department issued a legal analysis of China’s maritime claims, including a “dashed line” on a map – sometimes called a “dotted line” – that China uses to support its claims and which encompasses about 80 percent of the South China Sea.

The area claimed by China overlaps the exclusive economic zones of several countries, including the Philippines, Vietnam, Malaysia, Indonesia and Brunei.

China has never explained the meaning of this claim line, never explaining whether it claimed all the land and water within the line, or only the land and associated territorial waters. And there has been no explanation of the legal basis of its claim line.

In its policy paper, China takes the position that the “international law applicable to maritime delimitation includes both the convention [UNCLOS] and general international law”.

That is, the law of the sea alone is insufficient.

China’s position was clarified by Xu Hong, director general of the foreign ministry’s department of treaty and law.

According to Xu, “China’s sovereignty and maritime rights and interests in the South China Sea have formed and evolved over a long course of history. They are solidly grounded in history and law…”

The US State Department legal study addresses this Chinese argument.

“Had the drafters of the LOS [law of the sea] Convention intended to permit historic claims of one state to override the expressly stated rights of other states, the convention would have reflected this intention in its text,” the study, called “Limits in the Seas”, declared.

In other words, since the law of the sea created certain rights in 1982 that did not exist before, such as a 200-nautical-mile exclusive economic zone, its intention could not possibly have been to allow other rights, such as historic ones, to override the new ones without expressly saying so in the new law.

To argue that “historic title” and “historic rights” are “matters not regulated by this convention [and thus] continue to be governed by the rules and principles of general international law” is to misunderstand the comprehensive scope of the LOS Convention, according to the study.

Thus, the study concluded, a state may not derogate from the convention’s provisions by claiming historic waters or historic rights under general international law.

“The convention does not permit a state to resort to general international law as an alternative basis for maritime jurisdiction that conflicts with the convention’s express provisions related to maritime zones,” it said.

As it happened, at almost the same time, Vietnam announced that it had asked the arbitral tribunal to take its interests into consideration while considering the Philippine request for arbitration.

Vietnam’s dispute with China is wider than that of the Philippines since Hanoi claims all the Paracel Islands, which Beijing controls, as well as all of the Spratlys.

In fact, Vietnam’s dispute is not only with China but with fellow ASEAN members as well.

However, Vietnam clearly sees the arbitral tribunal as possessing the necessary jurisdiction to look into the Philippine-China dispute.

It is now up to the tribunal to decide if it takes up the Philippine complaint.

If it decides that it lacks jurisdiction, then ASEAN claimants will find their options severely narrowed.

However, if it decides that it has the jurisdiction to act, then much will hang on the judicial decision that it will reach at the end of what may well be prolonged hearings, even without China’s direct participation.

This flurry of diplomatic activity in December 2014 virtually ensures that the South China Sea will generate new frictions in 2015 between China and its Southeast Asian neighbors.

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Frank Ching

Frank Ching opened The Wall Street Journal’s Bureau in China in 1979. He is now a Hong Kong-based writer on Chinese affairs.