The Buzz

China and America's Dueling South China Sea Papers

Beijing is fast approaching a Dec. 15 deadline to submit its defense in the arbitration case against its South China Sea claims brought by the Philippines. That case, brought under the UN Convention on the Law of the Sea’s (UNCLOS) compulsory dispute mechanism, is summarized here. The Chinese government has no intention of taking part in it, or refuting the Philippines’ 4,000 pages of evidence and arguments, but it has made sure that the five judges hearing the case in the Permanent Court of Arbitration take China’s arguments against their jurisdiction into account.

To that end, the Ministry of Foreign Affairs on Dec. 7 released a position paper laying out China’s legal objections to the case. Two days earlier the US State Department released a long-awaited analysis of the legality of Beijing’s South China Sea claims through its Limits in the Sea series. The timing of these two releases, both in relation to each other and to the next stage of the arbitration case, suggest that policymakers in Beijing and Washington recognize the value of occupying the legal high ground in the South China Sea and are eager to influence the arbitral tribunal even if they are not directly engaging in the case.

What does China's position paper say?

The core of the Chinese position paper lays out Beijing's arguments for why the arbitral tribunal at The Hague lacks jurisdiction in the Philippines' case. China contends that:

1. At its heart the case is not about interpreting UNCLOS, but about territorial sovereignty - who owns what features - over which UNCLOS has no jurisdiction. This argument is not compelling, at least not in China's formulation that to rule on any of the Philippines' points, the court "would inevitably have to determine, directly or indirectly, the sovereignty over both the maritime features in question and other maritime features in the South China Sea."

2. Even if the case were about UNCLOS, the Philippines had no right to bring it. China argues that the Philippines bound itself in both bilateral statements and especially in the 2002 ASEAN-China Declaration on the Conduct of Parties in the South China Sea (DOC) to only resolve disputes through negotiation. Whether or not any such binding obligation was made is highly suspect, but Manila could easily argue that Chinese violations have nullified the DOC regardless.

China also argues that the Philippines has not met the UNCLOS requirement to only pursue compulsory arbitration after failing to reach a bilateral accord. Beijing insists that despite decades of discussions, "the two countries have never engaged in negotiations with regard to the subject-matter of the arbitration," and even if they did, UNCLOS does not specify a time limit for such negotiations. If accepted, this line of reasoning would preclude a country from ever using compulsory dispute resolution no matter how long another claimant stonewalls discussions.

1. Even if Manila did have the right, China is exempted from compulsory arbitration. This is Beijing's most compelling argument. It rests on China's 2006 declaration, as allowed by UNCLOS, that it is exempt from arbitration on certain topics including maritime delimitation. The Philippines has done an admirable job of framing its case as being about China's obligation to clarify the nine-dash line and about the status of features, not about delimiting disputed waters.

But Manila's argument is not a slam dunk. Most worrying for the Philippines is that its lawyers felt compelled to include an argument about the status of Itu Aba, the largest of the Spratly Islands, in its March 30 submissions to the court. Were the tribunal to rule Itu Aba (or any other feature) an island legally capable of generating a continental shelf, then it would likely undermine parts of the Philippine case, especially those pertaining to low-tide elevations. But it is noteworthy that China's position paper does not detail this point, leaving it to the arbitral judges to connect the dots.

1. Even if China were not exempt, the use of a special arbitral tribunal in cases in which a state has not selected one of the other options for arbitration permitted by UNCLOS violates international law. This is essentially questioning an UNCLOS provision to which China agreed in 1996. It is the least compelling of China's arguments, not least because it is hard to fathom that a court established under the provisions of UNCLOS would feel empowered to overturn the only sensible interpretation of one of those provisions.

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