The Buzz

Legal Face Off: Is China Making a Big Mistake in the South China Sea?

The Hague hearing on jurisdiction and admissibility of the South China Sea arbitration case has come to an end on July 13 after a weeklong process without China’s participation. The hearing has become a heated headline for medias, governments, and scholars for the past week. Questions include whether the Arbitral Tribunal will issue a decision on the jurisdiction and admissibility on July 13, who the decision might favor, to what extend the Tribunal may render its jurisdiction, if there is any, the reaction of China and the Philippines might be, and what might be the take-away for countries who sent observers to the hearing, including Malaysia, Indonesia, Vietnam, Thailand, and Japan.

China’s Ministry of Foreign Affairs spokeswoman has reiterated China’s position of “no accepting and no participating” in The Hague process, and accused as usual the Philippines’ of violating its commitment through the 2002 Declaration on Conduct (DoC) to solve the dispute through negotiations. Most traditional Chinese media stories repeated Chinese government’ position through various forms of interviews. Social media such as Weibo and Wechat invited discussions and debates among young people whose interests range widely from symbolic nationalism to geopolitics and security. Scholars of international law support China’s position by elaborating on the December 7, 2014 Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration, arguing that the Tribunal manifestly has no jurisdiction.

Despite the overwhelming support in China of its position, experts and the general public also have concerns. First, the case presented by the Philippines constitutes, at its core, a land territorial sovereignty dispute and the relevant maritime delimitation, which is excluded from the third party compulsory dispute settlement mechanism under UNCLOS, through China’s 2006 declaration. However, the way the Philippines presented its claim–it has cleverly attempted to de-link its claims from the terms of “territory,” “maritime delimitation,” and “historic title,” with the support of the experienced legal team from the United States–might have a substantial impact on the Arbitration Tribunal. China, may in turn, miss the chance to express its position in a professional legal way, as it did through the December 7, 2014 position paper. It is also questionable whether the messages that China intends to convey through amicus curiae (“friends of the court”) publications reach the five arbitrators and how much weight these may carry as effective “replies” to the Memorial of the Philippines.

In addition to the specifics of the legal debate, China’s international image is another key issue that is worrisome to many. The international media has been skewed in its writing about the escalation of the South China Sea disputes, and often depicts China’s growing assertiveness in pursing its maritime claims. China’s refusal to participate in the Arbitration is often cited by media as disrespecting the value of international law, despite Beijing’s efforts to convince itself and the world that the Tribunal does not have jurisdiction.

The interests shown in the hearing by other countries, including Malaysia, Indonesia, Vietnam, Thailand, and Japan also send signals to China as it considered possible future international litigation or arbitration of the complex territorial and maritime dispute in this region. The decision by the Tribunal, be it “no jurisdiction,” “partial jurisdiction,” or “full jurisdiction” on the Philippines’ claim, will allow other countries in the region to draw conclusions about the possibility of resorting to a third party forum for maritime dispute settlement. The position taken by China in this legal battle with the Philippines might not be a standard solution that works best for it if additional cases are brought in the future.

The Statement on the South China Sea issued by the Taiwan authority on July 7, 2015, is a timely response to the hearing at The Hague. In addition to reiterating the  ROC’s position on its sovereignty claim over the four archipelago groups in the South China Sea, the statement focuses mainly on the legal nature of Taiping Island (Itu Aba), the biggest naturally formed feature in the Spratlys. Taiwan holds that Taiping Island indisputably qualifies as an “island” according to Article 121 of the United Nations Convention on the Law of the Sea (UNCLOS), and can sustain human habitation and economic life of its own. Taipei’s statement that “[a]ny claims by other countries which aim to deny this fact will not impair the legal status of Taiping Island (Itu Aba) and its maritime rights based on UNCLOS,” is obviously a firm response to the claims by the Philippines’ legal team that deems Ita Aba a “rock.” Though there has been no official comment from Beijing on Taipei’s statement, which implies that the two governments across the strait share the same claim in the South China Sea, the declaration has defused China’s concerns that the Taiwan government might change its position on the South China Sea due to pressures from the United States. Interestingly, the Taipei’s statement did not mention the U-shaped Line, which is also a major part of the Philippines’ case. Whether this is a signal that the Taiwan government may abandon this line or deliberately overlook it remains a question, and one that will be especially salient following the “presidential campaign” in Taiwan in 2016.

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