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China and America's Dueling South China Sea Papers
By Gregory B. Poling
December 10, 2014


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. 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.

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3. 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.

4. 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.

It is telling that amid its arguments against the court's jurisdiction, China also touches on the merits of the case (despite insisting in the introduction that it will not do so). In particular, it makes an argument about the ability of a state to make a claim of sovereignty over a low-tide elevation, despite acknowledging that the International Court of Justice in 2012 ruled that such a claim is not permissible. China also defends its actions at Scarborough Shoal and Second Thomas Shoal since 2012, which the Philippines describe as employing the threat of force. Yet the position paper does not address either the status of those features the Philippines identifies as rocks rather than islands, nor does it defend the nine-dash line as a claim to maritime space in accord with UNCLOS - both indicative of the weakness of China's legal position on those points.

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The State Department presents three possible interpretations of the nine-dash line and analyzes their legality. Each of these interpretations are simultaneously supported and contradicted by various Chinese legislation and official pronouncements:

1. A claim to islands and the waters they would generate. The study finds that this could be a legally consistent definition of the nine-dash line but points out that it has major caveats. For one, "states and international courts and tribunals typically accord very small islands far from a mainland coast equal or less weight than opposing coastlines." This means that China could at best justify an exclusive economic zone (EEZ) extending to a median line between its claimed islands and its Southeast Asian neighbors' coastlines.

2. A maritime boundary. The State Department points out that the nine-dash line extends too far beyond any coastline or island to be legally justifiable as the boundary of an EEZ, and certainly not territorial waters. The study also charges that the claim's lack of precision and unilateral declaration fail to meet the basic requirements of a legal maritime boundary.

3. A claim to historic title or rights. This is the most complicated of the legal justifications put forward by Chinese scholars regarding the nine-dash line. The State Department rightly points out that UNCLOS "limits the relevance of historic claims to bays and territorial sea delimitation" near a nation's coast. Nothing in the convention justifies a historical claim of sovereignty or extensive rights far from a coastline.

And contrary to some Chinese scholars' assertions that customary law predating UNCLOS would allow such a claim, the State Department rightly insists that the convention takes precedence. To prove the point, it cites the International Court of Justice's ruling that the advent of EEZs "overrides the prior usage and rights of other States in that area" - a clear refutation of China's claims to historic rights over fisheries and hydrocarbons.

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