The Fog of Law: China's Great South China Sea Dilemma
Richard Javad Heydarian
December 19, 2014
Recent months have witnessed an impressive
Chinese diplomatic blitzkrieg, with President Xi Jinping and Premier Li Keqiang feverishly courting friends and foes alike, proposing
ambitioustrading agreements and acquiescing to various confidence building measures (CBMS) aimed at de-escalating geopolitical tensions in the region. But China’s intensifying legal battle with the Philippines has injected new uncertainties into the picture. What has emerged in recent days is a new chapter of confrontation between Beijing and its Southeast Asian neighbors, particularly Manila and Hanoi. Interestingly, the United States has joined the legal fray
by expressing its stance on—or, to put it more accurately, criticism of—China’s expansive territorial claims in the South China Sea.
The Fog of Law
On the surface, China’s claims seem to be unambiguously ambitious and provocative. Latest Chinese
maps indicate Beijing claims sovereignty over almost the entirety of the South China Sea. Drawing on the doctrine of “historical rights”, China claims “inherent and indisputable” sovereignty over much of the South China Sea. A deeper look, however, reveals the inherently ambiguous nature of China’s claims: It is still unclear whether China is treating the disputed waters as a virtual internal lake, or, alternatively, only laying claim to individual features and their surrounding territorial waters. Beijing has yet to clarify the precise coordinates of the “nine-dash-line” doctrine, which
hasn’t been consistently laid out in Chinese documentations.
The emerging consensus is that the ambiguity is deliberate and strategic: China, through its expansive (but imprecise) cartographic claims, can project toughness and patriotic ambition before a hypernationalist domestic audience without risking the legal ramifications of explicitly defending what many see as inherently indefensible maritime claims.
Lawyers rarely agree on anything.
But based on my recent conversations with leading international-law experts, here in the United States and beyond, practically everyone agrees that China’s notorious “nine-dash-line” doctrine has little basis in modern international law, specifically the United Nations Convention on the Law of the Sea (UNCLOS). As an artery of global trade, the South China Sea is by no means a bay or any near-coastal water that can be subjected to historical, rights-based claims. Not to mention, China has neither exercised continuous and uncontested control over the area, nor have its neighbors formally accepted China’s ambitious claims. Throughout the postcolonial period, China’s newly independent Southeast Asian neighbors, from the Philippines to Malaysia and (South and North) Vietnam, have assiduously sought to fortify their positions in the South China Sea.
The UNCLOS, which came into effect in the immediate aftermath of the end of Cold War, provided new sets of principles to guide maritime sovereignty claims, determine maritime delimitation issues and steer a rules-based resolution of territorial disputes. As a signatory to the UNCLOS, all key claimant states in the South China Sea are expected to play by the existing rules of the game. (Although Washington is not a signatory to the UNCLOS, thanks to the intransigence of a hardline minority in the U.S. Senate, it has observed the principles of UNCLOS in actual policy.) To be fair, China has (under Article 298 of the UNCLOS)
opted out of compulsory arbitration over territorial delimitation, military and sovereignty-related issues. So it should come as no surprise that Beijing has boycotted
the arbitration procedures, initiated by the Philippines (under Article 287 and Annex VII of the UNCLOS) in 2013, under the aegis of the Arbitral Tribunal at The Hague.
Shortly before the December 15 deadline to submit its defense to the Arbitral Tribunal, China released (December 7) a
position paper, which forwarded three major arguments: First, the arbitration body has no jurisdiction over the Philippines’ complaint, which fundamentally concerns questions of sovereignty; second, China has “indisputable and inherent sovereignty” over the disputed features in the South China Sea, since its “historical rights” transcend the jurisdiction of the UNCLOS; and lastly, the Philippines has violated prior agreements, both bilateral and multilateral, by initiating compulsory arbitration over the South China Sea disputes.
A United Front
The Philippines, however, maintains that it is precisely China that has violated prior agreements, particularly the
2002 Declaration on the Conduct of Parties in the South China Sea (DOC), which explicitly discourages competing parties from unilaterally altering the status quo in disputed areas. In recent years, China has
expanded construction activities in both the Paracel and Spratly islands, widened its paramilitary patrols across disputed waters and coercively challenged the Philippines’ claims in the Scarborough Shoal (2012) and the Second Thomas Shoal (since mid-2013).
Moreover, the Arbitral Tribunal, the Philippines argues, has the mandate to determine whether the complaint against China falls under its jurisdiction, despite China’s expressed opposition to compulsory arbitration. To skirt around the issue of sovereignty, which transcends the jurisdiction of the Arbitral Tribunal, the Philippines astutely framed its case as one that concerns (i) the determination of the validity of China’s claims based on the provisions of the UNCLOS, and (ii) the determination of the nature of the disputed features (Article 121), specifically whether they can be appropriated, as well as generate their own territorial waters. It is conceivable that the Arbitral Tribunal will assert jurisdiction over the disputes, as well as assess the merits of the Philippines’ memorial before the end of 2016.
Although the United States doesn’t take a position on competing sovereignty claims in the South China Sea, it has indirectly supported the Philippines’ position by (i) calling for the resolution of the disputes in accordance to the international law (i.e., UNCLOS) and (ii) explicitly
questioning the validity of China’s “nine-dash-line” doctrine. As a treaty ally, Manila, quite naturally, expects maximum support from Washington amid the ongoing disputes. So far, however, the Obama administration
hasn’t explicitly guaranteed American military support in an event of conflict over disputed features within the Philippines’ 200-nautical-mile Exclusive Economic Zone (EEZ). The Obama administration is engaged in a broader balancing act, which tries to maintain stable bilateral ties with China on one hand, and express American commitment to its bilateral security alliance with the Philippines on the other.