Wednesday 20 Feb 2019 | 21:16 | SYDNEY
Wednesday 20 Feb 2019 | 21:16 | SYDNEY

South China Sea: Why Beijing avoids the court


12 December 2014 08:09

By Jessica Tang, an intern with the Lowy Institute's East Asia Program. She holds a Juris Doctor with a specialisation in international law and a Bachelor of Arts with a major in Chinese language from the University of Melbourne.

On 7 December, China's Ministry of Foreign Affairs released an official position paper outlining China's legal position on the South China Sea UNCLOS arbitration. This paper appears to serve two purposes.

First, China seeks to indirectly participate in the arbitration without formally acknowledging its legitimacy. While the Foreign Ministry has timed the release of this paper to coincide with the 15 December deadline for China to file an official response to the Philippine submission, it has chosen not to submit this paper formally. As Julian Ku of Opinio Juris aptly puts it:

It's the best of both worlds for China, since if the tribunal is influenced by the position paper, then this is good for China. If the tribunal ultimately reject the legal position and asserts jurisdiction, China will be able to say that it never actually participated in the arbitration anyway.

Not only does this allow China to maintain the position that it is not legally bound by any decision of the Tribunal, it also means China will not create a precedent for itself to make appearances at potential future UNCLOS tribunals initiated by other states in the South China Sea.

Second and arguably more important for China, is the ancillary purpose of this paper: to reinforce its bottom line that territorial disputes in the South China Sea must be resolved through non-adversarial means. As repeated throughout the paper and in its concluding comments, 'China always maintains that the parties concerned shall seek proper ways and means of settlement through consultations and negotiations...all parties concerned should engage in dialogue and cooperation'.

China's preference for a diplomatic solution reflects its own doubts as to the legal merits of its claims in the South China Sea – namely, the nine-dashed-line. The recent (and also timely) release of the State Department's Limits in the Sea study seems to support this view. As already discussed on The Interpreter, the US study assesses three interpretations of the nine-dashed-line:

  1. China claims territorial rights over islands within the nine-dashed-line and UNCLOS territorial and EEZ rights relating to those islands.
  2. China claims that the nine-dashed-line delineates maritime/national boundaries.
  3. China makes a historic claim to the area of the South China Sea within the nine-dashed-line.

The report finds the first interpretation to hold legal merit (with some caveats), but finds that the broader maritime and historic interpretations stand on more tenuous grounds.

Although, in principle, China should not be bothered by the US' 'impartial' report, it clearly was. As China's Ministry of Foreign Affairs spokesperson told a press conference on Wednesday:

China's sovereignty over the South China Sea and claims to the relevant rights were formed over the long course of history...The US report turns a blind eye to basic facts and international jurisprudence. It is a violation of the US commitment of not taking position or taking sides on the South China Sea issue, and will by no means help resolve the South China Sea disputes or contribute to peace and stability in the South China Sea. China urges the US side to strictly honor its commitment, be prudent in words and deeds, and approach and handle the relevant issues in an objective and impartial manner.

If the Foreign Ministry's reaction is anything to go by, it appears China may be at least considering the broader interpretations of the nine-dashed-line offered by options two and three – why else would they be so offended?

The upshot of the Chinese position paper and US report is that while China casts broad historic claims in relation to the nine-dashed-line, it knows these claims are unlikely to withstand the scrutiny of international law. As such, China will continue to avoid legal disputes and pursue 'direct negotiations and friendly consultations', where at least it will have the option to assert its political clout.

'Peace Palace by Night' by Lybil BER. Licensed under GFDL via Wikimedia Commons.

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