China Updates its Talking Points on the Philippines Arbitration

by Julian Ku

Professor Craig Allen of University of Washington alerts me to this excerpt from the press conference held yesterday at China’s Ministry of Foreign Affairs.  It is the first time, as far as I know, that a Chinese government spokesman has offered a detailed explanation of China’s legal position in the Philippines arbitration.   It still doesn’t fully make sense, or at least it is still not fully responsive, but it is something at least.  China’s explanation goes something like this.

1. It is the Philippines that is illegally occupying various islands in the South China Sea, not China.

2. Although the Philippines claims it is not seeking to contest sovereignty in the arbitration, it has consistently said it is seeking a “durable solution” to dispute.  This is “self contradictory.”

3. The principle of the “Land Dominates the Sea” means that all of the Philippines’ claims are essentially maritime delimitation claims that “inevitably” involve resolving questions of territorial sovereignty over various islands and reefs. But these are the questions excluded from UNCLOS arbitration. Hence, China’s rejection of arbitration has a “a solid basis in international law.”

4. Every nation in the region, including China and the Philippines, has committed to the Declaration of the Code of Conduct for the South China Sea, which obligates them to resolve disputes on territorial and maritime rights through bilateral negotiations.

Let’s toss out points 1 and 4 since they don’t really change much of the legal analysis on whether China’s rejection of arbitration has a “solid basis in international law.”

The really interesting parts of the statements are in points 2 and 3.  To China, the Philippines is misleading everyone by pretending to be interested in the Law of the Sea when they are really trying to advance their sovereignty claims. I am not sure that “durable solution” necessarily means “resolving sovereignty claims” but I suppose it is plausible.

The most important point is Number 3, which is that the disputes over the island/rock/reef distinction or the Nine Dash Line are so inextricably linked with sovereignty that they cannot be separated.

This is really what a jurisdictional challenge would look like, if China argued its case.  I think this is the most plausible part of China’s argument, but it is not exactly a slam dunk.  First of all, China’s invocation of the “Land Dominates the Sea” doesn’t help their argument much here since the infamous Nine Dash Line doesn’t seem to flow from any land claims, or at least China has usually based the Nine Dash Line on “historic rights,” not land.

In any event, the Philippines is not rejecting the “Land Dominates the Sea” principle.  They are just arguing that the “land” China is relying on is a rock, not an island within the meaning of UNCLOS Art. 121(3), and hence cannot grant China a 12 mile territorial sea even if China did have sovereignty.  Since some of these rocks/islands fall within the Philippines Exclusive Economic Zone, this is not a sovereignty issue but a UNCLOS issue.  I am not sure that the Philippines is right about this, but they certainly have a good case.

It is also worth noting that the Chinese statement is conspicuously silent on China’s obligation under UNCLOS to at least allow a UNCLOS arbitration tribunal to determine whether it has jurisdiction (UNCLOS Art. 288(4)).  China’s statement simply assumes that the jurisdictional issue is clear, and it has no further obligations.  As almost any lawyer could tell you, jurisdictional issues are almost never clear, and even when they are, you have an obligation to go to court/arbitration to resolve them.

So China is slowly beginning to engage on this issue, and they are making a bit of progress. Still, they need better talking points. (And they need to be careful invoking the phrases like the “Land Dominates the Sea,” that could come back to hurt them later.)

http://opiniojuris.org/2013/04/26/china-updates-its-talking-points-on-the-philippines-arbitration-still-rejects-arbitration/

2 Responses

  1. China’s press conference coincides with the appointment of the final three arbitrators to the tribunal.  See https://www.itlos.org/fileadmin/itlos/documents/press_releases_english/PR_191_E.pdf.  I see advantage to China to appearing before the tribunal to argue its jurisdictional and “insufficient negotiation” claims.  However, the fact that China did not appoint “its” arbitrator within the requisite time frame, leaving that decision to the ITLOS President per the LOS Convention, may suggest that China simply will not participate at all, even to argue these threshold claims.

  2. your points are mostly right, but there are a mistake in one paragraph:  ”hence cannot grant China a 12 mile territorial sea even if China did have sovereignty.”
    in Philippine notification,it is not written like that. Philippines objects to “more” than 12 mile belonging to a rock, thati is: a rock can not have exclusive economic zone.

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