China and the Philippines Take Their “Battle” Over South China Sea to Military Conference

by Julian Ku

The indefatigable Benjamin Wittes at Lawfare has a short post describing a lively exchange between the Chinese and Filipino representatives at MILSOPS, an invitation-only off-the-record meeting of top military officials from the Asia-Pacific region, about China’s nine-dash-line claim to the South China Sea.

Apparently, this has been an ongoing debate at this annual conference. Last year, the Chinese representative presented this set of powerpoint slides usefully entitled:  “China has indisputable sovereignty over the islands in the South China Sea: Understanding the South China Sea issue from the angle of law”.  (The title says it all). Ben says he is somewhat constrained in his reporting since the conference is off-the-record, but hopefully he can get participants to write more about their exchange.

The one thing that is a constant in these slides and from other articles from China is that Chinese officials are using their claim to sovereignty over the “Nansha” islands as the basis for their claims of “indisputable sovereignty.”  And China does indeed have plausible sovereignty claims to many of the islands in the South China Sea, and those sovereignty claims are of course not subject to UNCLOS arbitration.  But no one in China has really offered a particularly detailed explanation of how the sovereignty claims to the islands can justify the “nine-dash line” (see my earlier post here describing the nine-dash line claim) which goes well beyond a 12 mile territorial sea or the 200 mile exclusive economic zone. Thus, even if China had sovereignty over every random rock in the South China Sea, it can’t quite support the nine-dash line.  I wish Chinese scholars would offer a more comprehensive explanation or defense of the nine-dash line, as oppose to muddying the issue by raising their island sovereignty claims.  It is the nine-dash line that makes China’s claims unusual, and particularly dangerous.  And, oddly, it overshadows and weakens China’s much better and more legally supportable claims to particular South China Sea islands.

http://opiniojuris.org/2013/06/04/china-and-the-philippines-take-their-battle-over-south-china-sea-to-military-conference/

4 Responses

  1. That China takes all this to a military operations conference is a fairly thinly veiled expression of a military threat on this.  That the Philippines speaker used such wonderful imagery (steals your coat and says you can wear it on alternate days – just brilliant) shows that sovereigns are playing the cold hard game of international relations.
    If the legal arguments of China were so strong, they would test them in an arbitral tribunal.  Chinese state exertion of raw naked power politics showing itself with instrumentalization of rule of law.
    Hope WWIII is not starting.
    Best,
    Ben

  2. “I wish Chinese scholars would offer a more comprehensive explanation or defense of the nine-dash line, as oppose to muddying the issue by raising their island sovereignty claims.  It is the nine-dash line that makes China’s claims unusual, and particularly dangerous.  And, oddly, it overshadows and weakens China’s much better and more legally supportable claims to particular South China Sea islands.”
    If the 9-dashed line is only a claim to the islands then it has some plausibility (*). But China wants more than the islands and the maritime zones that can be reasonably derived using UNCLOS and maritme delimiation jurisprudence – it wants all the matitime space  inside the 9-dashed line. This ambition has no legal basis. Therefore China conflates the 9-dashed line as an ambiguous claim to this maritime space with the claim to the islands, in an attempt to give the former the plausibility of the latter.
    (*) While China’s claim to the islands has some plausibility, Professor of International Law Monique Chemillier-Gendreau argues in her book, Sovereignty over the Paracel and Spratly Islands, that it is weak,
    http://books.google.co.uk/books?id=58q1SMZbVG0C&printsec=frontcover&source=gbs_ge_summary_r&cad=0#v=onepage&q&f=false
    The reason she gave is that China’s historical evidence is not evidence of State declaration and execercise of sovereignty, which are required by international law for a title.
    Regarding China’s claim to the Spratlys, Chemillier-Gendreau includes in her book a letter that the Chinese Legation in Paris sent to the French government in 1932 asserting that the Paracels formed the southernmost Chinese territories, which means that as recent as 1932 China did not view the Spratlys as belonging to it.

  3. I would also like to add: if a claimant thinks that its claims (whether to the islands or to maritime space) have the stronger legal basis, it should have the courage on conviction and be prepared to have the matter settled in Court. 

Trackbacks and Pingbacks

  1. [...] China and RP Clash at Conference Over Claims (via Opinio Juris) [...]