Assessing the Fallout from the South China Sea Award

by Julian Ku

In addition to my posts here (see below), I have several  pieces over the last week discussing different aspects of the South China Sea award up at various outlets across the web universe (I know, I know, I need to stop writing about this topic, but indulge me just a little longer).  To briefly recap my various takes, here is a quick summary:

As a legal matter, China lost every substantive issue before the South China Sea arbitral tribunal.  I argued here at Lawfare that the award “dramatically widens” the scope of future more aggressive U.S. freedom of navigation operations by, for instance, eliminating any legal basis for a Chinese territorial sea around its artificial island on Mischief Reef.  Since that reef is also within the Philippines’ exclusive economic zone, the U.S. Navy has (as a legal matter) carte blanche to sail or fly within 500 meters of what is now an artificial island in clear violation of Philippines’ rights under UNCLOS.

On the other hand, I warned here in The National Interest that the arbitral award does not require China to leave the South China Sea or the Spratlys in particular.  The award leaves open the legal possibility for China to claim a series of 12 nautical mile territorial seas around various rocks in the island group. This means that even in China complied with the award, it would have the legal right to maintain a robust presence there.

Taking a step back, I also blamed China’s government (in this piece for Quartz) for exacerbating the negative impact of the award by refusing the participate in the proceedings and then starting a global media war against it.  This drew much more attention to the award than would have otherwise been the case.

Finally, over at Foreign Policy, I offered a very tough critique of the role of Chinese international law scholars in bolstering the Chinese government’s claim that it can legally ignore the arbitration.  It is not so much that Chinese international legal scholars were wrong, but that their unanimity weakens their long-term credibility on the global stage.  I contrast the unanimity within China’s academic community with the much-divided U.S. academic reaction to the U.S. government’s refusal to comply with the ICJ’s Nicaragua judgment in 1986.

For any Chinese-language readers out there, I have been engaging in a debate (thanks to the fabulous translation work of my student Weitao Chen) at the Financial Times (Chinese edition) with Professor Liu Haiyang on China’s obligation under UNCLOS Article 288(4) to accept the arbitral tribunal’s determination of its own jurisdiction. Here was my initial essay, here is Prof. Liu’s response, and here is my rebuttal.  Annoyingly, it appears my initial essay has been censored in China, which must mean I am making good arguments!

I am not done with discussing this award, but I do need to get a life at some point. I am also trying to incorporate all of this into a larger project on China’s overall relationship with international law.  Certainly, this whole dispute will be a significant chapter in my book!

3 Responses

  1. Good articles.

    By the way, what _is_ China’s position on UNCLOS Article 288(4) with regards to the South China Sea arbitration?

    I’ve read quite a few articles and opinions about the case, and I’ve yet to see a real argument against the plain meaning of the text.

    (“In the event of a dispute as to whether a court or tribunal has jurisdiction, the matter shall be settled by decision of that court or tribunal.”)

  2. In proper context– the South China Sea case, like the Larsen v. Hawaiian Kingdom case, took place at the Hague’s Permanent Court of Arbitration (PCA), not the International Court of Justice.

    Arbitration, unless I’m mistaken, is like a trial but less formal. In arbitration, two sides present their evidence to an arbitrator. The arbitrator decides who wins and who loses, doing the job that a judge or jury would normally do in court.

    However, China (like the U.S. in the Larsen case) chose not to represent itself in arbitration and so there is no legal obligation for China to follow the ruling. PCA proceedings can only be binding if both parties are present.

    In 1999, the PCA Tribunal precluded that by the fact that the US was not a party to the proceedings and had not consented to them, that the arbitral proceedings against the Hawaiian Kingdom were not “maintainable.” Of course by doing so, the U.S. would have to recognize the Hawaiian Kingdom, and prove its claim of annexation and thus, statehood, which would be very difficult since the Kingdom was taken by a US military-backed coup, and never annexed as claimed.

    Why is China given a different standard?

    The PCA and Philippines claim that the paper China submitted in 2014 when the case was first presented was evidence of China’s participation in arbitration proceedings, however, reading China’s paper, China makes it very clear that it is not a position paper regarding the arbitration proceedings, as claimed by the PCA, but rather, “one of jurisdiction.”

    The jurisdiction referred to was the ASEAN-China “2002 Declaration on the Code of Conduct in the South China Seas.” This Declaration sought to resolve maritime disputes in the SCS bilaterally, and not plurilaterally. And the the 2002 dispute mechanism (signed by all parties) was recognized by UNCLOS.

    The Philippines broke this 2002 Declaration when it submitted its case to the PCA in 2012 despite objections from some of the other ASEAN countries. Although I have no smoking gun as proof, many suspect that President Benigno Aquino was acting as a US puppet to facilitate the Obama/Clinton “Pacific Pivot,” a military and trade rebalance in the Asia-Pacific that was launched in Hawaii during APEC in 2011.

    Regarding China’s right to the islands within its EEZ, they are not doing anything illegal under UNCLOS. Although the dispute is real, the island building conforms to UNCLOS. China is within the limits of the 200 Nautical Mile EEZ. China– to be clear– is abiding by the rules it signed when ratifying UNCLOS– what the Philippines is doing is applying a narrow reading of only the 12-nautical mile baseline, excluding an entire Chapter of UNCLOS on the EEZ which Article 46 1(b) gives China the right to the “establishment and use of artificial islands, installations and structures.” within the EEZ.

    Historically, it’s important to know that the US-backed Republic of China drew the 11-dash line in the 1930s during Japan’s occupation of China. It is only because the PRC won China in 1949, they inherited the 11-dash line and Premiere Zhou Enlai changed it to the 9-dash line around the time of the Vietnam War (when China backed the North Vietnamese), erasing the line between Vietnam and Hainan Island. Although there were tensions after the war when the Soviets leased Canh Nam Bay– when China and Russia were in dispute– issues around SCS between Vietnam and China flared only after the Soviet Union dissolved.

    It may also be important to note that the Philippines only became a State in 1946. Before that they were a territory of the US, and Vietnam was also a French territory until Vietnam proclaimed independence in 1945. When the Kuomintang were driven from China, they occupied Taiwan and technically, Taiwan and the Pescadores are still under a US military occupation. The 11-dash line baseline was drawn and internationally recognized before Philippines and Vietnam were independent.

    In my opinion, why this is all happening now is tied to the Pacific Pivot, and is part of a US-led China containment policy. Washington has been seeking to bully China into conforming to its own free-trade rules, and has been looking to push back China’s maritime territory– particularly their unfettered access to the Straits of Malacca and the East Sea. Removing China’s claim of the SCS has been part of the US agenda since 1949, has only escalated since the 2008 financial collapse. For the US, it is only through partnering with Vietnam, Malaysia, Singapore, Brunei (TPP countries), with support of the Philippines, and to a lesser degree Indonesia (Trade and Investment Framework countries), Washington feels that it can curtail China’s growth in the region. The non-aligned ASEAN countries support China, and ASEAN is a consensus-based grouping. Hence, when Washington sought to rewrite the maritime rules under the “Freedom of Navigaiton” act, there was no consensus, as seen during the ASEAN-US meeting last year at Sunnylands Ranch, CA. And finally, in context of the geopolitical, China’s One Belt One Road (OBOR) and the Asia Infrastructure Investment Bank (AIIB) are two China-led development programs that are in line with WTO rules. The US-led TPP seeks to circumvent those rules, held up by the Doha Development Round. It is the US that is working on Cooperation and Capacity Building to change the rules, not China.

    To be clear, a “plurilateral agreement” like the TPP implies that member countries would be “given the choice to agree to new rules on a voluntary basis”– and that is what the US-led free-trade and investment agreements seek to do in its rule making. Really not much to do with trade, per se, but rather policies “manufactured” under the “Cooperation and Capacity Building” Chapter in the TPP.

    Although there have been flare-ups over fishing rights, there is no evidence I have seen of China ever impeding the passage of ships through the SCS. As the U.S. has argued, there is only the “potential” of China doing something illegal, and last I looked, the potential of being able to do something is not a crime.

    In the 1996 Strait baseline document, the U.S. State Department writes: “The PRC is hardly alone in violating the spirit, if not the letter, of the 1982 UN Convention [on the Law of the Sea]. Excessive baseline claims are all too common in Asia and elsewhere. Those of Burma, Cambodia, Malaysia, North Korea, Russia, Thailand and VIetnam are as extreme as that of the PRC.” In terms of the US using diplomatic or military terms to challenge China’s claim, State Department concludes its report by saying that in order to resolve these disputes, “We must now wait for the proverbial other shoe to drop.” Again, that was from 1996.

Trackbacks and Pingbacks

  1. Suggested Web page

    Opinio Juris » Blog Archive Assessing the Fallout from the South China Sea Award – Opinio Juris