Beijing is fast approaching a Dec. 15 deadline to submit its defense in the arbitration case against its South China Sea claims brought by the Philippines. That case, brought under the UN Convention on the Law of the Sea’s (UNCLOS) compulsory dispute mechanism, is summarized here. The Chinese government has no intention of taking part in it, or refuting the Philippines’ 4,000 pages of evidence and arguments, but it has made sure that the five judges hearing the case in the Permanent Court of Arbitration take China’s arguments against their jurisdiction into account.

To that end, the Ministry of Foreign Affairs on Dec. 7 released a position paper laying out China’s legal objections to the case. Two days earlier the US State Department released a long-awaited analysis of the legality of Beijing’s South China Sea claims through its Limits in the Sea series. The timing of these two releases, both in relation to each other and to the next stage of the arbitration case, suggest that policymakers in Beijing and Washington recognize the value of occupying the legal high ground in the South China Sea and are eager to influence the arbitral tribunal even if they are not directly engaging in the case.

What does China’s position paper say?

The core of the Chinese position paper lays out Beijing’s arguments for why the arbitral tribunal at The Hague lacks jurisdiction in the Philippines’ case. China contends that:

1. At its heart the case is not about interpreting UNCLOS, but about territorial sovereignty – who owns what features – over which UNCLOS has no jurisdiction. This argument is not compelling, at least not in China’s formulation that to rule on any of the Philippines’ points, the court “would inevitably have to determine, directly or indirectly, the sovereignty over both the maritime features in question and other maritime features in the South China Sea.”

2. Even if the case were about UNCLOS, the Philippines had no right to bring it. China argues that the Philippines bound itself in both bilateral statements and especially in the 2002 ASEAN-China Declaration on the Conduct of Parties in the South China Sea (DOC) to only resolve disputes through negotiation. Whether or not any such binding obligation was made is highly suspect, but Manila could easily argue that Chinese violations have nullified the DOC regardless.

Read more: http://nationalinterest.org/blog/the-buzz/china-americas-dueling-south-china-sea-papers-11830