International Law and the South China Sea


China’s position paper published on December 7, 2014 is one of the rare documents in which Beijing officially expressed its opinions on the issues in the South China Sea as well as on the arbitration proceedings that the Philippines initiated at the Permanent Court of Arbitration in January 2013. It seems that the motivation was the December 15 deadline (which China has ignored) for its response to the Philippines’s claims before the Tribunal.

China’s views on its refusal to appear in the arbitral proceedings can be summarized in four inter-related main points. First, lying at the heart of the disputes between China and the Philippines is the territorial claims over sovereignty over the archipelagos in the area, rather than interpreting UNCLOS. Therefore, in Beijing’s view it is beyond the scope of the jurisdiction of the Tribunal to entertain the case. Second, China stresses that the Philippines has to respect bilateral statements between them as well as the 2002 ASEAN-China Declaration on the Conduct of Parties in the South China Sea (DOC), in which they agreed to solve their maritime issues through negotiations alone. Third, even if the Philippines has the right to bring the case to the Tribunal, China is not bound by it as in 2006 it submitted a declaration to the United Nations exempting itself from compulsory arbitration and other dispute settlement procedures. And finally, the fact that China has never chosen the other options for arbitration provided by UNCLOS leads to a violation in international law.

It is easy to see that the main argument of China in its position paper is that the Tribunal lacks the jurisdiction to entertain the case. The fact that China focuses on jurisdiction rather than displaying comprehensive counterclaims is hardly a surprise. Indeed, in almost every case of a default of appearance before an international court, the defendant (usually the party refusing to appear) challenges the jurisdiction of the Court. There have been more than 11 cases of default of appearance before the Permanent Court of International Justice (PCIJ) and the International Court of Justice (ICJ). With respect to the International Tribunal for Law of the Sea (ITLOS), there has been just one case where one of the parties to the dispute refused to appear before the Tribunal: the Artic Sunrise case in which the Russian Federation did not participate in the judicial proceedings. Virtually all of the defaulting parties behaved in the same way.

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