South China Sea: Why Beijing avoids the court


On 7 December, China’s Ministry of Foreign Affairs released an official position paper outlining China’s legal position on the South China Sea UNCLOS arbitration. This paper appears to serve two purposes.

First, China seeks to indirectly participate in the arbitration without formally acknowledging its legitimacy. While the Foreign Ministry has timed the release of this paper to coincide with the 15 December deadline for China to file an official response to the Philippine submission, it has chosen not to submit this paper formally. As Julian Ku of Opinio Juris aptly puts it:

It’s the best of both worlds for China, since if the tribunal is influenced by the position paper, then this is good for China. If the tribunal ultimately reject the legal position and asserts jurisdiction, China will be able to say that it never actually participated in the arbitration anyway.

Not only does this allow China to maintain the position that it is not legally bound by any decision of the Tribunal, it also means China will not create a precedent for itself to make appearances at potential future UNCLOS tribunals initiated by other states in the South China Sea.

Second and arguably more important for China, is the ancillary purpose of this paper: to reinforce its bottom line that territorial disputes in the South China Sea must be resolved through non-adversarial means. As repeated throughout the paper and in its concluding comments, ‘China always maintains that the parties concerned shall seek proper ways and means of settlement through consultations and negotiations…all parties concerned should engage in dialogue and cooperation’.

China’s preference for a diplomatic solution reflects its own doubts as to the legal merits of its claims in the South China Sea – namely, the nine-dashed-line. The recent (and also timely) release of the State Department’s Limits in the Sea study seems to support this view. As already discussed on The Interpreter, the US study assesses three interpretations of the nine-dashed-line:


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