In just a few weeks, international judges will begin to consider the legality of China’s ‘U-shaped line’ claim in the South China Sea. The venue will be the Permanent Court of Arbitration in The Hague and the Court’s first step – during deliberations in July – will be to consider whether it should even consider the case. China’s best hope is that the judges will rule themselves out of order because if they don’t, and the Philippines’ case proceeds, it’s highly likely that China will suffer a major embarrassment.
The Philippines wants the Court to rule that, under the UN Convention on the Law of the Sea (UNCLOS), China can only claim sovereignty and the rights to resources in the sea within certain distances of land territory. If the court agrees, it will have the effect of shrinking the vast ‘U-shaped line’ to a few circles no more than 24 nautical miles (about 50km) in diameter.
China is not formally participating in the case but it has submitted its arguments indirectly, particularly through a ‘Position Paper’ it published last December. The Paper argued that the Court shouldn’t hear the Philippines’ case until another court had made a ruling on all the competing territorial claims to the different islands, rocks and reefs. This is the issue that the judges will have to consider first.
China’s strategy in the ‘lawfare’ over the South China Sea is to deploy historical arguments in order to outflank arguments based on UNCLOS. China increasingly seems to regard UNLCOS not as a neutral means of resolving disputes but as a partisan weapon wielded by other states in order to deny China its natural rights.
But there is a major problem for China in using these historical arguments. There’s hardly any evidence for them.