Putting lim­its on the Law of the Sea

The China Post - - COMMENTARY -

Early in 2013, the Philip­pine gov­ern­ment i ni­ti­ated in­ter­na­tional ar­bi­tral pro­ceed­ings against China over their mar­itime dis­pute in the South China Sea. Beijing an­nounced that it would not take part, as is its right un­der the United Na­tions Con­ven­tion on the Law of the Sea. Nonethe­less, the ar­bi­tral tri­bunal gave China a Dec. 15 dead­line by which to re­spond.

On Dec. 7 — eight days be­fore the dead­line — China’s For­eign Min­istry is­sued a pol­icy pa­per set­ting out China’s le­gal ob­jec­tions to the case, ar­gu­ing that the tri­bunal lacked ju­ris­dic­tion to hear the case.

The pa­per elab­o­rated on the le­gal ba­sis for China’s po­si­tion that the tri­bunal “man­i­festly has no ju­ris­dic­tion in this case,” the For­eign Min­istry said. The pol­icy pa­per, the Chi­nese said, “does not ad­dress the sub­stan­tive is­sues in­volved in the arbitration.”

China ev­i­dently hopes the tri­bunal will dis­qual­ify it­self. Mem­bers of the tri­bunal will cer­tainly read the Chi­nese pa­per and take it into ac­count. That means China can in­flu­ence the tri­bunal while os­ten­si­bly re­fus­ing to par-


tic­i­pate in its pro­ceed­ings.

Beijing’s po­si­tion is that the only way to re­solve mar­itime dis­putes be­tween it­self and South­east Asian coun­tries is through bi­lat­eral ne­go­ti­a­tions.

Seem­ingly by co­in­ci­dence, two days ear­lier on Dec. 5, the U.S. State Depart­ment is­sued a le­gal anal­y­sis of China’s mar­itime claims, in­clud­ing a “dashed-line” on a map — some­times called a “dot­ted line” — that China uses to support its claims and which en­com­passes about 80 per­cent of the South China Sea. The area claimed by China over­laps the ex­clu­sive eco­nomic zones of sev­eral coun­tries, in­clud­ing the Philip­pines, Viet­nam, Malaysia, In­done­sia and Brunei.

China has never ex­plained the mean­ing of this claim line, never ex­plain­ing whether it claimed all the land and wa­ter within the line, or only the land and as­so­ci­ated ter­ri­to­rial wa­ters. And there has been no ex­pla­na­tion of the le­gal ba­sis of its claim line.

In its pol­icy pa­per, China takes the po­si­tion that the “in­ter­na­tional law ap­pli­ca­ble to mar­itime de­limi- tation in­cludes both the Con­ven­tion (UN­C­LOS) and gen­eral in­ter­na­tional law.” That is, the law of the sea alone is in­suf­fi­cient.

China’s po­si­tion was clar­i­fied by Xu Hong, di­rec­tor-gen­eral of the For­eign Min­istry’s depart­ment of treaty and law. Ac­cord­ing to Xu, “China’s sovereignty and mar­itime rights and in­ter­ests in the South China Sea have formed and evolved over a long course of his­tory. They are solidly grounded in his­tory and law...”

The U. S. State Depart­ment’s le­gal study ad­dresses this Chi­nese ar­gu­ment. “Had the drafters of the LOS (law of the sea) Con­ven­tion in­tended to per­mit his­toric claims of one State to over­ride the ex­pressly stated rights of other States, the Con­ven­tion would have re­flected this in­ten­tion in its text,” the study, called “Lim­its in the Seas,” de­clared.

In other words, since the law of the sea cre­ated cer­tain rights in 1982 that did not ex­ist be­fore, such as a 200-nau­ti­cal-mile ex­clu­sive eco­nomic zone, its in­ten­tion could not pos­si­bly have been to al­low other rights, such as his­toric ones, to over­ride the new ones with­out ex­pressly say­ing so in the new law.

To ar­gue that “his­toric ti­tle” and “his­toric rights” are “mat­ters not reg­u­lated by this Con­ven­tion ( and thus) con­tinue to be gov­erned by the rules and prin­ci­ples of gen­eral in­ter­na­tional law,” the study con­tin­ued, is to mis­un­der­stand the com­pre­hen­sive scope of the LOS Con­ven­tion.

Thus, the study con­cluded, a state may not dero­gate from the Con­ven­tion’s pro­vi­sions by claim­ing his­toric wa­ters or his­toric rights un­der gen­eral in­ter­na­tional law. “The Con­ven­tion,” it said, “does not per­mit a State to re­sort to gen­eral in­ter­na­tional law as an al­ter­na­tive ba­sis for mar­itime ju­ris­dic­tion that con­flicts with the Con­ven­tion’s ex­press pro­vi­sions re­lated to mar­itime zones.”

As it hap­pened, at almost the same time, Viet­nam an­nounced that it had asked the ar­bi­tral tri­bunal to take its in­ter­ests into con­sid­er­a­tion while con­sid­er­ing the Philip­pine re­quest for arbitration. Viet­nam’s dis­pute with China is wider than that of the Philip­pines since Hanoi claims all the Para­cel Is­lands, which Beijing con­trols, as well as all of the Spratlys. In fact, Viet­nam’s dis­pute is not only with China but with fel­low ASEAN mem­bers as well.

How­ever, Viet­nam clearly sees the ar­bi­tral tri­bunal as pos­sess­ing the nec­es­sary ju­ris­dic­tion to look into the Philip­pine-China dis­pute.

It is now up to the tri­bunal to de­cide if it takes up the Philip­pine com­plaint. If it de­cides that it lacks ju­ris­dic­tion, then ASEAN claimants will find their op­tions se­verely nar­rowed. How­ever, if it de­cides that it has the ju­ris­dic­tion to act, then much will hang on the ju­di­cial decision that it will reach at the end of what may well be pro­longed hear­ings, even with­out China’s di­rect par­tic­i­pa­tion.

This flurry of diplo­matic ac­tiv­ity in De­cem­ber 2014 vir­tu­ally en­sures that the South China Sea will gen­er­ate new fric­tions in 2015 be­tween China and its South­east Asian neigh­bors.

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