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A Dispute about Legality, or a Political Onslaught? China’s Response to the Arbitration Decision on the South China Sea Issue

Peter A Dutton
Commentary, 8 August 2016
China, Asia
China has advanced a number of arguments to justify its decision to ignore the arbitral tribunal’s recent ruling on the South China Sea dispute. None of them make much legal sense, but all raise questions about China’s views of the international order.

Immediately following the 12 July decision of the arbitral tribunal’s hearing on the South China Sea dispute between the Philippines and China, the People’s Republic embarked on a major media offensive, with Liu Xiaoming, the Chinese Ambassador to London, attacking the decision as illegal, and ‘a political farce’. No criticism avenue was spared. China’s vice foreign minister even wondered why there were no Asians on the tribunal, evidently implying that the race and nationality composition of the tribunal somehow automatically impaired its fairness. In its war of words, Beijing criticised everyone and everything, from the US, to Japan, and of course the Philippines for their direct role in the legal upset. With raw emotions now fading and no sign of a possible Sino–Philippine deal resulting from the ruling, it is time for a more reasoned reflection on the case.

One of China’s criticisms is that others wrote many of the rules of the current global order –  that the West authored rules before China’s rise, and without China’s assent. In fact, the United Nations Convention of the Law of the Sea (UNCLOS), which provided the legal basis for the arbitral tribunal’s ruling, was only concluded in 1982. Chinese negotiators took an active part in the drafting of the convention, and China exercised its sovereign will in accepting the benefits and responsibilities laid down therein by signing and ratifying the convention in 1996. In other words, this is not a circumstance in which China was dragged into court defending an obligation imposed on it during the so-called ‘century of humiliation’ (the period of intervention and imperialism by Western Powers and Japan in China between 1839 and 1949). There are many ways by which China derives benefits from the convention’s operation, such as the guarantee of resource rights in its exclusive economic zone and on the continental shelf, the assurance that its ships have the right to freely navigate around the globe, and a seat for a Chinese judge on the International Tribunal for the Law of the Sea. In other words, China is happy to accept the benefits, but evidently not the burdens of the convention.

Specifically, Part XV of the convention provides for mandatory dispute resolution over issues regarding the interpretation of its provisions. So, when the Philippines believed negotiations with China over their South China Sea issues had broken down to such an extent that further progress was unlikely, they had the right to resort to arbitration to resolve them. The Chinese refutation of this right simply does not hold water. And there are three other claims that China has made since the ruling, which also require analysis.

First, China claims the Philippines created a binding agreement to resolve its South China Sea disputes through bilateral negotiation, so the Philippines either explicitly gave up its rights of arbitration under UNCLOS, or should have followed the route of bilateral negotiation instead of arbitration. The tribunal carefully considered China’s argument on this point and rejected it with the finding that the agreements between China and the Philippines were political statements, not binding legal arrangements. Implicit in the tribunal’s decision is the sensible notion that a strong country should not be allowed to box a weaker state into a situation in which it can no longer avail itself of its dispute settlement rights under international conventions. Accepting the Chinese argument would have rendered useless large and important parts of the convention.

Second, China claimed that UNCLOS creates no right for the Philippines to subject its dispute to arbitration. This too is clearly wrong. The tribunal again carefully considered China’s arguments on this point and found them lacking. Of course, China had the right to remove from the tribunal’s consideration questions of sovereignty over the islands, questions of maritime boundary delimitation, questions about its military and law enforcement activities, and questions about historic title; by and large, these issues were not in play before the tribunal. But where they were, as in the case of the PLA Navy and Chinese Coast Guard’s interference with the Philippine Navy’s resupply of its troops on Second Thomas Shoal, the tribunal found in China’s favour. The tribunal reasonably determined, however, that questions about the maritime entitlements of the various Spratly islets were not the same as questions about who owns them or how to delimit overlapping boundaries. And on the historic title issue, the tribunal performed a thorough legal analysis and determined that China’s claim of historic fishing rights had nothing to do with historic title – full ownership, in other words ­– over the waters of the South China Sea. Accordingly, China was given a fair hearing and lost on most, but not all, of these points.

Lastly, China claimed that international law does not recognise the effect of the tribunal’s decision. It is almost impossible to know what to make of that argument, since clearly international law practice points in a different direction. The tribunal’s finding is a product of one of the world’s most widely accepted international agreements, the United Nations Convention on the Law of the Sea. The tribunal was constituted in accordance with the convention’s provisions, its judges were among the world’s most learned experts, and its decision was based on a thorough and detailed analysis of the relevant international law. So, contrary to Chinese claims, authoritative international law permeates every aspect of the decision. Furthermore, the tribunal made every effort to address issues raised by the Chinese government, even as China refused to participate. As such, the decision now provides a yardstick against which all parties’ future actions in the South China Sea will be measured. The opinion will therefore do what international law was designed to do – it will either legitimise or delegitimise a state’s actions.

It is now up to China to show what kind of state it will be – one that supports or one that undermines the legitimacy of international law and the institutions that support it. The answer will matter to a great number of potential future partners, especially as China seeks to expand its relationship with many other nations through the Silk Road Initiative. Many will look closely at China’s behaviour to assess how it would act as a potential future partner. And, just as China seeks to draw closer to the UK and Europe more generally, how China behaves in regard to its commitments under the United Nations Law of the Sea Convention will perhaps speak of its reliability as a partner in any future endeavours.

Professor Peter A Dutton is Director of the China Maritime Studies Institute at the US Naval War College and an Adjunct Professor of Law at New York University. The views expressed here are the author's own.

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