What China can do to build its case in South China Sea territorial claims

For its policies and actions in the South China Sea, China has been accused of being aggressive; bullying other claimants; violating previous agreements, international law and norms; militarising features; undermining the status quo; generating instability; damaging the environment and threatening freedom of navigation. More awkward politically, the Philippines has filed a complaint against China under the dispute settlement mechanism of the 1982 UN Convention on the Law of the Sea.

The complaint requests that the Permanent Court of Arbitration declare, among other things, that Mischief Reef is a submerged feature and part of the continental shelf of the Philippines, so China must terminate its occupation and activities there; that the Hughes, Gaven and Subi reefs are submerged at high tide and are not located on China's continental shelf, so China must terminate its occupation and activities on these features; and that the Johnson, Cuarteron and Fiery Cross reefs are "rocks" that generate only a 12-nautical-mile territorial sea, and that China has unlawfully claimed maritime jurisdiction beyond 12 nautical miles.

China has refused to participate in the process, arguing that the court has no jurisdiction because the main issues are sovereignty and boundary delimitation.

The court's ruling on jurisdiction is expected in a few months. If the court finds that it does have jurisdiction regarding at least part of the complaint, the Philippines will probably file a request for "provisional measures", specifically that China cease and desist all reclamation and construction. Although China claims to have ceased reclamation, it will likely continue "construction", and there may now be an argument regarding the differences between reclamation and construction.

A decision on provisional measures could be swift. A decision on the merits of the original complaint could take a year or more. China is unlikely to abide by any negative decision, and the court has no enforcement mechanism.

Nevertheless, China is in a difficult political and legal situation. It is in danger of being branded an "international outlaw" and being estranged politically from some of its Southeast Asian neighbours as they hedge towards the US for protection. To avoid this fate and improve its political and legal position, China needs to be proactive in word and deed.

First and foremost, China could clarify that it believes that some of the features it claims are legal islands (for example Spratly, Taiping and Thitu) and part of its continental shelves, thus entitling it to exclusive economic zones.

This would make sovereignty and boundary delimitation the central issues of the complaint before the Permanent Court of Arbitration and thus outside its jurisdiction.