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

Mark Valencia believes China could strengthen its political and legal claims in the South China Sea

PUBLISHED : Sunday, 09 August, 2015, 9:28am
UPDATED : Friday, 20 May, 2016, 1:59pm

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.

China 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

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.

However, this would also mean that China is tacitly abandoning its nine-dashed line claim to the waters encompassed by it - if that is what the line meant.

Of course, China would still maintain its claim to all the features within the nine-dashed line and "their adjacent waters" where appropriate. Further, exclusive economic zone and continental shelf claims from legal islands in the Spratlys could encompass much of the area that fell within the line. However, boundaries would eventually have to be negotiated with other coastal states - and China should offer to do so.

China could abandon its sovereignty claims to Hughes, Mischief and Subi reefs as they are (or were) low-tide elevations and thus not subject to a sovereignty claim by any country. They are now artificial islands, and jurisdiction over them belongs to the coastal state. China could argue that they are within its jurisdiction by virtue of its exclusive economic zone and shelf claims from legal islands.

China could also claim that Fiery Cross, Johnson South and Cuarteron reefs are legal islands entitled to a full suite of maritime zones. To formally do so, China needs to publicise its claim and deposit charts and coordinates of its claimed territorial sea and/or baselines around them with the UN. It should do the same for any other claims it makes in the Spratlys.

As for its "behaviour", China could argue in the court of public opinion along the following lines.

While China demonstrated restraint, other claimants aggressively and illegally occupied features that China considers its sovereign territory. They then altered the features by adding to them, built structures, ports and airstrips, and allowed access by their militaries. They also appropriated the largest and most desirable features for themselves, leaving only the dregs and mostly submerged features for the "rightful sovereign".

Now that China is trying to "catch up" by occupying and modifying some features itself, others accuse it of not exercising "self-restraint" and thus violating the 2002 Asean-China Declaration on Conduct of the Parties in the South China Sea. More significantly, China believes the other claimants have violated the most important provision of all: "to resolve their territorial and jurisdictional disputes through friendly consultations and negotiations by sovereign states directly concerned".

To China, the Philippines' complaint was an unfriendly violation of this principle. China thinks the other claimants are also violating the self-restraint provision and international law with activities in disputed areas that change the nature of the area. China has only responded in like manner.

As for the greater scope of China's construction activities, it believes they are commensurate with its standing as the world's most populous country with the world's second-largest gross domestic product.

China's foreign ministry has stated that "China's construction projects on the islands and reefs have gone through scientific assessments and rigorous tests … We will take further steps in the future to monitor and protect the ecological environment of relevant waters, islands and reefs". China could publicise the results of its environmental assessments and invite the other claimants to do the same.

By implementing these suggestions, China could improve its legal and political position without really giving up very much. Doing so could bring its practice and policies within the scope of international law and leave the question of sovereignty and ultimately maritime boundaries to be resolved by future generations.

In the interim, jointly developing resources remains a possibility.

Mark J. Valencia is an adjunct senior scholar at the National Institute for South China Sea Studies, Haikou