Putting limits on the Law of the Sea

By Frank Ching

Early in 2013, the Philippine government initiated 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 �X eight days before the deadline �X 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 participate 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 �X sometimes called a ��dotted line�� �X 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 delimitation 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…��