Legal Issues in the South China Sea.

This post has been contributed by Professor Wade Mansell, Module Convener for Public international law.

The South China Sea Arbitration Case between the People’s Republic of China.  Ruling of June 12, 2016.

 ‘Between a rock and a hard island’ 

china-mapThe current disputes in the South China Sea are far from resolved, notwithstanding a ruling from the a five-judge arbitral panel created under the ‘Settlement of Disputes’ process, contained in Part XV of the UN Convention on the Law of the Sea.  Although this post will be of interest primarily to students of Public International Law, such are its implications for legal method in general that I hope it will it will have a wider readership.

In essence the dispute in the South China Sea is between states within and facing the South China Sea as to their claims of rights over that sea, together with rights over small islands and shoals and their surrounding sea beds; but it is also complicated by the interests of states beyond those shores, particularly those of the United States, but also other maritime states.  One or two historical facts are necessary for an appreciation of the issues.

  • China (the PRC) is a party to the UN Convention on the Law of the Sea, which it signed in 1982 and ratified in 1996. It has now been ratified by 168 states.  This Treaty laid down the rights of maritime (and other) states over seas and oceans.  (The USA is not a party to this Treaty).
  • This Treaty was the first UN Treaty to which China as the Peoples Republic of China, became party. Its reasons for becoming a party are interesting.  It seems that it was firstly to support developing states who supported the Treaty (anxious to secure rights over what had been international water and international sea bed), as a sign of gratitude for their support in displacing Taiwan as the Government of China in the UN.  Secondly of course, China’s economic and maritime power at the time of signing was tiny compared with 2016.
  • Nevertheless, China has consistently asserted a special status with regard to the South China Sea. At least since 1947 it has claimed that within an area inside its ‘nine dashed line’ (see map) for historical and cultural reasons, that sea and all that in it lies is effectively Chinese territory, subject (perhaps) to rights of maritime passage.
  • Unsurprisingly these claims are disputed by states which, in some cases are much closer to shoals, atolls and islands presently claimed by the PRC – and particularly by Vietnam and the Philippines.
  • The shoals, atolls and islands and their surrounding sea and sea bed, are of both strategic and economic (both fishing, and oil and gas) significance.

The dispute process was instigated when the Philippines Government requested a ruling on the compatibility with UNCLOS of a number of claims made by the PRC, particularly concerning its ‘nine dashed line’, and the geographic characteristics of specific features within the South China Sea.  (For reasons that will be known to those familiar with UNCLOS it is crucial to distinguish between islands, rocks and shoals because of the consequences in terms of sovereignty.)  Of course UNCLOS has no authority to determine sovereignty but this was an indirect request for this perhaps. The tribunal was also asked whether the construction of artificial islands was not a violation of UNCLOS provisions.  China refused to take part in the tribunal hearings, arguing that it had a bilateral agreement with the Philippines the essence of which was to provide for resolution of such disputes by negotiation between the parties, rather than through arbitration.

The Panel’s final ruling was on most points in favour of the Philippines.  Needless to say it was a ruling condemned by China (which had taken no part in the proceedings) as null and void.

What should be of interest to Public International Law students is firstly the way in which a complex historic dispute was translated into legal issues, together with the effect of such translation.  Is this another case of international law being forced to cede to the reality of international power, or is it rather that the issues defined legally, simply did not reflect the political realities within the South China Sea?

Further Reading

For an analysis of China’s position and response to the ruling click here.

For an excellent analysis of the political world within which the dispute arose, Gideon Rachman’s  Easternisation: War and Peace in the Asian Century (Bodley Head, 2016), esp. pages 104-108

For the decision itself, click here.

 

 

 

 

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