Mekong WaveA legal battle in the South China Sea

The Philippines’ arbitral proceedings against China regarding the dispute in the South China Sea are now officially under way in the Netherlands. President Aquino's administration initiated arbitra...

The Philippines’ arbitral proceedings against China regarding the dispute in the South China Sea are now officially under way in the Netherlands. President Aquino’s administration initiated arbitration proceedings against China under Annex VII of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) on Jan 22, 2013. In response to the Philippines’ lawsuit, the People’s Republic of China on Feb 19 rejected the diplomatic note and its attached notification from Manila.

The Tribunal proceedings will be followed closely not only by Filipino and Chinese authorities, but also by the other four claimants involved in the dispute, namely Brunei, Malaysia, Taiwan and Vietnam. Among them, the Vietnamese authorities are the strongest opponents to the Chinese claims, even though it is unlikely that Hanoi will follow Manila in seeking international legal recource to challenge Beijing.

Part of the process is meant to determine if the tribunal has jurisdiction over Manila’s complaint. The case will only proceed once the tribunal decides that the complaint filed by the Philippines has legal merit and falls under its jurisdiction. In any case, the Philippines assert that China’s so-called nine-dash-line claim, which virtually encompasses the entire South China Sea, including sections that have been declared as whose own maritime zone, is contrary to UNCLOS and thus unlawful.

Although the map with the nine-dash line is said, according to Chinese sources, to have been published in 1947 or 1948 by the Chinese Ministry of Interior (that is, prior to the creation of the People’s Republic of China), China officially relied on the map for the first time in its response to the 2009 Joint Submission to the UN Commission on the Limits of the Continental Shelf (CLCS) of Vietnam and Malaysia. “To this day—write Florian Dupuy and Pierre-Marie Dupuy in a recent article published by ‘The American Journal of International Law’– the purpose behind the recent production of the map remains uncertain, as China has not clarified whether the map is to be understood as evidence supporting its claim or merely as a graphical depiction of it. More generally, it is uncertain whether the map has any legal relevance to the delimitation of China’s boundaries in the South China Sea.”

In this context, the question arises whether the map could indeed be considered as evidence in support of China’s claim. “Maps do not constitute titles in international law. The principle that emerges from international jurisprudence and doctrinal discussions is that cartographic materials do not by themselves have any legal value,” the two experts state. And it would probably be essential to know if an international court or tribunal will agree to take into account the nine-dashline map when adjudicating a potential sovereignty claim by China regarding the South China Sea.

Secondly, the Tribunal is asked to clarify if China can make its claims for land, including islands. This implies that the Tribunal will need to make a ruling on whether certain “islands” occupied by China are in fact islands. China does not distinguish between insular features that qualify as “islands” within the meaning of UNCLOS (and which would thereby generate rights to a full Exclusive Economic Zone and continental shelf) and those qualifying as “rocks” (which would thereby generate rights only to internal and territorial waters). As established by Article 121 of the UNCLOS, “Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.” This means that only features above water are considered islands capable of supporting a 12-mile territorial sea. Until today, China has never provided a legal clarification of its territorial claims in the South China Sea, basing its maritime claims on its land sovereignty.

Last but not least, the Tribunal will also have to rule on whether China’s claims to “historic rights” give it legal rights to the resources inside the nine-dashline. The first Chinese chronological reference to “historic rights” is found in China’s Exclusive Economic Zone and Continental Shelf Act of June 26, 1998.

Both Vietnamese and the Filipino authorities argue that China has no right to resources outside the 12 nautical miles of territorial sea. “In the South China Sea—East Sea as referred to by the Vietnamese–China is unable to present historical evidence of its claim. Its territory was historically limited to Hainan island; thus the Chinese used force to illegally occupy rocks, features and islands in the Paracel and Spratly archipelagos,” Prof. Pham Dang Phuoc, Rector of Pham Van Dong University, remarked at the end of the workshop ‘Sovereignty over Paracel and Spratly Archipelagos: Historical and Legal Aspects’, held in Quang Ngai at the end of April.

While the position China would adopt in a hypothetical dispute settlement procedure is unknown, “no international court or tribunal would agree to base its decision on arguments and contested evidence to the effect that China was the first country (several hundred years ago) to explore the South China Sea and discover, name, and administer its islands. Mere reliance on alleged historical evidence of the kind invoked by Chinese commentators is insufficient to establish sovereignty over the waters enclosed by the nine-dash line or the islands of the South China Sea,” Florian Dupuy and Pierre-Marie Dupuy underline in their article.

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