By Sean Mirski

As readers might recall, two years ago the Philippines launched an arbitration process against China under the auspices of the U.N. Convention on the Law of the Sea (UNCLOS). Although its exact claims remain shrouded from public scrutiny, Manila apparently asserted that—to simplify a bit—Beijing had violated the international law of the sea by claiming sovereignty over vast swathes of the South China Sea.

From the start, China has steadfastly refused to participate in the arbitration process. So it was no surprise when Beijing “missed” the December 15 deadline to submit its counter-memorial. Instead, however, China released a “position paper” to the public on December 7. For all intents and purposes, this paper is the functional equivalent of China’s brief on the tribunal’s jurisdiction. Given the paper’s importance to the case, we’ve decided to provide Lawfare readers with a detailed summary of the arguments and an initial take, with an eye toward providing more meticulous analysis in the future.

In Part I, the position paper opens with its one overriding purpose: to show that the tribunal lacks jurisdiction over the case brought by the Philippines. Accordingly, Beijing explains, the paper should not be taken as either accepting the Philippines’s arguments or indicating China’s participation in the arbitration. Then, the paper lays out its four arguments: the tribunal lacks jurisdiction because (1) the case concerns a territorial dispute; (2) the Philippines has committed to negotiating any issues related to the South China Sea dispute; (3) the case implicates factors related to the delimitation of maritime boundaries; and (4) China has not given its consent to the compulsory arbitration procedure. I’ll summarize each claim in turn, and then provide my initial reaction.

No Jurisdiction over Territorial Disputes

In Part II, the paper starts by recapitulating the Philippines’s claims in the present case: Manila asserts (1) that China has claimed “historic rights” in the South China Sea “beyond the limits of its entitlements under the Convention”; (2) that China has claimed exclusive economic zones (EEZs) emanating from maritime features that are not entitled to EEZs; and (3) that China has “unlawfully interfered with the sovereign rights, jurisdiction and rights and freedom of navigation that the Philippines enjoys and exercises under the Convention.”

But, according to China, each of these claims masks the “very essence” of the Philippines’s claims: territorial sovereignty, an issue beyond the tribunal’s jurisdiction.

The first claim effectively boils down to the question of whether “China’s maritime claims in the South China Sea have exceeded the extent allowed under the Convention.” But the tribunal cannot determine the lawful extent of China’s maritime claims without first determining the legality of China’s territorial After all, the ICJ has repeatedly held that “sovereignty over land territory is the basis for the determination of maritime rights.”
The Philippines’s second claim runs into the same problem: the Philippines is “putting the cart before the horse” because “without determining the sovereignty over a maritime feature, it is impossible to decide whether maritime claims based on that feature are consistent with the Convention.” Additionally, the Philippines errs by selecting only a few features in the Spratly Islands instead of considering the island chain in its entirety. In effect, Beijing complains, Manila has “dissected the Nansha [Spratly] Islands.” In any case, “[w]hether low-tide elevations can be appropriated as territory is in itself a question of territorial sovereignty, not a matter concerning the interpretation or application of the Convention.” After all, the ICJ has stated that international treaty law—including UNCLOS—is “silent” on the question, and therefore, the tribunal cannot apply or interpret the Convention in order to resolve the Philippines’s claims.
The paper dismisses the Philippines’s third claim as well, noting that China and the Philippines have not delimited the maritime boundary between them. Until they do, Manila cannot claim that its rights in “defined areas” are being trampled upon.

In short, Beijing concludes that “[t]he subject-matter of the Philippines’ claims is in essence one of territorial sovereignty over several maritime features in the South China Sea, which is beyond the scope of the Convention and does not concern the interpretation or application of the Convention.”

A Binding Obligation to Negotiate

Next, China argues that the Philippines has breached its international treaty obligations by unilaterally initiating compulsory arbitration.

The paper rattles off a list of bilateral and multilateral documents—including, most prominently, the Declaration on the Conduct of Parties in the South China Sea, signed between the members of ASEAN and China—that pledges the parties to resolve their disputes through peaceful negotiation. Beijing argues that these treaties have created binding international obligations for the Philippines, and that—through a repeated focus on bilateral negotiations—they “obviously have produced the effect of excluding any means of third-party settlement.”

The paper then argues that UNCLOS prohibits the Philippines from bringing a suit in this context. According to Article 281(1),

[ i]f the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed to seek settlement of the dispute by a peaceful means of their own choice, the procedures provided for in this Part apply only where no settlement has been reached by recourse to such means and the agreement between the parties does not exclude any further procedure.

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