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The Philippines has submitted further written arguments in its arbitration case against China under the United Nations Convention on the Law of the Sea (UNCLOS) over disputed claims in the South China Sea. China has until 16 June to respond but will almost certainly not be doing so – at least, not directly to the tribunal. This will have direct consequences for China’s relationship to international law in the region.

Tensions in the South China Sea

These proceedings are taking place against a background of fluctuating tensions and continued anxiety in the South China Sea, where China, the Philippines, Vietnam and other states have long been advancing opposing territorial claims and the accompanying rights to exploit maritime resources. In recent years, all these states have been ramping up activities to assert their respective claims, in spite of a Declaration of Conduct signed in 2002 by China and the member states of the Association of Southeast Asian Nations (ASEAN) which calls for ‘self-restraint’. Negotiations for a Code of Conduct have been going on for many years without result.

China’s increased activity in the South China Sea has been worrying its southern neighbours, as well as the United States and Japan. China has long asserted a wide-ranging but ambiguous claim based on the so-called ‘nine-dash line’ (or ‘nine-dotted’ or ‘U-shaped line’) in the South China Sea, rooted in historical arguments.

The arbitration case

The dispute between the Philippines and China has its origins in competing claims over the Spratly Islands. The Philippines initiated the case on 22 January 2013, framing it not by reference to the islands themselves but in terms of ‘maritime jurisdiction’, in an attempt to circumvent restrictions that China has placed on its acceptance of the UNCLOS dispute-settlement procedures. China notified the Philippines of its rejection of arbitration one month later, insisting that the 2002 Declaration of Conduct called for bilateral negotiations. It has since refused to participate in the proceedings. But an arbitral tribunal was appointed anyway by the president of the International Tribunal of the Law of the Sea (ITLOS).

China essentially argues that the arbitral tribunal has no jurisdiction since the dispute is really about territorial sovereignty, which falls outside the scope of UNCLOS, and that it has been agreed that any dispute in this area should be settled by peaceful negotiations. By refusing to participate in the proceedings at all, however, China undermines the credibility of UNCLOS dispute settlement.

Along with its legal challenge, the Philippines has mounted a diplomatic and media offensive to draw attention to China’s non-participation, presenting itself as a small, law-abiding country standing up against a big regional bully.

China has now partially backtracked from its non-participation. On 7 December 2014, it published a 'position paper' on its foreign ministry website which, for all intents and purposes, is a pleading on jurisdiction, obviously aimed at the tribunal. This novel form of ‘non-participating participation’ makes its initial refusal to participate look even more misguided.

China’s motives

Why is China snubbing the arbitral tribunal? It may have been concerned that appearing before the tribunal might have entailed detailed submissions in support of its claims to sovereignty over the zones around the disputed islands. There are serious questions whether these historical claims are tenable under the modern law of the sea. In addition, China’s claims may be difficult to prove. The current ‘nine-dash line’ was originally asserted as an ‘eleven-dash line’ by the Republic of China before the People’s Republic came into existence in 1949. Some of the evidence in support of these claims may well be in possession of the Taiwanese authorities.

In addition, there is still some unease in Beijing regarding China’s ability to safeguard its interests through international dispute settlement, including lingering fears of anti-Chinese bias. China still sees itself as a relative newcomer to the international legal order. The foreign ministry’s lawyers were split between opponents and proponents of litigation, even if some Chinese international lawyers were eager to take the plunge.

It would be wrong to conclude that China has no regard for international law and only to view its behaviour as typical for a great power, comparable to Russia’s subsequent non-participation in the Arctic Sunrise case or the United States’ withdrawal from the  Nicaragua case at the International Court of Justice in the 1980s. Chatham House research and engagement with Chinese international lawyers indicate a serious and growing interest in international law in China. Its government attempts to reconcile a stated commitment to the international rule of law with protection of China’s ‘core interests’, one of which is territorial sovereignty. In the wake of the Fourth Plenum of the 18th Central Committee, China has announced its intention to strengthen its international legal capabilities.

The future

With the continuing ebb and flow of tensions concerning the South China Sea, it was a questionable time for the Philippines to initiate its case. But China’s ‘non-participatory participation’ looks like a missed opportunity for all parties, especially China. Vietnam has now also put its views before the arbitral tribunal. Even without official Chinese participation, the tribunal will, in the not-too-distant future, issue a decision that will bind China legally.

China has consistently expressed its commitment to the international rule of law, so even though it will probably ignore an adverse decision, this will come at a cost, not least to its stated aim of increasing its influence and discursive power in international law. It would also diminish the role that international law and institutions could play in the future in resolving tensions in the region.

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