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Challenges Mount to Beijing's South China Sea Claims

FILE - Chinese ships chase Vietnamese vessels, not shown, after they came within 10 nautical miles of a Chinese oil rig in the South China Sea, July 15, 2014.
FILE - Chinese ships chase Vietnamese vessels, not shown, after they came within 10 nautical miles of a Chinese oil rig in the South China Sea, July 15, 2014.

Monday is the deadline for China to submit a counter-argument in the Philippines arbitration case that questions China's sweeping claims in the South China Sea. But China shuns arbitration and will not respond, while challenges to its position continue to mount.

Just days before the December 15 deadline, Vietnam Foreign Ministry spokesman Le Hai Bin said his government told the Permanent Court of Arbitration that Vietnam fully rejected "China’s claim over the Hoang Sa [Paracel] and Truong Sa [Spratly] archipelagoes and the adjacent waters.”

In a statement, the Philippines called Vietnam’s position “helpful in terms of promoting the rule of law and in finding peaceful and nonviolent solutions to the South China Sea claims.”

But China’s Foreign Ministry urged Vietnam "to earnestly respect China's territorial sovereignty and maritime rights and interests.” The ministry reiterated China’s position that the tribunal does not have jurisdiction over the case.

In a paper Beijing released a week ago, China argued the Philippines was essentially taking a territorial dispute to the tribunal and that the question of territorial sovereignty was not something addressed by the United Nations Convention on the Law of the Sea.

Philippine Foreign Affairs Spokesman Charles Jose said his government has “taken note” of the position paper.

“Actually the arguments raised by China are not new anymore. We know them and we have answered those arguments in the memorial we submitted,” said Jose.

China said its claims to the sea dated back 2,000 years and argued it was the first to “discover, name and explore” islands being contested by Brunei, Malaysia, the Philippines, Taiwan and Vietnam. Beijing also reiterated that it had the right to opt out of compulsory arbitration on matters related to maritime borders.

The paper also cites several instances over multiple years in which China and the Philippines agree to work out their competing claims through bilateral talks. And China says that the Philippines, by taking its grievances to the arbitration tribunal, “breached its obligation under international law.”

The Philippines submitted a 4,000-page brief of supporting materials for its case, which questioned the legal basis for China’s “nine-dash line” territorial claim; a tongue-shaped swath covering about 80 percent of the sea. The brief also asked the court for reassurance that what the Philippines was claiming was part of its continental shelf and well within its 370-kilometer exclusive economic zone.

Carl Thayer, an Asia security analyst at the Australian Defense Force Academy, said that while avoiding the court, China was making an appeal to the tribunal by releasing its position paper.

“To a certain extent it will be welcome by some of the judges because at least they have, they now know, a little bit more about what China’s claiming,” he said.

Thayer said the judges would also be looking at a study that the U.S. State Department issued just days ahead of China’s position paper. While the U.S. maintains its neutrality on territorial disputes, the study tries to pin-down what it calls the ambiguous basis for China’s nine-dash line. Laying out three possible interpretations of China's claim, the U.S. paper concludes it has no basis in international law.

Myron Nordquist is associate director at the Center for Oceans Law and Policy at the University of Virginia. He thought the tribunal would find it did not have jurisdiction over the case.

“When they [China] opted out, they opted out of- and the language, the text for the Convention says- ‘disputes involving historic title’… [So] this does involve, however unsustainable a claim there is… that does involve an argument for historic title,” he said.

But Nordquist also said the panel's having no jurisdiction would lead to compulsory conciliation, which means the two parties have to talk with a neutral third party. However, the two disputing parties are not obligated to follow what the third party recommends.

Nordquist said if the panel decided there was no historic title involved, it had jurisdiction over the case and then issued a decree. That decree would be enforceable by the Security Council, which China, as a member, could veto.