China Releases a "Position Paper" in the Ongoing Philippines-China Arbitration

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.

Because Manila has signed onto exactly such an agreement, it cannot bring its case before the tribunal according to China. The position paper then deals with two primary counter-arguments.

• First, Manila claimed that it had tried negotiations, but with no success, and that therefore it is justified in believing that any further efforts would be futile. But, China responds, “the truth is that the two countries have never engaged in negotiations with regard to the subject-matter of the arbitration” – they had merely exchanged their views, which does count as “negotiation” as a matter of international law. Also, Manila has repeatedly spurned Beijing’s offers to negotiate. And in any event, China and the Philippines had not even exchanged views on the subject matter of the current dispute, since Manila had historically invoked an interpretation of UNCLOS similar to the one allegedly held by China, so there was no dispute over which to negotiate in the first place.
• Second, the Philippines had argued that China could not invoke the Declaration on Conduct to block the tribunal’s jurisdiction because Beijing had violated other components of the Declaration. The position paper denies these alleged violations—which merely involved China defending its territorial sovereignty—and castigates the Philippines for selectively invoking certain provisions of the Declaration.

No Arbitration of Maritime Delimitation Disputes In Part IV, China argues that UNCLOS permits states to exclude any compulsory arbitration process involving, among other issues, “disputes concerning maritime delimitation.” In 2006, Beijing chose to opt out of these disputes, but the Philippines now asks the tribunal to weigh in on issues that “are part and parcel of maritime delimitation.” After all, the legal issues in this case, “including maritime claims, the legal nature of maritime features, the extent of relevant maritime rights, and law enforcement activities at sea, are all fundamental issues dealt with in past cases of maritime delimitation decided by international judicial or arbitral bodies and in State practice concerning maritime delimitation.” As the paper stresses, “[m]aritime delimitation is an integral, systematic process” that involves considerations of “all relevant factors that must be taken into account, in order to attain an equitable solution.” These factors include many of the issues raised by the Philippines, which therefore “can only be considered under the overarching framework of maritime delimitation between China and the Philippines.” This part closes with a dire warning: if the tribunal accepts jurisdiction, then it would render UNCLOS’s opt-out provisions meaningless. The Principles of International Law In Part V, the position paper concludes with an ode to the principles underlying international law. Unsurprisingly, China zeroes in on the principle of state sovereignty. It advises the tribunal to recognize “the right of the States Parties [under UNCLOS] to choose the means of settlement of their own accord, [and] the principle of consent which must be followed in international adjudication and arbitration.” The paper highlights how these principles were “critical” to striking a “balance” in UNCLOS that gave “many” states the confidence to ratify the Convention in the first place. Beijing advises that it “has never accepted any compulsory procedures of the Convention with regard to the Philippines’ claims for arbitration,” and that the tribunal is obligated to respect this decision. Finally, China recaps its four arguments before surveying its successful record of resolving both land and maritime boundary disputes. Beijing warns that Manila’s case “will not in any way facilitate a proper settlement of the dispute between the two countries” and instead will be positively harmful. China rejects charges that it has become aggressive in the South China Sea, and points the finger toward the Philippines as the “increasingly provocative” party. A Remarkable Document In many respects, the position paper is a remarkable document. It allows Beijing to submit its legal views to the tribunal without formally participating in the case. Indeed, China seems to have deliberately adopted this strategy: the tribunal noted in its most recent press release that “its members had been furnished with copies” of the position paper by China, which would have been entirely unnecessary unless Beijing wanted the tribunal to take its arguments into account. The calculus is simple—if Manila wins, then China can continue to dismiss the process as unlawful; if Manila loses on the jurisdictional point, then China will be able to take partial credit. But perhaps more importantly, Beijing has once again managed to slip away without clarifying the extent of its maritime claims. As Julian Ku has pointed out over at Opinio Juris, these types of “tribunals have tended to combine their considerations of jurisdiction with those of the merits. They have not generally bifurcated their proceedings, nor do they seem to have any obligation to do so.” This mixing of jurisdictional and merits arguments presented a significant problem for China because it desperately wants to maintain “strategic ambiguity” about the scope of its maritime claims in the South China Sea. If it participated in the case, though, it would run a serious risk of having to address the merits of the Philippines’s claims, and it could do so only by finally revealing its legal interpretation of the nine-dash line. On the other hand, if Beijing eschewed the case entirely, then it would lose the chance to make a colorable—if not winning, according to some commentators—jurisdictional argument. Enter the “position paper”—it walks and talks like a brief but allows China the luxury of ignoring the merits. As a result, China leaves the latest round of litigation with a decent hand: the tribunal will take note of the paper—giving China a chance to make the legal arguments that it wants to make—and Beijing escapes having to clarify the nine-dash line for another day. Finally, it is worth stressing how the stakes continue to mount in this case. Originally, the arbitration was between the Philippines and China, and Beijing decided to opt out. Now, though, China has invested enormous time and resources into publishing a quite professional quasi-brief. (At Opinio Juris, Ku notes accurately that the paper “offers careful and credible legal analysis and avoids (for the most part) the annoying official propaganda tone that is the bane of every China-analyst.”) The arbitration has also attracted the interest of numerous third parties. In a truly extraordinary coincidence, Vietnam submitted a statement to the tribunal on the exact same day that the United States released its own analysis of the (il)legality of China’s maritime claims in the South China. (For more details, see Lawfare’s summary here.) To be sure, the American report has no formal legal significance, and the tribunal is still mulling over how to react to Vietnam’s statement. But the tribunal will undoubtedly take both documents into account alongside China’s position paper (even if informally). Commentators are right to note that China will ignore any adverse ruling by the tribunal. But that may be largely irrelevant if the outcome itself attains symbolic status by virtue of the continued interest the case has attracted. In other words, the more that interested parties pour energy, attention, and resources into the arbitration, the more that the result matters as a signal of the way the winds over the South China Sea are blowing.