Evaluating China's Jurisdictional Argument in the South China Sea Case

For those following the Philippines-China South China Sea arbitration, Lawfare alum Sean Mirski has an article over at The Diplomat (“Should the Philippines’ South China Sea Case Against China Proceed?”) that examines one of China’s jurisdictional arguments.

The Chinese government has argued that the tribunal should throw out the Philippine case—which is ostensibly based on maritime law—because “the very essence of [its] subject-matter” is territorial sovereignty issues. In the piece, Sean argues that this defense is logically flawed:

To make their jurisdictional argument watertight, China’s lawyers must subtly misstate the Philippine position. It is true, as the position paper suggests, that some maritime rights and claims will depend on apportioning sovereignty over the disputed islands. But that’s not universally true, because other types of behavior are simply forbidden by UNCLOS regardless of who owns the disputed features. In other words, Manila is asking the tribunal to simply assume that every disputed feature in the entire Sea belongs to China. Even under that assumption, the Philippines argues, Beijing is still breaching UNCLOS.

Indeed, a variation of this reasoning was displayed in a report by the U.S. State Department last December. As Sean concludes in the piece, “[i]f the State Department can do it, then so can the arbitral tribunal.”