Is China’s Position in the South China Sea (Legally) Weakened?

Following recent developments, South China Sea (SCS) has once again become a central discussion not only in Southeast Asia, but also in other parts of the world. It started from the communication made by Malaysia to the United Nations (UN) regarding its submission on the continental shelf beyond 200 nautical miles (2019), and since, several key communications were conveyed by numerous concerned parties.

Indeed, most of the communications are reiterations of past positions, but it became timely not only because it was made after the submission by Malaysia, but particularly it was communicated after the 2016 Arbitral Tribunal regarding the SCS dispute between the Philippines and China (Tribunal). Interestingly, the arguments are not made through press briefings or statements (as was made previously), now it is formally submitted and recorded by the UN.

Arbitral Tribunal

The Tribunal was constructed and established based on the 1982 United Nations Convention on the Law of the Sea (UNCLOS).

The award of the Tribunal made a clear ruling regarding China’s ‘9-dash line’ claim, that a state cannot claim maritime zones that exceeds the provisions of UNCLOS. Thus 9-dash line is illegal. As for maritime entitlement, all the features in question cannot claim 200nm Economic Exclusive Zone (EEZ) but only a maximum of 12nm.

Persistent Objections

In response to the Malaysian communication, China once again reiterated its position particularly about their so called ‘historic rights’ in the SCS. China also considered the Tribunal’s award as unjust and unlawful. Further, it argued that China neither accepts nor participates in the Tribunal and does not accept nor recognize its award.

Indonesia on the other hand, once again exercised their persistent objection. Not only the arguments were delivered based on and in line with previous communications to the UN (2010) but it also touched upon the Tribunal’s award. It reiterated Indonesia’s long standing position that Indonesia is not a party to the territorial dispute in SCS. It also emphasized that Indonesia’s position regarding maritime entitlements of the maritime features in SCS has been confirmed by the award. Furthermore, it argued that the so-called 9-dash line lacks international legal basis and was confirmed by the Tribunal’s award. In addition to Indonesia’s position, several States have also registered their legal objections against China’s maritime claims to the UN.

In its rebuttal, China expressed its strong objection of the position of Indonesia except that it accepts the fact that there is no territorial dispute in the SCS between Indonesia and China. Nonetheless, China claimed that the two countries have overlapping claims on ‘maritime rights and interests’ in some parts of the SCS.

Proposal For Bilateral Negotiation

There was an interesting argument which was brought up by China and particularly conveyed to Indonesia is about an ‘offer’ to negotiate about the said ‘overlapping maritime rights and interest’. Something to consider about in legal terms, is China invoking Article 283 of UNCLOS regarding ‘obligation to exchange of views’?

Article 283 (1) UNCLOS clearly stipulated that “when a dispute arises between States Parties concerning the interpretation or application of this Convention, the parties to the dispute shall proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means”. If this is the intention of China, then more legal question need to be examined particularly if the negotiation process fails, does it directly invoke Article 297 regarding ‘Choice of Procedures’ as a way forward, such as the Arbitral Tribunal?

Nonetheless, Indonesia has clearly rejected every possibility to hold any bilateral negotiation with China. There is no legal reasoning that could explain why Indonesia has to conduct such negotiation. Indonesia does not have any overlapping maritime claim with China, thus holding a maritime delimitation negotiation is baseless.

This proposal of holding a bilateral negotiation is not new and will always be rejected by Indonesia. For future consideration, China should explain clearly what is the legal basis of such negotiation, is it based on Article 76 and Article 83 regarding continental shelf, or Article 56 regarding exploitation of EEZ,or any other legal basis?

Weakening of Chinese (Legal) Position in SCS?

Objections from different States against China’s maritime claim, in particular referring to the Tribunal’s award might have weakened China’s claim in SCS, including in legal terms.

While these States object China’s claim based on the award which was established lawfully in accordance with Article 297 of UNCLOS, China on the other hand is still firm with their unilateral historical claim which was denied by the interpretation of the award. Either China has to prove that its claims are based on international law, or it has to move on and find new legal arguments that can suit current international legal construction of the SCS dispute, including the Tribunal’s award.

Politically, implementation of ASEAN’s Declaration on the Conduct of Parties in the South China Sea (DOC) and early conclusion of the Code of Conduct (COC) still remain the best platform for dialogue and consultation between ASEAN and China on SCS dispute, but of course this is for regional stability rather than resolution to maritime claims. Nonetheless, any way forward that is chosen need to be derived from a legitimate cause.

DISCLAIMER: Views expressed above are the author’s own.

Ahmad Almaududy Amri
Ahmad Almaududy Amri
The writer holds Ph.D. degree from the Australian National Center for Ocean Resources and Security (ANCORS), University of Wollongong, Australia.