China Releases a “Position Paper” in the Ongoing Philippines-China Arbitration By Sean Mirski Thursday, January 15, 2015 at 3:30 PM 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. lawfareblog/2015/01/china-releases-a-position-paper-in-the-ongoing-philippines-china-arbitration/
Posted on: Sat, 17 Jan 2015 03:46:35 +0000
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