{"id":2995,"date":"2018-07-05T11:21:33","date_gmt":"2018-07-05T09:21:33","guid":{"rendered":"http:\/\/east-sea.de\/?p=2995"},"modified":"2018-07-05T11:25:31","modified_gmt":"2018-07-05T09:25:31","slug":"english-a-new-twist-in-the-south-china-sea-arbitration-the-chinese-society-of-international-laws-critical-study","status":"publish","type":"post","link":"http:\/\/east-sea.de\/en\/2018\/07\/05\/english-a-new-twist-in-the-south-china-sea-arbitration-the-chinese-society-of-international-laws-critical-study\/","title":{"rendered":"A new twist in the South China Sea Arbitration: The Chinese Society of International Law\u2019s Critical Study"},"content":{"rendered":"On Monday 14 May 2018 the\u00a0<em>Chinese Journal of International Law<\/em>, an Oxford University Press journal, published an extraordinary 500 page \u201c<a href=\"https:\/\/academic.oup.com\/chinesejil\/article\/17\/2\/207\/4995682\" target=\"_blank\" rel=\"noopener\">Critical Study<\/a>\u201d of the Awards on jurisdiction and the merits in the\u00a0<em>South China Sea Arbitration<\/em>\u00a0between the Philippines and China. Readers will recall the case was brought under the UN Convention on the Law of the Sea (UNCLOS) by the Philippines against China and that there was an awards on jurisdiction in 2015 and a final award on the merits in 2016. The Critical Study was produced by the joint efforts of some 70 scholars and is listed as having been authored by the Chinese Society of International Law (CSIL). It examines almost every issue raised in the case \u2013 and several that weren\u2019t \u2013 and concludes the Tribunal was catastrophically wrong on every single point, right down to how many times the Philippines was allowed to amend its pleadings.<\/p>\n<p>The extent to which the Critical Study manages to strike a temperate and balanced tone towards the Awards made by the arbitral tribunal is summed up in the introduction:<\/p>\n<blockquote><p>\u201cThese awards are not conducive to solving the dispute between China and the Philippines in the South China Sea; instead, they have complicated the related issues. They have impaired the integrity and authority of [UNCLOS], threaten to undermine the international maritime legal order, run counter to the basic requirements of the international rule of law, and also imperilled the interests of the whole international community\u201d [para 5].<\/p><\/blockquote>\n<p>Like pirates, the Tribunal members it seems are close to\u00a0<em>hostes humani generis<\/em>\u00a0and their award a threat to international legal order. The other blow to any semblance of academic neutrality in the book-length Critical Study is the one issue it studiously chooses not to address: China\u2019s refusal to participate in proceedings. The Critical Study, while challenging almost every other paragraph of the award is entirely silent as to the Tribunal\u2019s plainly correct finding that China \u2013 even if it disputed jurisdiction \u2013 was bound by its voluntary membership of UNCLOS to participate in proceedings. Further, UNCLOS makes clear China was bound by the result of such proceedings, even in the event of non-appearance. Indeed, this is why in UNCLOS cases where the\u00a0<a href=\"https:\/\/www.pcacases.com\/web\/view\/11\" target=\"_blank\" rel=\"noopener\">UK<\/a>\u00a0and\u00a0<a href=\"https:\/\/www.itlos.org\/cases\/list-of-cases\/case-no-8\/\" target=\"_blank\" rel=\"noopener\">France<\/a>\u00a0disputed jurisdiction, for example, they have nonetheless shown up to make the argument.<\/p>\n<p>In any event, the Critical Study raises a number of very interesting questions both in terms of the legal arguments it makes and in the simple fact of its existence. In the remainder of this (unfortunately long) post I would like to offer some brief and necessarily initial observations on following issues:<\/p>\n<ul>\n<li>First, what is the significance of the critical study as an intervention in the debates about the South China Sea award, and what does it tell us about Chinese approaches to international law?<\/li>\n<li>Second, is there any merit to the substantive legal arguments advanced by the Critical Study? (And what do these arguments tell us about Chinese approaches to international law?) I will put aside here the issues of both jurisdiction and the legal definition of islands capable of generating significant maritime zones (on which reasonable minds have differed) and focus on arguments regarding Chinese historic rights in the South China Sea and whether the Spratley Islands can be considered an archipelago.<\/li>\n<\/ul>\n<p><strong>\u00a0<\/strong><strong>What is the significance of the Critical Study?<\/strong><\/p>\n<p>First, it is obviously a positive thing that a group of Chinese scholars has chosen to engage in a robust debate about how international law applies to a sensitive topic. Publishing this study simultaneously in English and Chinese, and in a major journal, is plainly a laudable attempt to put their arguments to a wider scholarly audience.<\/p>\n<p>However, many of the Critical Study\u2019s arguments \u2013 especially on jurisdiction \u2013 are not new. They were well ventilated in various position papers China put into the public domain (eg\u00a0<a href=\"http:\/\/www.fmprc.gov.cn\/nanhai\/eng\/snhwtlcwj_1\/\" target=\"_blank\" rel=\"noopener\">here<\/a>and\u00a0<a href=\"https:\/\/academic.oup.com\/chinesejil\/article-abstract\/15\/2\/431\/2548388\" target=\"_blank\" rel=\"noopener\">here<\/a>) and scholarship which pre-empted the hearing of case, most notably the volume of essays edited by\u00a0<a href=\"https:\/\/www.bloomsbury.com\/in\/the-south-china-sea-arbitration-9781782256175\/\" target=\"_blank\" rel=\"noopener\">Bing Bing Jia and Stefan Talmon<\/a>.<\/p>\n<p>The Critical Study is also bound to reinforce the view that, in contrast to Western states, there is a distinct lack of diversity in Chinese scholarly opinion about the legal merits of the case and perhaps an unwillingness to depart from a party line. As\u00a0<a href=\"https:\/\/global.oup.com\/academic\/product\/is-international-law-international-9780190696412?q=Is%20International%20Law%20International%3F&amp;lang=en&amp;cc=us\" target=\"_blank\" rel=\"noopener\">Anthea Roberts<\/a>\u00a0has noted there is nothing particularly subtle or indirect about the Chinese scholarly community\u2019s support for the government position.\u00a0<a href=\"http:\/\/foreignpolicy.com\/2016\/07\/14\/south-china-sea-lawyers-unclos-beijing-legal-tribunal\/\" target=\"_blank\" rel=\"noopener\">Julian Ku<\/a>\u00a0has speculated that this may reflect soft censorship or a fear of voicing unpopular opinions in a competitive job market, or the simple fact that academics may be as prone to the \u201csiren call\u201d of nationalism as anyone else.\u00a0\u00a0<a href=\"https:\/\/lawfareblog.com\/chinas-strategic-use-research-funding-international-law\" target=\"_blank\" rel=\"noopener\">Roberts<\/a>\u00a0has also noted the Chinese government\u2019s strategic use of research funding to develop capacity in the law of the sea. (One imagines that academics with an eye to available funding and career advancement are unlikely to want to be seen as anything other than government friendly on the subject.) A\u00a0<em>very\u00a0<\/em>interesting question is whether this deployment of research funding means there will be a steady stream of articles submitted to major English language journals taking the same line as the Critical Study.<\/p>\n<p>Obviously, there is nothing\u00a0<em>per se<\/em>\u00a0sinister in academics putting forward arguments that coincide with government policy or advising governments. The phenomenon of academic lawyers serving in government posts from time to time is particularly well known in the US, but is not unique to that jurisdiction. Nonetheless, it is certainly intriguing that a major scholarly society would chose to very obviously re-litigate a case and produce its output in English for international consumption. I am unaware of any parallel effort by a national scholarly society of a permanent member of the Security Council in relation to a major international legal decision. (But would be delighted to be corrected.)<\/p>\n<p><strong>Chinese historic rights in the South China Sea<\/strong><\/p>\n<p>The first major question I would like to examine in the Critical Study is the\u00a0<em>nature<\/em>\u00a0of historic rights claimed by China in the waters of the South China and the\u00a0<em>evidence<\/em>\u00a0for these rights. On the evidence question the Critical Study is, at first, somewhat confusing.<\/p>\n<p>The Critical Study takes the tribunal to task for not properly examining pre-twenty first century evidence of China\u2019s historic rights over the waters of the South China Sea, but begins by leading evidence of historic discovery and exercises of jurisdiction over various reefs, shoals and islets. These are questions going to historical title (ie ownership) over maritime features: not historic rights in the broader sense. The critical study does little on this point to explain in intelligible terms the content of China\u2019s supposed special rights in the South China Sea, though the evidence led does go to China\u2019s claim to possesses various maritime features potentially capable of generating zones. There is some suggestion in the Critical Study that whatever special historic rights China is meant to have around these features run in parallel with the modern maritime zones established by UNCLOS. This, however, doesn\u2019t carry the argument far. It would take a lot of evidence to prove exclusive historic rights over an area broader than an Exclusive Economic Zone.<\/p>\n<p>Where the rubber hits the road is the Critical Study\u2019s attempt to make the case that the long history of \u201ctrade, navigation and fishing in relevant areas of the South China Sea\u201d prove something more than the exercise of high seas freedoms because this history was accompanied by Chinese efforts to exercise jurisdiction over relevant waters including through \u201cestablishing administrative setups, strengthening defense at sea, conducting naval patrols, mapping, combating piracy and rescuing foreign ships in distress\u201d (para 530). All of this goes to the proposition that the Chinese People and Government have historically \u201c<em>made no distinction between islands and sea areas<\/em>\u201d (para 523 emphasis added). We might dub this a theory of historic title to an integrated ocean space. Indeed, such a theory may well be a\u00a0<em>bona fide<\/em>aspect of \u201cChinese international law\u201d (in the Robertsean sense of international law as viewed from a Chinese perspective) in which land and water are a single unit.<\/p>\n<p>The basic problem in putting forward a special Chinese theory or practice of historic rights over an integrated ocean space is that such a theory\u00a0<em>cannot unilaterally bind other States<\/em>. This is simply not how the law of the sea \u2013 or, indeed, international law generally \u2013 works. For historic rights or title to be found there must be evidence not only of their continuous assertion of rights by the claimant State but longstanding acquiescence on the part of other States (eg Tanaka,\u00a0<em>The International Law of the Sea<\/em>, 2<sup>nd<\/sup>\u00a0ed, pp. 58-59). The critical study leads little relevant evidence of acquiescence, although it does assert by analogy with the\u00a0<em>UK\/Norway Fisheries Case\u00a0<\/em>that China\u2019s longstanding practice was well known to the Philippines. However, in contrast to that case the Critical Study fails to put forward\u00a0<em>any<\/em>\u00a0evidence that Chinese historic rights were considered to be to the exclusion of other States and\u00a0<em>enforceable against the vessels of other States<\/em>. There is only evidence of, for example, Qing dynasty regulation of fishing carried out\u00a0<em>by its own subjects<\/em>.<\/p>\n<p>The Critical Study thus clarifies the nature of China\u2019s historic rights claim to some degree. It fails to explain, however, why such claimed rights are binding as against other States.<\/p>\n<p><img loading=\"lazy\" class=\"alignnone  wp-image-2851\" src=\"http:\/\/east-sea.de\/datei\/uploads\/2018\/05\/h\u1ea3i-qu\u00e2n-TQ-300x186.jpg\" alt=\"\" width=\"389\" height=\"241\" \/><\/p>\n<p><strong>Claiming archipelagic status for the Spratley Islands<\/strong><\/p>\n<p>The critical study does address China\u2019s\u00a0<a href=\"https:\/\/www.lawfareblog.com\/south-china-sea-and-chinas-four-sha-claim-new-legal-theory-same-bad-argument\" target=\"_blank\" rel=\"noopener\">recently deployed argument in the alternative<\/a>: that the Nansha Qundao (Spratley Islands) are part of an \u201coutlying archipelago\u201d capable of generating substantial maritime zones. Indeed, the argument is made that they form an indivisible part of an even larger archipelago including the Zhongsha Qundao (consisting of features including the Macclesfield Bank and Scarborough Shoal).<\/p>\n<p>It strains academic decorum to describe the length of the bow being drawn here.<\/p>\n<p>The significance of such an attempted classification, put simply, is this. UNCLOS allows archipelagic States (think Indonesia and the Philippines) which meet certain geographical criteria to draw long straight baselines to enclose their constituent islands. This can substantially expand their EEZ claims and create an enclosed area of \u201carchipelagic waters\u201d. However, UNCLOS does\u00a0<em>not<\/em>\u00a0allow other continental or island States to declare themselves archipelagos\u00a0<em>in part<\/em>\u00a0and use straight baselines to lay claims to swathes of the sea surrounding their distant island possessions.<\/p>\n<p>The CSIL\u2019s argument is essentially: there is a parallel customary law concept of \u201coutlying archipelagos\u201d which would allow precisely what UNCLOS does not permit (paras 558 and 574). The substantiating examples given include the Faroe Islands, Galapagos Islands, Svalbard, and the Canary Islands. A useful table of State practice on straight baselines is included (p. 492). Setting to one side whether such a rule is established, and can survive UNCLOS, the question is whether Nansha Qundao and Zhongsha Qundao could remotely qualify under it. The Spratleys consist of over 140 maritime features, only 40 or so of which are above water at high tide and the\u00a0<a href=\"https:\/\/cil.nus.edu.sg\/wp-content\/uploads\/2010\/08\/Beckman-THE-UN-CONVENTION-ON-THE-LAW-OF-THE-SEA-AND-THE-MARITIME-DISPUTES-IN-THE-SCS.pdf\" target=\"_blank\" rel=\"noopener\">largest 13 of which have a total area of less than 1.7 km\u00b2<\/a>. Itu Aba the largest feature in the group, presently controlled by Taiwan, has an area of 46 hectares or about 0.46 km\u00b2. Compare this with the total area of the Faroe Islands (1,400 km\u00b2), Galapagos Islands (8,000 km\u00b2), Svalbard (61,000 km\u00b2), and the Canary Islands (7,500 km\u00b2). Setting aside the law, the claim does not credible by analogy with the factual precedents available.<\/p>\n<p><strong>Conclusion<\/strong><\/p>\n<p>This blog post represents my first thoughts on a major piece of work which I admit requires further study. My initial impressions, however, aren\u2019t favourable. The Critical Study is tendentiously one-sided and makes a number of arguments that are either flawed at a very basic legal level or which strain credulity in their attempt to extract rules of customary international law and apply them to facts which are simply not comparable.<\/p>\n<p>China plainly wants to write a special set of rules on the law of the sea which apply only in its back yard and many in the Chinese academy appear determined to support this effort. This will prove very hard to do. Major maritime powers have a lot to gain from a rules-based international order: they are usually in a disproportionately powerful position to influence the development of rules; and if other States can see the self-interest in following those rules, then it is much easier to shape and direct the behaviour of other States through rules than force. The obvious downside is that major powers have to accept the odd setback here and there when small States are able to leverage the rules for advantage on particular issues\u00a0<a href=\"https:\/\/papers.ssrn.com\/sol3\/papers.cfm?abstract_id=1753015\" target=\"_blank\" rel=\"noopener\">including through dispute settlement<\/a>. But, by and large, this is why major maritime powers to date have supported a rules-based order for the oceans.<\/p>\n<p>The problem with the Chinese approach is that it is hard to get other States to accept as part of international law special rules which are manifestly to their disadvantage. The most successful efforts to change the law of the sea in the twentieth century through the proposal of new rules were the Truman Proclamation on the Continental Shelf and the championing (largely by Latin American and African states) of the Exclusive Economic Zone. These ideas attracted buy-in and rapidly became established as part of international law\u00a0<em>precisely because they benefited States other than the proponents<\/em>.<\/p>\n<p>It isn\u2019t enough to mount a semi-plausible argument that gives \u201clegal cover\u201d to policy: the argument has to persuade those States most obviously affected of its rightness. It is hard, at present, to see how China could frame its claims in the South China Sea in manner likely to clear that bar. To the extent international law argument is potentially being used here as a form of \u201ctrack two\u201d or soft-power diplomacy it seems unlikely to succeed.\/.<\/p>\n<p>Douglas Guilfoyle<\/p>\n<p>&#8212;<\/p>\n<p><em>Professor Douglas Guilfoyle is a Professor of Law at Monash University. His principal areas of research are international law of the sea and international and transnational criminal law. He is the author of Shipping Interdiction and the Law of the Sea (CUP 2009) and International Criminal Law (OUP 2016); and the editor of Modern Piracy: Legal Challenges and Responses (Elgar 2013).<\/em>\n<p>Aufrufe: 467<\/p>","protected":false},"excerpt":{"rendered":"<p>On Monday 14 May 2018 the\u00a0Chinese Journal of International Law, an Oxford University Press journal, published an extraordinary 500 page \u201cCritical Study\u201d of the Awards on jurisdiction and the merits in the\u00a0South China Sea Arbitration\u00a0between the Philippines and China. Readers will recall the case was brought under the UN Convention on the Law of the &#8230;<\/p>\n","protected":false},"author":8,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[97,1,41],"tags":[],"aioseo_notices":[],"_links":{"self":[{"href":"http:\/\/east-sea.de\/en\/wp-json\/wp\/v2\/posts\/2995"}],"collection":[{"href":"http:\/\/east-sea.de\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/east-sea.de\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/east-sea.de\/en\/wp-json\/wp\/v2\/users\/8"}],"replies":[{"embeddable":true,"href":"http:\/\/east-sea.de\/en\/wp-json\/wp\/v2\/comments?post=2995"}],"version-history":[{"count":4,"href":"http:\/\/east-sea.de\/en\/wp-json\/wp\/v2\/posts\/2995\/revisions"}],"predecessor-version":[{"id":2999,"href":"http:\/\/east-sea.de\/en\/wp-json\/wp\/v2\/posts\/2995\/revisions\/2999"}],"wp:attachment":[{"href":"http:\/\/east-sea.de\/en\/wp-json\/wp\/v2\/media?parent=2995"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/east-sea.de\/en\/wp-json\/wp\/v2\/categories?post=2995"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/east-sea.de\/en\/wp-json\/wp\/v2\/tags?post=2995"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}