Thursday, July 17, 2014

South China Sea: China Should Uphold International Law

Background Briefing:
South China Sea: China Should
Uphold International Law
Carlyle A. Thayer
May 11, 2014
The following op ed was commissioned by the People’s Daily in May 2014. To the
best of my knowledge it was never published.
China Should Uphold International Law to Win Support from Regional States
How to Convince Regional States That China Has “Indisputable Sovereignty” Over
the South China Sea?
China’s top policy makers must have come to realize that China’s efforts to convince
regional states that it has a firm claim to “historic rights” and “indisputable
sovereignty” over the South China Sea has been less than successful. Since China has
already settled many of its land border disputes with its neighbours, including
Vietnam, the question arises why has China been so unsuccessful in resolving
maritime territorial disputes with Southeast Asian states? Why have these disputes
resulted in confrontation leading to rising tensions?
This article offers ten modest proposals that if implemented would result in a sea
change in regional attitudes towards China. China would benefit by upholding
international law.
First, China should accept that all regional states genuinely welcome China peaceful
rise. No state wants to confront China or even to contain it. Many states, like China,
experienced colonialist intervention in their affairs. Therefore, China should revisit
the Five Principles of Peaceful Co-existence and sincerely apply these principles in its
diplomatic relations with regional states. It is important that China and small states
treat each other with mutual respect for sovereignty and territorial integrity, mutual
non-aggression, non- interference in each other’s internal affairs, equality and
mutual benefit, and peaceful coexistence.
Second, China should reaffirm its adherence to international law and the United
Nations Convention on the Law of the Sea (UNCLOS). China should ensure that all its
domestic legislation is in accord with international law. This will provide a strong
legal and normative basis for Chinese diplomacy.
Third, China should clarify its claims to “historic rights” and “indisputable
sovereignty” with great precision. Up until now Chinese spokesmen have stated
repeatedly that China has sufficient evidence to support these claims. Yet China has
not been forthcoming in providing details. The most egregious example is China’s u-
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shaped nine-dash line to mark claims in the South China Sea. International legal
specialists are in agreement that this map constitutes a “piece of information” only
and is not an authoritative documentation of sovereignty claims.
Fourth, China should draw up a White Paper outlining the basis of its claims to
“historic rights” and “indisputable sovereignty.” Chinese officials sometimes mention
“other international law.” The use of maps dating back to the Yuan Dynasty do not
provide the evidence required by modern international law. For example, China’s
claims to sovereignty over land features in the South China Sea must be documented
by evidence of when these land features were occupied and details of how they
were administered.
Fifth, sovereignty disputes over territory or land features in the South China Sea can
only be solved by direct negotiation between the states concerned. Many Southeast
Asian diplomats consulted by this writer state that China has set a pre-condition on
bilateral negotiations, namely that they must first recognize Chinese sovereignty
claims first. Then and only then can they discuss mutual cooperation and joint
development. China should drop this pre-condition.
Sixth, China should put aside its sovereignty claims and deal with the status quo by
respecting international law. This means accepting that there are legitimate
maritime zones in dispute between China and regional states. China and other states
should refrain from unilateral “sovereignty enforcement” activities.
Seventh, the important injunction by international law is that the states in dispute
should enter into provisional arrangements until their dispute is settled, not alter the
status quo, and refrain from the threat or use of force. China and other states –
without prejudice to their sovereignty claims – should work out the temporary
demarcation of maritime zones. If the parties agree they can enter into agreements
for fisheries management, joint development of oil and gas resources and search and
Eighth, China should reconsider its refusal to accept international arbitration. After
all a Chinese judge sits on the panel of judges qualified to arbitrate cases under
international law. If a Chinese judge is acceptable to foreign states, why can’t China
accept foreign judges in its case? There are many regional states, such as Indonesia,
Malaysia and Singapore, that have resolved territorial disputes by international
arbitration. China may find that international arbitration is a useful way to settle
some of its territorial disputes.
Ninth, while China is acting within its rights in deciding not to participate in the
Arbitral Tribunal instigated by the Philippines, China should stop criticizing this
process. China’s actions are widely viewed as undermining international law. The
Philippines is not directly challenging Chinese sovereignty or the exemptions China
announced when it acceded to UNCLOS. China uses UNCLOS as the basis for its
baselines, territorial waters, contiguous zone, exclusive economic zone and
continental shelf. All the Philippines is doing, in light of China’s unilateral assertion of
sovereignty, is to ask the Arbitral Tribunal to determine if it has the same
entitlements under UNCLOS.
Tenth, if the Arbitral Tribunal determines the Philippines has a case in law and that
the Tribunal has jurisdiction over the issues raised, China should reconsider its
decision to boycott the Tribunal’s proceedings. This is important because under
UNCLOS the decisions of the Arbitral Tribunal must be enforced immediately and are
not subject to appeal. China’s rejection of the Arbitral Tribunal out of hand
undermines international law. If China has an indisputable claim to sovereignty, as it
repeatedly states, it should argue its case.
If China were to uphold and follow international law, this would assist in
transforming territorial and maritime disputes from physical confrontation between
China and regional states into a legal confrontation. If China and regional states
accept the decisions of an independent arbitrator this will contribute greatly to the
goal of making Southeast Asia into a zone of peace, cooperation and development.
This is a win-win situation not only for China but the small states themselves.
Suggested citation: Carlyle A. Thayer, “South China Sea: China Should Uphold
International Law,” Thayer Consultancy Background Brief, May 11, 2014. All
background briefs are posted on (search for Thayer). To remove yourself
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Thayer Consultancy provides political analysis of current regional security issues and
other research support to selected clients. Thayer Consultancy was officially
registered as a small business in Australia in 2002.

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