A new twist in the South China Sea Arbitration: The Chinese Society of International Law's Critical Study

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A new twist in the South China Sea Arbitration: The Chinese Society of International Law's Critical Study

Douglas Guilfoyle (Professor of Monash University of Austraylia)

On Monday 14 May 2018, the Chinese Journal of International Law, an Oxford University Press journal, published an
Douglas Guilfoyle
extraordinary 500 page "Critical Study" of the Awards on jurisdiction and the merits in the South China Sea Arbitration between 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 (discussed in many places including here, here, here, here and here). 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 – and several that weren't – 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.

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:

"These 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" [para 5].

Like pirates, the Tribunal members it seems are close to hostes humani generis and 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's refusal to participate in proceedings. The Critical Study, while challenging almost every other paragraph of the award is entirely silent as to the Tribunal's plainly correct finding that China – even if it disputed jurisdiction – 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 UK and France disputed jurisdiction, for example, they have nonetheless shown up to make the argument.

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:

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?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.



What is the significance of the Critical Study?

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.

However, many of the Critical Study's arguments – especially on jurisdiction – are not new. They were well ventilated in various position papers China put into the public domain (eg hereand here) and scholarship which pre-empted the hearing of case, most notably the volume of essays edited by Bing Bing Jia and Stefan Talmon.

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 Anthea Roberts has noted there is nothing particularly subtle or indirect about the Chinese scholarly community's support for the government position. Julian Ku has 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 "siren call" of nationalism as anyone else. Roberts has also noted the Chinese government's 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 very 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.

Obviously, there is nothing per se sinister 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.)

Chinese historic rights in the South China Sea

The first major question I would like to examine in the Critical Study is the nature of historic rights claimed by China in the waters of the South China and the evidence for these rights. On the evidence question the Critical Study is, at first, somewhat confusing.

The Critical Study takes the tribunal to task for not properly examining pre-twenty first century evidence of China's 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's supposed special rights in the South China Sea, though the evidence led does go to China's 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't 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.

Where the rubber hits the road is the Critical Study's attempt to make the case that the long history of "trade, navigation and fishing in relevant areas of the South China Sea" 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 "establishing administrative setups, strengthening defense at sea, conducting naval patrols, mapping, combating piracy and rescuing foreign ships in distress" (para 530). All of this goes to the proposition that the Chinese People and Government have historically "made no distinction between islands and sea areas" (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 bona fideaspect of "Chinese international law" (in the Robertsean sense of international law as viewed from a Chinese perspective) in which land and water are a single unit.

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 cannot unilaterally bind other States. This is simply not how the law of the sea – or, indeed, international law generally – 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, The International Law of the Sea, 2nd ed, pp. 58-59). The critical study leads little relevant evidence of acquiescence, although it does assert by analogy with the UK/Norway Fisheries Case that China's longstanding practice was well known to the Philippines. However, in contrast to that case the Critical Study fails to put forward any evidence that Chinese historic rights were considered to be to the exclusion of other States and enforceable against the vessels of other States. There is only evidence of, for example, Qing dynasty regulation of fishing carried out by its own subjects.

The Critical Study thus clarifies the nature of China's historic rights claim to some degree. It fails to explain, however, why such claimed rights are binding as against other States.

Claiming archipelagic status for the Spratley Islands

The critical study does address China's recently deployed argument in the alternative: that the Nansha Qundao (Spratley Islands) are part of an "outlying archipelago" 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).

It strains academic decorum to describe the length of the bow being drawn here.

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 "archipelagic waters". However, UNCLOS does not allow other continental or island States to declare themselves archipelagos in part and use straight baselines to lay claims to swathes of the sea surrounding their distant island possessions.

The CSIL's argument is essentially: there is a parallel customary law concept of "outlying archipelagos" 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 largest 13 of which have a total area of less than 1.7 km². Itu Aba the largest feature in the group, presently controlled by Taiwan, has an area of 46 hectares or about 0.46 km². Compare this with the total area of the Faroe Islands (1,400 km²), Galapagos Islands (8,000 km²), Svalbard (61,000 km²), and the Canary Islands (7,500 km²). Setting aside the law, the claim does not credible by analogy with the factual precedents available.

Conclusion

This blog post represents my first thoughts on a major piece of work which I admit requires further study. My initial impressions, however, aren't 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.

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 including through dispute settlement. But, by and large, this is why major maritime powers to date have supported a rules-based order for the oceans.

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 precisely because they benefited States other than the proponents.

It isn't enough to mount a semi-plausible argument that gives "legal cover" 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 "track two" or soft-power diplomacy it seems unlikely to succeed.

Douglas Guilfoyle (Professor of Monash University of Austraylia)

On Monday 14 May 2018, the Chinese Journal of International Law, an Oxford University Press journal, published an
Douglas Guilfoyle
extraordinary 500 page "Critical Study" of the Awards on jurisdiction and the merits in the South China Sea Arbitration between 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 (discussed in many places including here, here, here, here and here). 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 – and several that weren't – 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.

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:

"These 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" [para 5].

Like pirates, the Tribunal members it seems are close to hostes humani generis and 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's refusal to participate in proceedings. The Critical Study, while challenging almost every other paragraph of the award is entirely silent as to the Tribunal's plainly correct finding that China – even if it disputed jurisdiction – 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 UK and France disputed jurisdiction, for example, they have nonetheless shown up to make the argument.

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:

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?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.



What is the significance of the Critical Study?

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.

However, many of the Critical Study's arguments – especially on jurisdiction – are not new. They were well ventilated in various position papers China put into the public domain (eg hereand here) and scholarship which pre-empted the hearing of case, most notably the volume of essays edited by Bing Bing Jia and Stefan Talmon.

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 Anthea Roberts has noted there is nothing particularly subtle or indirect about the Chinese scholarly community's support for the government position. Julian Ku has 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 "siren call" of nationalism as anyone else. Roberts has also noted the Chinese government's 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 very 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.

Obviously, there is nothing per se sinister 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.)

Chinese historic rights in the South China Sea

The first major question I would like to examine in the Critical Study is the nature of historic rights claimed by China in the waters of the South China and the evidence for these rights. On the evidence question the Critical Study is, at first, somewhat confusing.

The Critical Study takes the tribunal to task for not properly examining pre-twenty first century evidence of China's 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's supposed special rights in the South China Sea, though the evidence led does go to China's 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't 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.

Where the rubber hits the road is the Critical Study's attempt to make the case that the long history of "trade, navigation and fishing in relevant areas of the South China Sea" 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 "establishing administrative setups, strengthening defense at sea, conducting naval patrols, mapping, combating piracy and rescuing foreign ships in distress" (para 530). All of this goes to the proposition that the Chinese People and Government have historically "made no distinction between islands and sea areas" (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 bona fideaspect of "Chinese international law" (in the Robertsean sense of international law as viewed from a Chinese perspective) in which land and water are a single unit.

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 cannot unilaterally bind other States. This is simply not how the law of the sea – or, indeed, international law generally – 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, The International Law of the Sea, 2nd ed, pp. 58-59). The critical study leads little relevant evidence of acquiescence, although it does assert by analogy with the UK/Norway Fisheries Case that China's longstanding practice was well known to the Philippines. However, in contrast to that case the Critical Study fails to put forward any evidence that Chinese historic rights were considered to be to the exclusion of other States and enforceable against the vessels of other States. There is only evidence of, for example, Qing dynasty regulation of fishing carried out by its own subjects.

The Critical Study thus clarifies the nature of China's historic rights claim to some degree. It fails to explain, however, why such claimed rights are binding as against other States.

Claiming archipelagic status for the Spratley Islands

The critical study does address China's recently deployed argument in the alternative: that the Nansha Qundao (Spratley Islands) are part of an "outlying archipelago" 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).

It strains academic decorum to describe the length of the bow being drawn here.

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 "archipelagic waters". However, UNCLOS does not allow other continental or island States to declare themselves archipelagos in part and use straight baselines to lay claims to swathes of the sea surrounding their distant island possessions.

The CSIL's argument is essentially: there is a parallel customary law concept of "outlying archipelagos" 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 largest 13 of which have a total area of less than 1.7 km². Itu Aba the largest feature in the group, presently controlled by Taiwan, has an area of 46 hectares or about 0.46 km². Compare this with the total area of the Faroe Islands (1,400 km²), Galapagos Islands (8,000 km²), Svalbard (61,000 km²), and the Canary Islands (7,500 km²). Setting aside the law, the claim does not credible by analogy with the factual precedents available.

Conclusion

This blog post represents my first thoughts on a major piece of work which I admit requires further study. My initial impressions, however, aren't 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.

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 including through dispute settlement. But, by and large, this is why major maritime powers to date have supported a rules-based order for the oceans.

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 precisely because they benefited States other than the proponents.

It isn't enough to mount a semi-plausible argument that gives "legal cover" 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 "track two" or soft-power diplomacy it seems unlikely to succeed.

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