The South China Sea Arbitration: A Chinese Perspective

• Author: Timothy Stephens
• Position: Professor of International Law and Australian Research Council Future Fellow, Faculty of Law, University of Sydney
• Pages: 124-126

(2015) 29 ANZ Mar LJ

124

BOOK REVIEW

Stefan Talmon and Bing Bing Jia (eds), The South China Sea Arbitration:

A Chinese Perspective. Hart Publishing, Portland (2014). 274 pp.

ISBN: 9781849465472

Tim Stephens

*

The South China Sea is a highly contested and complex geographical area, semi enclosed by seven nations

(Brunei, Indonesia, Malaysia, China, the Philippines, Taiwan and Vietnam), and scattered with an array of

islands and other features including reefs, shoals, cays and rocks, many of which are claimed by multiple States.

China claims and occupies a number of islands and other smaller landforms in the region, and is creating new

islets with po rts, military barracks and airstrips by pumping millions of tonnes of sand onto reefs, including on

the appropriately name d Mischief and Fiery Cross R eefs in the Spratlys. These work s are building what the US

Commander of the US Pacific Command, Admiral Harris, has called China’s ‘great wall of sand’.1 Other States

in the region are also undertaking similar works, although not on the same scale.

In addition to claims to particular features, China also makes a deliberately unspecific claim to an arc of

influence marked out by a series of dashes on its map of the region. This is the so-called nine dash line that has

appeared on Chinese maps since the 1940s, and which encircles virtually the entire South China Sea.

There are two interconnected bodies of international law of relevance to the ambitions and activities of China

and other States in the South China Sea.2 The first is the law concerning sovereignty over territory. The second

is the law of the sea as set out in the 1982 United Nations Convention on the Law of the Sea (UNCLOS),3 to

which all States in the region are parties.

The law of the sea borrows the Roman law notion dominium maris and so most maritime zone issues flow from

the prior question of which State has sovereignty over contested territory. Nonetheless, there are some law of

the sea issues separable from sovereignty disputes, including the legal status of the hundreds of islands, rocks,

low-tide elevations and reefs. How these are categorised under UNCLOS has major implicatio ns for what

maritime zones can emanate from them, regardless of who actually owns them. For instance, artificial isla nds

can possess no territorial sea, and uninhabitable rocks cannot have an exclusive economic zone or continental

shelf.4

Given that South China Sea States are parties to UNCLOS the possibility of turning to UNCLOS’s sophisticated

dispute settlement system has always seemed a possibility. There was considerable anticipation, therefore, when

in January 2013 the Philippines initiated arbitral proceeding s against China under UNCLOS.

The Philippines argues that China cannot claim the waters within the nine dash line, as there is clearly no basis

for such a claim under UNCLOS, and the area is far and beyond any claim that China would legitimately have

even were it sovereign over all the territories it claims. The Philippines also contends that China is unlawfully

asserting maritime entitlements from rocks, submerged banks, reefs and low tide elevations that do not qualify

as islands under UNCLOS.

China has objected to the case from the outset and taken no part in the proceedings. But outside the courtroom

China has given several reasons for rejecting the arbitration, including that the dispute really relates to territorial

sovereignty and also concerns maritime boundaries, a matter that China has lawfully excluded from UNCLOS

* Professor of International Law and Australian Research Council Future Fellow, Faculty of Law, University of Sydney.

1 Clive Schofield, ‘Why the World is Wary of China’s “Great Wall of Sand” in the Sea’, The Conversation, 8 May 2015,

-the-world-is-wary-of-chinas-great-wall-of-sand-in-the-sea-40070>.

2 See Chris Ward SC, ‘The South China Sea: An Introduction to the Disputes and the Role of International Law’ (2014 Justice Richard

Cooper Memorial Lecture, Sydney, 17 November 2014).

3 1833 UNTS 3.

4 UNCLOS, art 121(3). For discussion see Robert C Beckman and Clive H Schofield, ‘Defining EEZ Claims from Islands: A Potential

South China Sea Change’ (2014) 29 International Journal of Marine and Coastal Law 193. See generally Donald R Rothwell and Tim

Stephens, The International Law of the Sea (Hart Publishing/Bloomsbury, 2nd ed, 2016).