Book Review: The South China Sea Arbitration: A Chinese Perspective

Book Review: The South China Sea Arbitration: A Chinese Perspective

The South China Sea Arbitration: A Chinese Perspective . Edited by STEFAN TALMON and BING BING JIA . Oxford and Portland, OR : Hart Publishing , 2014. xxiv + 249 pp. £30.00. ISBN 978-1-84946-547-2

Book Reviews

The book The South China Sea Arbitration: A Chinese Perspective, edited by Stefan Talmon and Bing Bing Jia, presents a Chinese perspective on the legal issues involved in the South China Sea dispute between the Philippines and the People's Republic of China (PRC). The setting of the book is the decision of the Philippines to institute arbitral proceedings against the PRC under the United Nations Convention on the Law of the Sea (UNCLOS) with regard to disputes between the two countries in the South China Sea. The PRC announced that it would not take part in the arbitral proceedings. As a consequence, the Chinese position will go unheard. The book aims to advance possible legal arguments on behalf of the absent respondent rather than the official position of the Chinese government.

The introduction outlines the geographical setting and main issues of the dispute and of the decision to submit the case to arbitration. The chapter by Stefan Talmon discusses whether China's rejection of arbitration is justified in international law and the possible political motives of the Philippines for instituting arbitral proceedings. The chapter by Michael Sheng-ti Gau addresses the consequences for the arbitral tribunal of China's refusal to participate in the proceedings. Bing Bing Jia's chapter discusses the question of whether the arbitral tribunal has jurisdiction to deal with the claims advanced by the Philippines, arguing that in this case the tribunal does not have jurisdiction. As such, it cannot proceed to deal with the merits of the case at hand. In their chapter, Haiwen Zhang and Chenxi Mi argue that the Philippine action in bringing its bilateral dispute with China in the South China Sea before an arbitral tribunal is not in accordance with the principles and spirit of international law. Instead, bilateral negotiations as advocated by China are appropriate for achieving a peaceful and definitive settlement of the disputes. The book contains useful annexes on the Chinese and Philippine claims in the South China Sea and the exchanges leading up to the Philippine action to bring the dispute before an arbitral tribunal, a select bibliography on the South China Sea disputes, and a glossary of place names in the South China Sea.

The book is partially successful in achieving the aim of presenting a perspective on the legal arguments of the PRC. The arguments of the book are well documented, and the authors make appropriate use of judicial methodology. Moreover, the book covers the main legal issues of the bilateral dispute between the PRC and the Philippines. As such, the book constitutes a valuable contribution to the field of international law and the law of the sea. The debate on the maritime disputes in Asia suffers from insufficient presentation of the Chinese case. Examples of issues that are largely missing from the debate are arguments on the PRC's interpretations of international law and Beijing's use of these to justify China's claims as well as the political and historical reasons for China to adopt its particular view on the maritime disputes.

The authors' efforts to present a Chinese perspective on the South China Sea arbitration case deserve to be acknowledged and taken into account by practitioners and academics in the field of international law and the law of the sea. However, that being said, a few caveats should also be mentioned. Most importantly, the South China Sea disputes are heavily politicized. The book does not explicitly address this political context since it only promises to look at some of the main legal arguments from a Chinese perspective. This choice limits the relevance of the book to an audience of predominantly legal experts. To reach a wider audience interested in the political aspects of the maritime disputes, it would have been useful to link the legal arguments to issues such as the changing role and positions of the United States on the disputes and how Washington's position is related to the freedom of the high seas. Another interesting topic that could have been addressed is the issue that the provisions of the law of the sea concerning semi-enclosed seas is largely limited to requesting the parties to peaceful negotiations on delimitation issues, in practice encouraging political rather than legal arguments to dominate settlement processes. A more thorough understanding of the diplomatic, strategic and historical issues that influence the legal arguments and how they are used to defend claims would have required embedding the legal arguments in a political contextual discussion. The fact that it is in practice impossible to present a Chinese perspective as distinct from the views of the Chinese government and from the political aspects of the South China Sea disputes becomes clear in the book's treatment of topics such as the possible Philippine motives for instituting arbitral proceedings and the arguments in favour of bilateral negotiations as requested by the PRC. The book's arguments would have been more convincing if these political aspects had been dealt with explicitly. Despite these caveats, the book is valuable as a thorough and well-documented presentation of a Chinese position on the main legal issues to be addressed by the tribunal.

NYT

Asia Pacific

U.S. Tells Asian Allies That Navy Will Patrol Near Islands in South China Sea

The head of the United States Pacific Command, Adm. Harry B. Harris Jr., by a photograph of an island that China is building on the Fiery Cross Reef in the South China Sea. Credit Cliff Owen/Associated Press

BEIJING — The United States has been briefing its allies in Asia on plans to conduct naval patrols near artificial islands built by China in the disputed South China Sea, a move that could escalate tensions with Beijing after President Xi Jinping’s recent visit to Washington, American and Asian officials have said.

The “freedom of navigation” patrols, which would come within 12 nautical miles of at least one of the islands, are intended to challenge China’s efforts to claim large parts of the strategic waterway by enlarging rocks and submerged reefs into islands big enough for military airstrips, radar equipment and lodging for soldiers, the officials said.

Though China claims much of the South China Sea as sovereign territory, the 12-mile zone around the new islands is particularly delicate because international law says such artificial islands do not have sovereign rights up to the 12-mile limit.

The United States has refrained from venturing that close to Chinese-occupied islands in the South China Sea since at least 2012. In May, a United States Navy surveillance plane flew near three of China’s five artificial islands but did not go within their 12-mile territorial zones. Chinese Navy radio operators warned the Americans to leave the area.

Officials in the Philippines said they had been told of the planned patrols in the last several days, and Senator Antonio F. Trillanes IV, the chairman of the national defense and security committee, said Monday that he welcomed the decision.

The United States secretary of defense, Ashton B. Carter, and the secretary of state, John Kerry, were scheduled to discuss the patrols with their counterparts from Australia on Monday and Tuesday in Boston.

The head of the United States Pacific Command, Adm. Harry B. Harris Jr., whom the White House asked several months ago to offer options for how to respond to the Chinese actions in the South China Sea, was also scheduled to attend the meetings.

The senior adviser on China at the National Security Council, Daniel Kritenbrink, told a gathering of American analysts of the region at a meeting in Washington that the White House had decided to proceed with the patrols, according to a participant who requested anonymity to discuss a closed-door briefing.

INDONESIA

By The New York Times

Mr. Kritenbrink did not specify when the patrols would take place, but he suggested that they had been delayed so as not to disrupt Mr. Xi’s visit, the participant said.

The Obama administration and America’s allies in Asia have debated at length how best to respond to China’s moves in the South China Sea, with some urging patrols to push back against Beijing, and with others fearful that the Chinese might use the patrols as justification for a further military buildup.

The Chinese have indicated that they will respond to American warships entering the 12-mile territorial waters around the artificial islands.

“There is no way for us to condone infringement of China’s territorial sea and airspace by any country under the pretext of maintaining the freedom of navigation and overflight,” the Chinese Foreign Ministry said Friday. China is “severely concerned” about reports that the United States planned patrols around the artificial islands in the Spratly archipelago, the ministry’s spokeswoman, Hua Chunying, said. Five other governments also make territorial claims in those waters.

During a news conference with President Obama at the White House, Mr. Xi said China had no intention of militarizing islands in the South China Sea. But exactly what Mr. Xi meant was unclear, American officials said, because he had not said anything like that in the private meetings with Mr. Obama and his senior aides.

One purpose of the patrols would be to test Mr. Xi’s statement, a United States military official said.

At the news conference with Mr. Xi, Mr. Obama emphasized the importance of freedom of navigation, saying, “The United States will continue to sail, fly and operate anywhere that international law allows.”

The United Nations Convention on the Law of the Sea recognizes 12-mile territorial limits on naturally formed islands but does not recognize such limits on submerged reefs that have been built by land reclamation into above-the-waterline islands.

The Chinese have recently built five such islands in the Spratly archipelago. On Fiery Cross Reef, they have completed a 10,000-foot runway capable of accommodating fighter jets.

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