Sellars: Rocking the Boat: The Paracels, the Spratlys, and the South China Sea Arbitration

Kirsten Sellars (Chinese Univ. of Hong Kong - Law) has posted Rocking the Boat: The Paracels, the Spratlys, and the South China Sea. Here's the abstract:

On 12 July last year, the Permanent Court of Arbitration found overwhelmingly in favour of the Philippines in its dispute with the People’s Republic of China over maritime entitlements in the South China Sea. This piece appraises the decision in light of the events leading up to the current controversy in the Paracel and Spratly groups.

To investigate the source of the conflict, one does not have to go back very far. In the final stages of the Vietnam War, China ejected South Vietnam from the Paracel Islands — a group of tiny maritime features in the South China Sea claimed by both nations. After clashes on 19-20 January 1974 involving some fifteen naval vessels, the South Vietnamese withdrew. Four Vietnamese had been killed, dozens had been wounded, and scores more were missing or captured. After this classic ‘weekend war’, China tried to dampen down the affair by swiftly releasing the prisoners and refusing to be drawn into an international debate.

Within days, though, there was more activity, this time on the Spratly Islands, a larger group of maritime features further to the south of the South China Sea. From 1971 to 1974, this group saw the arrival of armed garrisons, the construction of barracks and airfields, the extension of claims to reefs, the search for oil and gas, and the degradation of the marine environment — precisely the sort of activities which the Philippines accused China of in the recent arbitration. Back then, though, it was the Philippines, South Vietnam and Taiwan involved in these pursuits. China arrived later. While this does not excuse Beijing’s current actions, it does put a different complexion on the current claims within the South China Sea.

By drawing on these earlier events, it is possible to construct a legal path to the current arbitration, based on the respective parties’ claims to the Spratlys features and the maritime zones around them. Having situated the arbitration within this legal debate, one can then critically appraise the Court’s reasoning on its jurisdiction over the case, its utilisation of the historical facts, and its interpretation of the UN Law of the Sea Convention.