The South China Sea Arbitration and Beyond: China’s Approach to the Law of the Sea and the Rule of Law

The South China Sea Arbitration and Beyond: China’s
Approach to the Law of the Sea and the Rule of Law*
Paul Reichler**
Abstract
Within the South China Sea Arbitration, there were a number of significant issues. Amongthem, the author sees that the two issues stand out above the others. One is Chinaʼs claim
to the waters and seabed of the South China Sea based on its so-called nine-dash line andthe other is the maritime entitlements of the islands in the South China Sea̶particularly
those of the Spratly Islands. The author discusses what these issues meant, tying it into
the developments between China and the Philippines in the South China Sea since the
Arbitral Award and how it has affected the attitudes and actions of other South China Sea
coastal States. Comparing Chinaʼs approach to its neighbors in the South China Sea with
its approach to its neighbors to the East̶South Korea and Japan̶in regard to maritime
issues, the author also points out that China does not eschew international law in setting out
its maritime boundary claims. To the contrary, it attempts to justify its far-reaching claimson the basis of international law, specifically, UNCLOS and customary international law.
It allows China to present itself to the outside world as respectful of the rule of law. Being
seen as law-abiding enhances their reputation and their “soft” power, that is, their ability
to influence the conduct of other States. The author concludes that these disputes can,and will, only be resolved by agreements between or among China and the various otherprotagonists although it will take time and will not be easy.

1. The Chagos Archipelago CaseG

ood afternoon, everyone. The topic that I have been asked to speak about is, “The South
China Sea Arbitration and Beyond: Chinaʼs Approach to the Law of the Sea,” and I will
come to that in a moment. Before I address that topic, I was asked by the organizers
if I would make a few remarks about the International Court of Justice(ICJ)ʼs recent
advisory opinion issued on 25 February 2019, in the case involving the Chagos Archipelago. I had
the honor of being counsel to Mauritius in that case, and I was present during the reading of theadvisory opinion.
Briefly, the case involved the decolonization of Mauritius. In 1965, prior to the granting of
independence of Mauritius by the British, the British themselves divided the colony of Mauritius,
keeping for themselves a portion of that colony, specifically, the Chagos Archipelago, and creatinga new colony, which they called the British Indian Ocean Territory. They did that for the purposeof leasing the main island, Diego Garcia, to the United States for use as a military base.
*This is an edited transcript of a keynote speech made by the author at the symposium “Territory andMaritime Issues in East Asia and their Origins,” hosted by JIIA, Doshisha University Center for Study ofSouth China Sea, and Faculty of Law Doshisha University on March 2, 2019.

** Paul Reichler, Esq. is Partner at Foley Hoag LLP and Lead Counsel for the Philippines in the South
China Sea Arbitration Case.

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In 1968, Mauritius was granted independence, but without the Chagos Archipelago. As asovereign state, Mauritius never stopped demanding the return of that piece of its territory, which
had been severed from it by the British prior to the granting of independence.
Because the British have reser vations to their acceptance of ICJ jurisdiction, it was notpossible for Mauritius to bring a contentious case against the United Kingdom; however, after
many years of presenting the issue before the General Assembly of the United Nations, in 2017
the General Assembly adopted a resolution by an overwhelming vote to submit the matter to theInternational Court of Justice in the form of a request for an advisory opinion, and specifically, theGeneral Assembly asked the Court to answer two questions.
One, given that the Chagos Archipelago was severed from Mauritius prior to independence
and remained under British rule, was the decolonization of Mauritius ever lawfully completed?
And two, what are the consequences, the legal consequences today, of the continued colonialadministration of the Chagos Archipelago?
The court answered both questions, and because these were advisory proceedings, every
State that is a member of the United Nations had an opportunity to participate if it chose to do so.
Some 30 States did, either through written submissions or at the oral hearings. The vast majority
spoke in support of Mauritiusʼ position.
In response to the first question, the Court determined that the decolonization of Mauritius
was not lawfully completed. This was because it was unlawful in 1965 for the British todismember the colonial territory and to establish a new colony since, as of 1965, internationallaw had already crystallized into a rule, a customary rule, requiring the decolonization of subject
peoples, of non-self-governing peoples, in accordance with the freely exercised self-determinationof those peoples; and the United Kingdom had failed to respect the right of self-determinationof the people of Mauritius when it severed the Chagos Archipelago and excluded it from thedecolonization of Mauritius.
In fact, the United Kingdom not only retained control of that part of Mauritius, but forcibly
removed the native population of these islands, against their will, leaving their possessions
behind, and deposited them in Mauritius and the Seychelles. It was, as the Court found, ahorrendous violation of their human rights.
In response to the second question, in regard to the legal consequence of the United
Kingdomʼs failure to lawfully complete the decolonization of Mauritius, the Court ruled that the
U.K.ʼs ongoing colonial administration of the Chagos Archipelago is an internationally wrongfulact, which is continuing in nature, and that the U.K. is obligated, under international law, toterminate that administration as rapidly as possible.
The Court also ruled that, because self-determination and decolonization are principles so
fundamental to international law that they have erga omnes application, other Member States of
the United Nations must cooperate in bringing about the decolonization of Mauritius, and must
not contribute to or support the continued colonial administration by the British.
Now, this is an advisory opinion, so it is not a legally binding judgment of the Court; however,
it is an authoritative determination of the legal status of the Chagos Archipelago, and theobligations of the United Kingdom under customar y international law, issued by the highest
judicial authority in the international legal system. Hopefully, the British, who have always
professed their commitment to the rule of law, will comply with their legal obligation to complete
the decolonization of the Chagos Archipelago by terminating their colonial administration as
rapidly as possible.
Mauritius, meanwhile, will return to the United Nations General Assembly, now that the Court
answered the General Assemblyʼs questions, for a further resolution implementing the Courtʼsrulings.
I will now turn to my main topic, the “South China Sea Arbitration and Beyond,” and discuss,
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in this context, what appears to be Chinaʼs approach to the law of the sea.

2. A Review of China’s Maritime Claims in the South China Sea and the Arbitral
Tribunal’s Award
The award is over 400 pages, so naturally I can only summarize it. I did give a presentation on theaward in some detail at a JIIA symposium in Tokyo two years ago, and my presentation has been
published by JIIA, and is available to any of you who might be interested.1 There were a numberof significant issues in that case. Today, I will focus on the two issues that, in my judgment, standout above the others.
The first of these issues is Chinaʼ s claim to the waters and seabed of the South China
Sea based on its so-called nine-dash line. China claims not only sovereign rights, but actual
sovereignty over all of the waters and seabed within the limits of this nine-dash line. If you haveseen it depicted on a map, you know how exaggerated a claim this is. The South China Sea isshaped like a bucket with the top being the mainland coast of southern China. The nine-dash line
is like the tongue of a cow, which reaches down from the top of the bucket almost entirely to thebottom. It extends more than 600 miles from the Chinese mainland coast, and comes very close
to the Philippines, Malaysia, Brunei, Indonesia and Vietnam, within 35 to 50 miles of their coasts.
Chinaʼs claim, therefore, overlaps and purportedly negates the vast majority of their 200-mile
maritime entitlements under the United Nations Convention on the Law of the Sea (UNCLOS), towhich China and all of the other States are parties.

3. UNCLOS and Historic Rights to Maritime Areas
China makes this extremely exaggerated claim based on its alleged historic rights, and it claims
that its historic rights supersede the legal rights of its neighbors under UNCLOS. The tribunal
decided that this is a completely untenable claim, which has no basis in international law. The
tribunal decided this unanimously. It held that when the States Parties adopted UNCLOS in 1982,
they specifically rejected the idea that any previously claimed historic rights in areas beyond the
12-mile territorial sea would survive the Convention. The new regimes for the exclusive economic
zone and continental shelf out to 200 miles, beyond the 12-mile territorial sea, were adopted withthe express intention of voiding and replacing any previously existing claims, based on historicor economic rights, to areas then considered “high seas.” Thus, China could not lawfully claim
to have historic rights in areas beyond 12 miles from its coasts, although it could claim, like anyother coastal State under UNCLOS, an exclusive economic zone and continental shelf extending
up to 200 miles, but no farther.
The tribunal further found, also unanimously, that even under customary international law,prior to UNCLOS, China could not make a credible claim of historic rights to any part of theSouth China Sea far removed from its coasts. Under customar y international law, a claim ofhistoric rights to an area must be based on continuous administration of the area, under claimof title, over a long period of time, to which other States acquiesce. The tribunal ruled that there
was no evidence to support Chinaʼs historic rights claim. Indeed, up until the end of World War II,
China had never even made a claim to any part of the sea south of the Paracel Islands, let alone
exercised continuous administration over it, or enjoyed the acquiescence of any other State to its
dominion.
Historically, there were long periods, sometimes lasting centuries, when China itself, underthe emperors, forbade Chinese vessels from navigation in the South China Sea, in an effort to1

The lecture made by the author has been published on the website of Japan Information Center, JIIA.
For details see Paul Reichler, “The Rule of Law and the Path to a Just and Lasting Peace in the South
China Sea,” Japan Review Vol.1 No.2, https://www.jiia-jic.jp/en/japanreview/pdf/JapanReview_Vol1_
No2_Winter_2017.pdf

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close China off from the influence of the European colonial powers. So, the idea of any continuous
administration under claim of title over a prolonged period of time, let alone with acquiescence ofneighboring States, just had no evidence whatsoever to support it.
Of course, UNCLOS replaced customary international law in regard to maritime rights in theSouth China Sea. But even under customary law, the arbitral tribunal found, Chinaʼs nine-dashline claim was groundless.

4. Islands and Maritime Entitlements
The other major issue decided by the tribunal, in my judgment, concerned the maritime
entitlements of the islands in the South China Sea, and particularly those of the Spratly Islands.
It was Chinaʼs position that it was sovereign over all of the Spratly Islands, that they constituted
an archipelago, and thus straight lines could be drawn connecting the outermost features, fromwhich maritime entitlements up to 200 miles would extend.
The tribunal unanimously rejected Chinaʼs thesis. First, it decided that it did not need todetermine which State was sovereign over these disputed islands, because maritime entitlements
do not depend on who is sovereign; they depend on the nature of the particular insular feature
under Article 121 of UNCLOS.
The tribunal found that the Spratly Islands are not entitled to archipelagic status, because,
under UNCLOS, which replaced customary international law, archipelagic status is conferred
only on an “archipelagic State,” which is defined in the Convention as a State whose maritime
areas exceed its land territory by a ratio of up to 9:1. In comparing land to maritime area, theentire continental, as well as insular, landmass of the State must be taken into account. It is
impossible to claim archipelagic status solely for a group of outer islands, like the Spratlys,
without including Chinaʼs entire landmass. When that is included, the land territory exceeds themaritime areas, and archipelagic status is unavailable.
The tribunal then considered whether the individual islands were entitled, under UNCLOS,
to 200-mile maritime areas, or whether their entitlements were limited to only a 12-mile territorial
sea. In doing so, it was called upon to interpret Article 121(3) of UNCLOS, which denies any
maritime area beyond 12 miles to any island that constitutes a mere “rock,” which is defined as an
insular feature that is not capable of sustaining human habitation or economic life of its own. The
tribunal carefully analyzed all of the largest islands in the Spratly Group, especially the largest,
Itu Aba, which is claimed by China, the Philippines and Vietnam, and is actually occupied by
Taiwanese government forces. It ruled that neither Itu Aba nor any other Spratly feature naturally
provided the essential elements for sustaining human life, that they were therefore “rocks” under
the Convention, and lacked any maritime entitlements beyond 12 miles.
As a result, the tribunal found, China was limited in its maritime entitlements in the South
China Sea to a 200-mile exclusive economic zone and continental shelf, measured from its
mainland coast, and a 12-mile territorial sea from any island in the Spratlys over which it may besovereign.
When one overlays the picture of Chinaʼs entitlements onto the 200-mile entitlements from thecoasts of the Philippines, Malaysia, Indonesia and Vietnam in particular, one finds that Chinaʼsentitlements do not, in fact, overlap much of the entitlements of the other States; that is, all of
the other States are entitled to enjoy almost the entirety of their 200-mile entitlements under
UNCLOS, free of any lawful Chinese claim.

5. China’s Rejection of the Award
China, as we know, has formally rejected the findings of the tribunal, and its award. It decided
not to participate in the proceedings, and it tried mightily to discredit them. It has denounced thearbitrators individually, and it has gone to great lengths to publish and promote criticism of their
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award. But, significantly, while it has denounced the award, it has not withdrawn from UNCLOS.
Indeed, it has tried to defend its claims by arguing that they are consistent with UNCLOS, andthat the tribunal made an erroneous interpretation of the Convention.
I think this is very significant, for reasons that I will come to. But, first, let us look at what
China is now arguing. On historic rights, they argue that the Convention does not replace historicrights that existed under customary international law within the regime of the exclusive economic
zone and continental shelf, but that historic rights and the new regimes exist side by side. China
may be the only State in the world that advances this interpretation of the Convention, which thearbitral tribunal flatly rejected. But I think it is significant that China continues to argue that its
claims fall within UNCLOS, thus reinforcing its adherence to the Convention.
On islands, too, China continues to argue that its claims are consistent with UNCLOS:
specifically, that the Spratlys constitute an outlying archipelago of China, and their archipelagic
status is well-founded under customary international law. Again, the five arbitrators all rejected
this claim, as would most, if not all, experts on UNCLOS. But it is not insignificant that China
is attempting to defend its claims not by rejecting UNCLOS but by insisting that they are
permissible under the Convention. I will offer my thoughts on why China takes this approach in
the final section of my presentation.

6. Developments between China and the Philippines in the South China Sea
Since the Arbitral Award
Let me now review what has happened between China and the Philippines since the issuance of
the arbitral award in July of 2016.
First, as you know, there was a change in government of the Philippines just prior to theissuance of the award, and they adopted a different policy toward China. They made a decisionthat they would not, indeed they could not, abandon the award or the benefits that theyobtained under it. But they decided not to insist on compliance directly to the Chinese. Instead,they adopted a policy of friendliness toward China, and they have reaped significant Chinese
investment and increased trade in return.
Second, the Chinese have allowed Philippine fishermen to return to fish at ScarboroughShoal, which China had blocked since 2012. This was one of the reasons the Philippines brought
its case against China. The arbitral tribunal ruled that Chinaʼs prevention of Philippine fishingactivity at Scarborough Shoal was a violation of the fishermenʼs historic fishing rights, and thatthey should be allowed to return to fish there. In this sense, China is now complying with one ofits obligations under the award.
Third, China has engaged with the Philippines about joint development of the resources
at Reed Bank, a maritime area that lies between the Spratly Islands that China claims and thePhilippine coast at Palawan. The seabed in that area is believed likely to hold huge petroleum
deposits. Prior to and during the arbitration, China threatened and used force to keep thePhilippines from exploring in this area, which is 100 miles off the Philippine coast and plainly
within the Philippine continental shelf and exclusive economic zone. As a result of Chinaʼs recent
approach, the two States are in discussion about joint development. Although no agreement has
yet been reached, it may well be that the Philippines gets to enjoy the resources of its continental
shelf in collaboration with China.

7. Attitudes and Actions of Other South China Sea Coastal States
The attitudes and actions of other South China Sea coastal States after the issuance of the award
are also significant.
Of course, the award is binding only between China and the Philippines; however, some of
the tribunalʼs findings―including the invalidity of Chinaʼs nine-dash line and its incompatibility
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Paul Reichlerwith UNCLOS, and the ruling that none of the Spratly Islands generates an entitlement beyond
its 12-mile territorial sea―are as beneficial to Vietnam, Malaysia and Indonesia as they are to thePhilippines.
Despite its rejection of the award, China has been careful to avoid confrontations with theother South China Sea States. It does not appear to have engaged in any further drilling or
exploration for oil within 200 miles of their coasts; nor has it attempted to prevent fishermen fromthose States from fishing within these limits.
Moreover, China has not undertaken any action to challenge their hold on the islands in the
Spratly group that they already occupy. To be sure, China has consolidated its hold on the islandsin this group that it already occupied prior to the arbitration. It has ominously built militar yfacilities on them, which some States regard as a threat to peace and security, but it has not
attempted to dispossess Vietnam, Malaysia, or the Philippines of any of the islands that they hold.
So, it seems that China has been a bit more cautious, and not especially aggressive, vis-à-vis theother States in the wake of the arbitral award.
The other States have been cautious, as well. Vietnam, Malaysia and Indonesia, in particular,
have interests similar to those of the Philippines, and they have made very clear their refusal toaccept the nine-dash line and Chinaʼs exaggerated claims. Similarly, they reject Chinaʼs claimsof exaggerated entitlements from small islands. But they have not been particularly effective inchallenging China, because they have acted individually rather than collectively. The decision of
the Philippines, shortly after the issuance of the arbitral award, to deal with China bilaterally―adecision that China encouraged and welcomed―made collective action less feasible. ASEAN has
not been effective in mounting a collective approach, because it acts by consensus and includes
some States that are subservient to Chinaʼs interests. Only an alliance between the Philippines,
Vietnam, Malaysia and Indonesia would have a chance of winning concessions from China.
There is strength in numbers, and an alliance of these States could bring greater pressure on
China to accommodate their lawful and legitimate interests, if they act together. But this will not
happen as long as the Philippines, under President Duterte, remains committed to its go-it-alone
approach vis-à-vis China. This approach is, of course, welcomed by China, which prefers dealing
with each of the South China Sea States on a bilateral basis, which allows China to take greater
advantage of its superior power.

8. UNCLOS and China’s Claims in Regard to Maritime Delimitation with SouthKorea

It is interesting to compare Chinaʼs approach to its neighbors in the South China Sea with its
approach to its neighbors to the East, namely South Korea and Japan, in regard to maritime
issues.
China and South Korea face each other across the Yellow Sea, where the boundary has not
yet been delimited. There have been sporadic attempts to initiate negotiations. Chinaʼs approachhas been that before the parties can agree on a maritime boundary, they should agree on theequitable principles that will govern the delimitation of the boundary.
This contrasts with the approach to delimitation taken by the ICJ, ITLOS and UNCLOS arbitral
tribunals. UNCLOS itself prescribes that boundary delimitation in the exclusive economic zone
and continental shelf should be based on equity, and international tribunals have adopted a clear
methodology for achieving that objective via a three-stage process: first, drawing an equidistanceline or a median line, then assessing whether there are relevant geographic circumstances whichmake the equidistance line inequitable, in which case an adjustment would be made to it, and thentest to make sure the line does not result in a disproportionate division of the disputed maritime
area between the two parties.
But China resists the standard “equidistance” approach to boundary delimitation. Instead, it
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has proposed to South Korea that, instead of drawing a median line (and adjusting it as needed),
the boundary in the continental shelf should reflect the fact that the vast majority of the seabed in
the Yellow Sea, the sediments, originate in China and are carried to the Sea by Chinese rivers; onthis basis, China claims that it is entitled to the vast majority of the continental shelf between the
two States.
This is an interesting theory, and it is not bad science. But it is bad law. Boundary delimitationin the continental shelf does not depend on the source of the sediments that comprise it. In fact,
this theory was addressed, and rejected, by ITLOS in the delimitation case between Bangladesh
and Myanmar. Bangladesh argued for a greater share of the continental shelf in the Bay of Bengal
because most of the sediments were deposited by the major river systems―the Ganges andthe Brahmaputra―that traversed Bangladesh. Not a single one of the 23 judges on that tribunal(including two ad hoc judges) agreed that this was a relevant factor in the delimitation of thecontinental shelf. Instead, the tribunal applied the standard three-step process.
The point here is that China does not eschew the law. It attempts to justify its claim on thebasis of a legal theory that it considers consistent with UNCLOS, or with customary internationallaw, but which plainly is not. This is similar to Chinaʼs invocation of the nine-dash line in the South
China Sea, and Chinaʼs argument that it is consistent with UNCLOS and customary internationallaw.

9. UNCLOS and China’s Claims in Regard to Maritime Delimitation with Japan

We can see the same patterns in Chinaʼs approach to maritime delimitation with Japan.
Japan, by virtue of its legislation, claims that the boundary shall be determined by agreement,
but in the absence of agreement it shall be a median or equidistance line. This is consistent
with UNCLOS. Because the distance between that partiesʼ coasts is less than 400 miles, theirrespective 200-mile entitlements to an exclusive economic zone and continental shelf overlap.
In such circumstances, UNCLOS and the case law interpreting it require that the boundar y
be delimited by a median line, with appropriate adjustments to accommodate any relevant
geographical factors that might exist (if any).
China, however, rejects that approach. This is what their Ministry of Foreign Affairs wrote
in 2015: “China claims that the 200-mile exclusive economic zone and Chinaʼs continental shelfin the East China Sea prolongs naturally to the Okinawa Trough.” Now this of course is a very
serious issue for Japan. China rejects equidistance in favor of geological continuity. It claims thatits maritime entitlements extend beyond the median line with Japan, and even beyond 200 miles
from its own coast, all the way to the geological breach in the seabed known as the Okinawa
Trough, which is much closer to Japan than to China.
There are two serious problems with Chinaʼs approach. First, the EEZ is unrelated to theseabed; it consists only of the waters above the seabed, and UNCLOS does not permit it to extend
beyond 200 miles in any circumstances. China appears to be confusing, perhaps deliberately, theEEZ and the continental shelf.
Second, in regard to the continental shelf, China invokes Article 76(1) of UNCLOS, which
entitles each coastal State to a shelf extending up to 200 miles from its coast, or, in some cases,
longer, if there is a natural prolongation. However, even if the Chinese shelf naturally extends
beyond 200 miles, there is a dif ference between “ entitlement ” and “ delimitation. ” China ʼ s“entitlement” might be more extensive than Japanʼs 200 mile “entitlement,” but the extension
completely overlaps with Japanʼs “entitlement.” Where there are overlapping entitlements, adelimitation is required. And, as the ICJ and other international tribunals have consistently ruled,delimitation begins with a median or equidistance line. It does not follow the geological featuresof the seabed.

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10. Obser vations on China’s Commitment to UNCLOS and the Rule of Law
Of course, we are not here to delimit the maritime boundary between China and Japan. Our
purpose is to discern and understand Chinaʼs maritime claims and their purported justifications.
And what we see in the East China Sea is consistent with the pattern obser ved in regard to
Chinaʼs approaches in the South China Sea and the Yellow Sea. Here again, China does noteschew international law in setting out its maritime boundary claims. To the contrary, it attempts
to justify its far-reaching claims on the basis of international law, specifically, UNCLOS andcustomary international law. This allows China to present itself to the outside world as respectfulof the rule of law.
Many experts thought that China would withdraw from the Convention after the July 2016
arbitral award. But it did not. China remains a party to UNCLOS and it continues to profess its
commitment to UNCLOS. It even claims to be complying with the Convention. This is helpful,and it is an important starting point for thinking about solutions to some of these problems, evenif we regard Chinaʼs legal interpretations as self-serving and implausible.

11. UNCLOS and Disputed Islands in the South China Sea, East China Sea andSea of Japan: Is There a Path to Settlement?
Why does China remain a party to UNCLOS and present itself as law-abiding and respectful of
the rule of law? It must be because China considers that its national interest is best served thisway. Why might this be so? Because China, like other States, recognizes the value of “soft” power,that is, the influence that is generated by the reputation the State establishes in the international
community, through its behavior. No one needs an explanation of how “hard” power―including
military and economic might―generates influence. “Soft” power, by contrast, is more subtle andless easy to appreciate or measure. But there is no question that it exists, and that it is important
to States. This is demonstrated in many ways. One is the way States invariably attempt to justify
their actions as lawful. Even obviously aggressive behavior is almost always defended by theperpetrator as consistent with international law. Why do States go to this trouble?
Because they know that being seen as law-abiding enhances their reputation and their“soft” power, that is, their ability to influence the conduct of other States. China, as its behavior
demonstrates, understands this.
The question is: does Chinaʼs interest in being seen as law-abiding create opportunities forpeaceful and equitable settlement of its disputes with neighboring States in the South China Sea,
the Yellow Sea or the East China Sea? And what forms could a dispute settlement process take?
We can probably rule out international arbitration, at least for the foreseeable future. China
rejects it. It wonʼt participate. So the arbitration provisions of UNCLOS would not be helpful toother States that have disputes with China. Although it would still be possible to instigate anarbitration against China, and even to obtain an award, the knowledge that China wonʼt participate
and will inevitably refuse to accept the award diminishes the value of such an approach. So what
can else be done?
The Convention also provides for compulsory conciliation. This is a less confrontational or
adversarial approach, more akin to mediation than litigation. It actually succeeded between TimorLeste and Australia, the only States ever to employ it, and it produced an agreement. Is it possiblethat China would accept conciliation if it were instigated by Vietnam, for example, or Indonesia(or South Korea or Japan)? What makes conciliation potentially attractive is that the result iseither an agreement between the parties, or a recommendation by the conciliators; it does notproduce a binding judgment, or compel any State to accept a solution it finds objectionable.
Even if the current position of China is to reject all forms of third-party dispute settlement, it
might find, eventually, that a mediated settlement negotiation process (which is what conciliation
fundamentally is), might be preferable to a permanent stalemate and a frozen conflict.
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Another possibility for addressing Chinaʼs “unique” interpretations of UNCLOS, would be toseek an advisory opinion from the ICJ or ITLOS. This would not be a contentious proceeding
and would not require Chinaʼs consent. It is more difficult to seek an opinion from the ICJ, which
requires a resolution of the U.N. General Assembly requesting one. ITLOS merely requires arequest from any international organization whose charter authorizes it to make such a request,
including a newly-formed organization that is created for that purpose. ITLOS also has theadvantage of including a Chinese judge (as well as judges from Japan, South Korea and Thailand).
Opinions might be sought on the following questions: Did historic rights claims to areas beyond
12 miles sur vive the Convention and the regime of the EEZ and the continental shelf? Whatelements are required to support a claim of historic rights under customary international law?
May a continental state that claims a few offshore islands consider itself an archipelagic state
under UNCLOS? Does the origin of sediments that comprise the continental shelf constitutea relevant factor in the delimitation of the boundary in the shelf? Does natural prolongation of
a Stateʼs shelf take precedence over a median line in delimitation of the boundary in the shelf?
These are questions quite suitable for an advisor y opinion, and the opinion(s) given, which
would be likely to undercut Chinaʼs legal arguments, might help achieve progress in negotiating
settlements of the various disputes.
In the end, these disputes can, and will, only be resolved by agreements between or among
China and the various other protagonists. This will take time, and it will not be easy. It will takepersistence on the part of Chinaʼs neighbors, and most likely their cooperation and coordination
with one another. And it will also require a change in Chinaʼs attitude, and a conclusion on Chinaʼspart that its national interest can be better served by reaching equitable accommodations with its
neighbors, in ways that respect their rights under UNCLOS as well as Chinaʼs, and demonstrate
the commitment of all to the rule of law, than by permanent stalemate and interminable conflict,with the attendant risk of escalation and descent into violence.

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