Today’s deadline for the submission of China’s counter-memorial in the Philippines v. China arbitration has created a four-cornered melee of positions papers over one of the key issues in dispute, the legality of China’s nine-dash line claim.

The United States weighed in first on December 5th with the release of its Limits in the Seas paper, declaring the nine-dash line to be internationally acceptable only as a claim to islands within the line; any maritime zones within the lines must be in accordance with UNCLOS. This necessarily criticized China’s ambiguity about the lines and denied the validity of more extensive claims to historic title or historic rights that it sometimes expressed directly or through advocates.

Two days later, China released its position paper on the arbitration, legally contesting the jurisdiction of the tribunal in public without participating in the proceedings. It reiterated that the dispute was essentially founded on the issue of territorial sovereignty over islands and features in the South China Sea, and that even if the tribunal could disregard the sovereignty questions, it could not decide on the Philippine claims without first undertaking maritime delimitations. China argues that either way, the dispute is outside the Annex VII tribunal’s jurisdiction. China further argues that contrary to its claims, the Philippines had not actually undertaken prior negotiations on the subject of the case, and that it was effectively acting in bad faith and abusing its rights by dragging China into an arbitration proceeding contrary to every state’s right to choose the means of dispute settlement. Notably, China avoided any detail on the substance of the nine-dashed line and referred to it only incidentally.

Meanwhile, Vietnam had quietly submitted a statement of its own to the tribunal, a fact announced only on December 11. Though the statement itself has not yet been publicly released, Vietnam’s foreign ministry said that it had requested the tribunal to pay due regard to the legal rights and interests of Vietnam. Vietnam reportedly also supports the Philippines by recognizing the tribunal’s jurisdiction over the case, and contesting the legal basis of China’s nine –dash line. Few other details are available as to the precise content and scope of Vietnam’s statement.

The clashing positions undoubtedly create challenging questions for the tribunal to consider at this stage in the proceedings. The Philippines would have undoubtedly attempted to anticipate China’s principal objections in the memorial it filed last March, and submitted arguments why the arbitration can proceed regardless of the pending disputes over sovereignty over any islands, rocks and reefs, and why the claims do not require maritime boundary delimitations. However, China’s arguments that prior negotiations were inadequate and that resort to arbitration essentially constitutes bad faith and an abuse of process appear to be relatively novel and deserve a response from the Philippines. They may also require a closer review of any documentary evidence submitted by the Philippines on all relevant prior discussions, which may raise other questions for the tribunal.

While the US position on the nine-dash line is consistent with the underlying theory of the Philippine case, it also impliedly raises questions as to whether maritime boundary delimitations within the area of the nine-dash lines are absolutely necessary and unavoidable before the Philippine claims can be decided.

Vietnam’s submission may be critical. Although it made a statement, it has not necessarily intervened formally in the proceedings, and its request for due regard to its legal rights and interests could be taken either as a license to continue without prejudice, or an obstacle due to the absence of an indispensable third party in the proceedings. This necessarily depends on the precise content of Vietnam’s statement, and the tribunal’s appreciation of the impact of Vietnam’s own occupation of features in the SCS on the claims of the Philippines against the Chinese installations and activities. These could affect many of the Philippines’ claims, apart from the issue of the legality of the nine-dash line.

In light of these developments, the tribunal is now very likely to require at least a written submission, if not a hearing on oral arguments, of the Philippines in order to thresh out the complicated and interrelated preliminary questions raised by these submissions. And this does not yet consider whether, after the preliminary questions are satisfactorily answered, the tribunal will require further oral arguments, reception of additional evidence, or the engagement of expert third-party for additional input on the merits. All these will probably push the timetable of the arbitration proceedings to occupy most of 2015. These maneuvers have underlined the complexities involved in legally resolving the South China Sea disputes.

About Jay Batongbacal

Jay L. Batongbacal is an associate professor at the University of the Philippines College of Law and director of the university’s Institute for Maritime Affairs and Law of the Sea. He was a U.S.-ASEAN Fulbright Initiative Visiting Scholar in Washington, DC, in 2014-2015, assisted the Philippines in pursuing its claim to a continental shelf beyond 200 nautical miles in the Benham Rise Region, and is listed as one of the UNESCO/IOC experts for special arbitration under UNCLOS Annex VIII.