An international Commission of Inquiry for the South China Sea? Defining the law of sovereignty to determine the chance for peace.

• Author: Mitchell, Ryan
• Position: Abstract through III. The Dissensus over UNCLOS: The Law of the Sea Versus the Law of Sovereignty, p. 749-782

ABSTRACT

The multilateral territorial dispute over the South China Sea has intensified in recent years. In response, some observers endorse the apparent turn to "lawfare" on display in the ongoing Philippines v. China arbitration, conducted under Annex VII of the UN Convention on the Law of the Sea (UNCLOS). Yet the limited subject matter of this arbitration means that it can contribute only modestly to any ultimate resolution between claimants. Indeed, the Chinese side has argued against tribunal jurisdiction precisely on the basis of the primacy of questions over territorial sovereignty--which are barred from UNCLOS proceedings--to the determination of all other legal issues being contested between the parties.

This Article assesses the merits of these and other major objections to the UNCLOS arbitration and proposes a supplemental legal mechanism: an international Commission of Inquiry (COI) by involved states, addressing French, Japanese, and other extra-regional states' now inactive claims regarding the sovereign status of the region's various island territories through the end of World War II hostilities in 1945. Such a COI would acknowledge, as the UNCLOS arbitration does not, the centrality of the legal issue of territorial sovereignty to the dispute. Yet by limiting its findings to the islands' contested status during the period of European and Japanese colonialism in Asia, rather than determining current ownership, a COI could nonetheless avoid exacerbating tensions or alienating claimants.

Most importantly, such an approach could serve to establish a narrowed, but still ample, range of possible legal claims and outcomes for further adjudication. Claims based on "discovery" and "conquest" could at least potentially be ruled out, leaving only "cession"-based arguments (the implications of which are considerably less divisive, as they are premised on mutual recognition between equal states). A COI would also be based upon and contribute to a regional "epistemic community" of juridical expertise, furthering transnational civil society ties between claimant states. Finally, the positivistic discourse based on the principle of legal equality pursued by a COI as here proposed could, potentially, more generally dissuade unilateral behavior by individual states, while promoting mutual recognition and cooperative arrangements among regional actors.

TABLE OF CONTENTS I. INTRODUCTION II. PHILIPPINES V. CHINA: BACKGROUND AND POTENTIAL OUTCOMES A. Summary of the Dispute B. The Structure and Purpose of UNCLOS Arbitration C. Facts Underlying (and Complicating) the Dispute D. Potential Scope of a Final Ruling III. THE DISSENSUS OVER UNCLOS: THE LAW OF THE SEA VERSUS THE LAW OF SOVEREIGNTY A. Evaluating Chinese Jurisdictional Objections and Philippine Responses B. Historical Claims, Nationalism, and the Dangerous Ambiguity of "Discovery" C. Abandoning the Discovery and Occupation Paradigm IV. BENEFITS OF AN INTERNATIONAL COMMISSION OF INQUIRY A. A Modern Innovation for a Multipolar World B. "Arbitration in Disguise"? Law and Facts in Institutionalized Inquiry C. Key Potential Findings: The Unavailability of Discovery and Conquest D. Effects: Clarifying Claims and Reframing the Legal Discourse V. COLLECTIVE INQUIRY AND THE PROJECT OF REGIONAL COOPERATION A. Sovereignty, Normativity, and Realism in International Law B. Constituting Mutual Recognition in the South China Sea C. Collective Inquiry, Epistemic Community, and Asian Order VI. CONCLUSION I. INTRODUCTION

"[T]hey say that justice is the constant will of giving to every man his own. And therefore where there is no own, that is, no propriety [property], there is no injustice."

--Thomas Hobbes, Leviathan, (1651)

"[The State of] Qi was once planning an attack on Lu. Lu dispatched Zigong to dissuade the men of Qi, but they replied: 'Your words are eloquent enough. But what we want is territory, and that is the one thing you have not mentioned.'"

--Han Fei, The Five Vermin, (mid-3rd century B.C.)

There are at present two prevailing and opposing views on the best means by which the intensifying territorial disputes over the South China Sea may ultimately be resolved. These are, on one side, the position of the United States and its regional allies that sovereignty claims should be shelved in favor of the adjudication (1) of law of the sea issues under the 1982 UN Convention on the Law of the Sea (UNCLOS), usually accompanied by the general directive to promote peaceful joint development of the territories and to avoid disruption to a (presumably) non-sovereign status quo. (2) On the other side is the Chinese position that sovereignty claims--the idea that some state must own the territory in controversy and that this question is conceptually antecedent to any generalized international legal adjudication of rights or duties--should be resolved via bilateral negotiations between the various parties to the dispute. (3) The two sides have so far shown scant indication of compromise on this fundamental dissensus. (4)

This Article proposes a third alternative. Because the issue of territorial sovereignty is, in fact, central to the ultimate disposition of some legal issues in controversy (and is, as the Chinese side points out, outside of the scope of UNCLOS), there must be some legal process for the resolution of this question that is recognized by the parties to the dispute. At the same time, in order to ensure results that are viewed as legitimate by all parties, that give an adequate legal hearing to all relevant claims, and that ultimately promote peaceful cooperation between regional states and their increasing integration into a community bound by international law norms, bilateral negotiations should serve at most a supplementary role to legal adjudication.

Instead, an approach is called for by means of which the parties can at least eventually reach a practicable solution to the key issues in dispute, while agreeing on a set of procedural legal "rules fixed and announced beforehand" (5) rather than letting political exigencies or realpolitik considerations decide the issue of ownership (or, just as problematically, deciding unilaterally that the sovereignty issue must be ignored, a position that some see emerging in recent U.S. statements). (6) Assuming that claimants are not likely to simply abandon all territorial claims sans argument, at stake in finding a legal means to adjudicate these claims is the question as to whether such disputes can be "bracketed" within the framework of legal institutions. (7)

Complicating the effort to find such a solution is the fact that there are two different bodies of "international law" that apply to various issues under dispute: the law of sovereignty and the law of the sea. (8) Indeed, one virtue claimed for the ongoing UNCLOS arbitration, Philippines v. China, (9) is that it can serve to clarify and unite on a set of shared bases the positions of all those seeking to oppose China's "nine-dashed line" (or "U-shaped line") -based claims. (10) This goal, some assert, can be achieved by using several relatively well-defined and at least formally agreed-upon principles of maritime law, such as the size limits of continental shelf-based claims or Exclusive Economic Zones, to replace messy, volatile, and sometimes conceptually unclear arguments over territorial sovereignty. (11) In the words of one advocate of this model of maritime lawfare,

by emphasizing just the law of the sea in its attempts to promote a peaceful settlement, Washington can accomplish two objectives: first, it can improve the relationship of the smaller claimants with each other, paving the way to a more functional coalition against China, and second, it can illegitimate (sic) Beijing's attempt to dominate the entire South China Sea. (12) Yet, as noted, the South China Sea dispute sits uneasily within the framework of UNCLOS arbitration. Since the Philippines launched its case against China in 2013, (13) China has adopted a policy of "no accepting and no participating," due to its view that the Tribunal has no jurisdiction. (14) In large part, this position is based precisely on the argument that issues of territorial sovereignty--determining the legal ownership of specific territories, in this case, primarily the main island groups of the South China Sea--are both central to the dispute and outside the scope of UNCLOS. Indeed, the Tribunal has no power to rule on such questions, and the Philippines has admitted as much in its own submissions. (15) Nonetheless, it argued that there are a number of issues in dispute that UNCLOS can rule on that are separable from the issue of territorial sovereignty. (16)

The Tribunal ruled in November 2015 that it had jurisdiction to hear some of the Philippines' claims, while acknowledging its inability to consider the issues of sovereignty that lie outside its remit. (17) Yet, as will be argued below, this ruling leaves unaddressed, though it may well affect, the underlying basis for the entire dispute between the parties. This Article seeks both to help clarify the relative strengths of the Chinese and Philippine arguments on jurisdiction as well as the potential enforceability and relevance of the forthcoming judgment on the merits, and to propose an alternative legal mechanism to resolve at least some of the fundamental issues left out of the present arbitration. As this Article will argue below, an international Commission of Inquiry (COI) (18) could be set up collaboratively by claimant states to determine sovereignty over the disputed territories from France's assertion of its claims in 1933 through 1945, when Japan (which by then claimed control over the entirety of the South China Sea) recognized defeat in the Second World War. As will be explained, a successful and mutually-recognized determination of this kind would serve to greatly clarify the legal issues involved in determining present ownership...