China
that per UNCLOS, the international arbitration panel did not have jurisdiction because the issues affected its sovereignty, maritime boundary delimitations and military activities. It could try to change international law to be more favorable to it.
Borrowing from the US playbook, it could try to persuade like-minded countries to issue a joint statement of their interpretation of the Convention that broadens the definition of exceptions to compulsory arbitration.
If China could claim exclusive economic zones from high-tide features that it occupies it could legitimately claim a good portion of the area that falls within its historic “nine dash line” claim. But the panel ruled that none of the Spratly features are islands entitled to a 200nm EEZ and continental shelf but just rocks that can only generate a 12nm territorial sea.
China might try to forge a multinational position opposing the part of the arbitration panel’s decision that only features that have a history of a self-sustaining indigenous population are legal islands generating EEZs.
Although technically this decision applies only to China and the Philippines, it does set a precedent. But the US and many other countries around the world violate it.
For the US this includes its claim to EEZs and continental shelves from some of the uninhabited northwestern Hawaiian Islands. The US also claims the same from features in the Pacific that are likely only legal rocks including Midway, Howland, Baker, Johnston, Jarvis, and others.
To bring their claims into accordance with this reasoning and precedent, countries must rescind them, or their opponents must file a complaint under UNCLOS and have it arbitrated. But as China should point out, the US – which has not ratified UNCLOS – cannot be brought to arbitration under the Convention’s dispute-settlement provisions.
In the face of US criticism, China should emphasize its position that is not a threat to freedom of commercial navigation in the South China Sea and that the US military is self-serving and disingenuous when it says it is there to combat that threat. China has not hindered freedom of commercial navigation and is unlikely to do so in peacetime.
It does oppose and protest provocative US intelligence probes in its near waters. But the US conflates freedom of commercial navigation with freedom of navigation for its warships to intimidate and its intelligence vessels and aircraft to spy.
As Beijing should point out, unlike Malaysia and Thailand, China does not ban all foreign military activities in its EEZ without its permission. It does object to what it believes are US practices that are not for peaceful purposes, endanger the environment or constitute marine scientific research without its permission.
As for allegations of bullying, it should point out that the US bullies it and others with its freedom-of-navigation operations with warships and warplanes challenging their claims. It should call on the US to confine its opposition to diplomatic protest that is more consonant with the UN Charter prohibition on the threat to use force.
