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Debate Map: Disputes in the South and East China Seas

Last Updated: 25 July 2016 

The following index maps scholarly commentary on the international law aspects of the conflicts in and around the South China and East China Seas, including maritime boundary disputes, the question of sovereignty over the Senkaku/Diaoyu islands, China's recent announcement of an Air Defence Identification Zone, and the Philippines/China UNCLOS arbitration. It brings together primary documents with discussions in English-language legal blogs and a selection of journal articles.

Use this map to review scholarly arguments and to keep track of which issues have been covered and who has said what. For a broad range of online OUP materials on these issues please see the guide on our Home Page.

The use of 'South China Sea' and 'East China Sea' throughout this map does not imply any position as to the relevant countries' maritime claims.

I. Maritime boundary disputes – South China Sea

A) Official positions, submissions, and declarations

B) Analysis

(1) General Analyses of the South China Sea Claims

(2) Analyses of Specific Claims

(3) China's 9-dash line

(4) Freedom of navigation

II. Maritime boundary disputes – East China Sea

A) Official positions, submissions, and declarations

B) Analysis

C) Senkaku/Diaoyu sovereignty dispute

(1) Official positions, submissions, and declarations

(2) Analysis

D) China's Proclamation of an Air Defence Identification Zone (ADIZ)

(1) Official positions, submissions, and declarations

(2) Analysis

III. Philippines-China UNCLOS Arbitration

(A) Official positions, submissions, and Awards

(B) Analysis

IV. Use of Force Issues

I. Maritime boundary disputes – South China Sea

A) Official positions, submissions, and declarations

(i) 2002, ASEAN Declaration on the Conduct of Parties in the South China Sea

(ii) 18 June 2008, China and Japan's statement of consensus on joint development of the East China Sea

(iii) 3 May 2011, Vietnam's submission to the Commission on the Limits of the Continental Shelf

(iv) 3 May 2011, Vietnam and Malaysia's joint submission to the Commission on the Limits of the Continental Shelf

(v) 5 December 2014, US position on China’s claims in the South China Sea

(vi) 3 June 2015, statement by Chinese Foreign Ministry spokesperson on construction activities in the South China Sea

B) Analysis

(1) General Analyses of the South China Sea Claims

(i) 1995, Jonathan Charney in the American Journal of International Law(background article on boundary issues in the South and East China Seas, suggesting cooperative solutions)

(ii) 2002, Jianming Shen in the Chinese Journal of International Law (thorough overview of the history of Chinese claims in the South China Sea, from the perspective of a Chinese scholar)

(iii) 2003, Shicun Wu and Huaifeng Ren in the Chinese Journal of International Law (analysing in detail the background to the ASEAN Declaration and its implications)

(iv) 8 May 2009, Gillian Triggs on SSRN(giving an overview of disputes in the area and the relevant principles of maritime delimitation, and proposing 'sovereign neutral' joint development)

(v) 5 March 2012, M. Taylor Fravel at The Diplomat(commenting on a press conference in which a Chinese government spokesperson clarified its maritime claims)

(vi) 9 May 2013, Julian Ku at Opinio Juris (on articles in the Chinese press disputing Japan's sovereignty over Okinawa)

(vii) 27 June 2012, Benjamin Wittes at Lawfare(linking to Chinese slides from a MILOPS conference, illustrating its claims to sovereignty over the South China Sea islands), see also this follow-up post, on a sharp exchange between China and the Philippines at the 2013 conference.

(viii) 1 December 2013, Diane Desierto at EJIL Talk! (On ICJ Judge Xue's comments at the 2013 AsianSIL conference on China's position on settling the maritime disputes in the South China Sea and on the ADIZ, highlighting that it contradicts the ASEAN Declaration of Conduct)

(ix) 14 January 2014, Peter A. Dutton before the US House of Representatives' Foreign Affairs Committee (analysing China's strategic objectives in the South and East China Seas and setting out possible US policy responses - see also Julian Ku's response to Dutton's recommendation that the US ratify UNCLOS)

(x) 7 June 2014, Justice Antonio Carpio lecture on the history of China’s claims in the South China Sea (refuting China’s claims to sovereignty)

(xi) 15 July 2015, J. Ashley Roach at ASIL Insights (analysing the legal issues surrounding China’s construction activities on the Spratly islands)

(xii) 15 July 2016, Raul ‘Pete’ Pedrozo at Lawfare (giving an overview of China’s acts over the past two decades which are claimed to violate the UNCLOS Convention)

See also the weekly Water Wars updates on Lawfare

(2) Analyses of Specific Claims

(i) 1978, Choon-ho Park in Ocean Development & International Law(focusing on the territorial dispute over the Spratly Islands) [note: link doesn't seem to work, but article can be found by a search on the publisher's website]

(ii) 1994, Lee G. Cordner in Ocean Development & International Law (also focusing on the Spratly Islands) [note: link doesn't seem to work, but article can be found by a search on the publisher's website]

(iii) 7 March 2012 Robert Beckman at RSIS Commentaries (considers whether Philippine plans for exploration off Palawan is really within a disputed area)

(iv) 2013 Lowell Bautista in the Journal of East Asia 6 (2) (considers the Philippines' claim to the Scarborough Shoal)

(v) 23 May 2014, Douglas Guilfoyle at EJILTalk! (on the disputed Paracel islands, recommending that a disputing party asks an UNCLOS arbitration panel what counts as an island)

(3) China's 9-dash line

(i) 2011 Thang Nguyen-Dang and Hong Thao Nguyen in Ocean Development & International Law, Vol. 43, No. 1 (analysis of China and Philippines' exchange of notes verbales and comparing them to previous statements of their positions)

(ii) 2013 Zhiguo Gao and Bing Bing Jia in the American Journal of International Law 107/1 (article-length review of China's 9-dash line)

(iii) 4 June 2013, Julian Ku at Opinio Juris (arguing that China needs to clarify what it bases its nine-dash line on and that it undermines more plausible sovereignty claims over particular South China Sea islands)

(iv) 5 February 2014, Daniel R. Russel before the US House of Representative Committee on Foreign Affairs Subcommittee on Asia and the Pacific (stating that the US rejects China's use of the 9-dash line to support its maritime claims)

(4) Freedom of navigation

(i) US’ annual freedom of navigation reports (listing all US activities conducted in a given year to reserve its freedom of navigation)

(ii) 15 October 2015, Julian Ku at Opinio Juris (on the US’ and China’s different definitions of the freedom of navigation)

II. Maritime boundary disputes – East China Sea

A) Official positions, submissions, and declarations

(i) 11 June 2012, Japan's submission to the Commission on the Limits of the Continental Shelf

(ii) 14 December 2012, China's submission to the Commission on the Limits of the Continental Shelf (see also the subsequent communications made by China)

(iii) 28 December 2012, Japan's Note Verbale on China's submission to the Commission on the Limits of the Continental Shelf

(iv) 28 August 2013, South Korea's submission to the Commission on the Limits of the Continental Shelf

B) Analysis

(i) 1971, Donald R. Allen and Patrick H. Mitchell in the Oregon Law Review (historical analysis of competing maritime claims in the East China Sea and their legal foundations)

(ii) 2010, Jianjun Gao in the Chinese Journal of International Law (detailed examination of the legal and geological basis of China's, Japan's, and South Korea's maritime claims in the East China Sea, focusing on the Okinawa Trough)

(iii) 17 December 2012, Duncan Hollis at Opinio Juris (on China's submission to the CLCS, expressing hope that legal argumentation rather than political wrangling will help cool down the dispute)

(iv) 4 January 2013, Kirsten Boon at Opinio Juris (on China and South Korea's submissions to the Commission on the Limits of the Continental Shelf, arguing for submitting disputes in the region to the ICJ)

See also Peter Dutton's testimony discussed above.

C) Senkaku/Diaoyu sovereignty dispute

(1) Official positions, submissions, and declarations

(i) May 2013, overview of Japan's official position

(2) Analysis

(i) 2005, Steven Wei Su in Ocean Development & International Law (analysing the dispute over the islands and putting it in its legal context) [note: link doesn't seem to work, but article can be found by a search on the publisher's website]

(ii) July 2012, Zuxing Zhang in the Asian Journal of International Law (arguing that 'acquisitive prescription' should be replaced by 'historical title' and 'tacit agreement' as ways of acquiring territory under international law, and examining the impact of this approach on the Senkaku/Diaoyu dispute)

(iii) 1 June 2013, Ryan Scoville on SSRN (setting out the case in favour of Japanese sovereignty over the islands)

(iv) 7 December 2013, Michael Kelly at The Jurist (arguing that China might use the Senkaku/Diaoyu Islands dispute to drive a grand bargain with Japan in the South China Sea)

(v) 22 January 2014 Ryan Scoville at his blog (looks at what the history of the drafting of the Treaty Shimononseki can tell us about sovereignty over Senkaku/Diaoyu)

D) China's Proclamation of an Air Defence Identification Zone (ADIZ)

(1) Official positions, submissions, and declarations

(i) China's announcement of ADIZ

(2) Analysis

(i) 2009, Peter Dutton in the American Journal of International Law (thorough overview of the law and state practice on ADIZs)

(ii) 24 November 2013, Julian Ku at Opinio Juris (arguing that China's ADIZ does not violate international law – see also some of the comments disagreeing with this view)

(iii) 27 November 2013, Kenneth Anderson at The Volokh Conspiracy (detailed analysis of the ADIZ announcement and the US's response to it)

(iv) 30 November 2013, Zachary Keck at The Diplomat (arguing that China is using the ADIZ to bolster its sovereignty claims in the region, but taking its engagement with the international legal order as a positive sign)

(v) 4 December 2013, Shannon Tiezzi in The Diplomat (providing an overview of the different reasons given by the Chinese government for the ADIZ)

(vi) 8 December 2013, Julian Ku at Opinio Juris (discussing the US response to China's ADIZ and arguing that it is hamstrung by its decision not to take a position on the question of who has sovereignty over the Senkaku/Diaoyu Islands)

See also Diane Desierto's post on EJIL Talk!, discussed above.

III. Philippines-China UNCLOS Arbitration

(A) Official positions, submissions, and Awards

(i) 22 January 2013, The Philippines' notification and statement of claims

(ii) 26 April 2013, Comments from Chinese Foreign Ministry Spokesperson

(iii) 7 December 2014, China’s Position Paper on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines

(iv) 29 October 2015, Arbitral Tribunal’s Award on Jurisdiction and Admissibility

(v) 30 October 2015, China’s response to Award on Jurisdiction and Admissibility

(vi) 12 July 2016, Arbitral Tribunal’s Award on the Merits of the Dispute

(vii) 12 July 2016, Statement by China’s Foreign Ministry on the Award

(B) Analysis

(1) Before the Award

(i) 22 January 2013, Dapo Akande at EJIL Talk! (discussing The Philippines' initiation of arbitration proceedings and setting out the jurisdictional problems that its claims are likely to run into)

(ii) 22 January 2013, Julian Ku at Opinio Juris (also commenting on the initiation of arbitration proceedings, arguing that this may make sense from a political perspective but that the UNCLOS panel is likely to deny jurisdiction – see also an earlier post here

(iii) 25 January 2013, Harry Roque at Harry Roque's Blog (explaining the decision to initiate arbitration from The Philippines' perspective)

(iv) 19 February 2013, Donald Clarke at Chinese Law Prof Blog (discussing China's decision not to participate in the UNCLOS arbitration, criticising China's reasons for rejecting the proceedings, and arguing that the impact of its walk-out on the arbitration will be limited)

(v) 19 February 2013, Julian Ku at Opinio Juris (also discussing China's decision not to participate in the UNCLOS arbitration and what this means for UNCLOS' dispute settlement system – see also Ku's post here, disagreeing that the walk-out has made the arbitration 'bizarre' and 'futile' and arguing that enforcement of any eventual decision would have been unlikely either way)

(vi) 26 April 2013, Julian Ku at Opinio Juris (discussing and criticising China's reasons for not participating in the arbitration)

(vii) 20 May 2013, Stefan Talmon in the Global Times (arguing that the arbitral tribunal should refuse jurisdiction, as The Philippines' claims either don't raise a dispute or relate to questions of sovereignty that are excluded from the UNCLOS dispute settlement process - see also Julian Ku at Opinio Juris, disagreeing with Talmon on the arbitration's jurisdictional obstacles and criticising China for boycotting the tribunal)

(viii) 28 August 2013, Luke Eric Peterson at Kluwer Arbitration Blog (giving an update on the progress of the arbitration and agreeing with Ku that the proceedings are not futile, even if chances for enforcement are slim)

(ix) 13 October 2013, Sean Mirski at Lawfare (setting out the political background to the arbitration and the US' position)

(x) 21 November 2013, Harry Roque at Harry Roque's Blog (summarizing ICJ Judge Xue's comments on the arbitration at the 2013 AsianSIL conference – see also Julian Ku here sharing his own notes of Judge Xue's statement and questioning some of her points)

(xi) 2014 Stefan Talmon from The South China Sea Arbitration: A Chinese Perspective (free SSRN version) (lengthy analysis of whether China has a case to answer and concludes that the arbitral tribunal should conclude that it does not have jurisdiction)

(xii) 29 January 2015 and 30 January 2015, Diane Desierto at EJILTalk! (analysing China’s claims in its December 2014 Position Paper

(2) After the Award

(i) 12 July 2016, Robert Williams at Lawfare (summarizing the Award and giving an overview of the Tribunal’s most important rulings) (see also Julian Ku’s immediate reaction to the Award on the same blog)

(ii) 12 July 2016, Diane Desierto at EJILTalk! (giving an immediate impression of the Award and its impact)

(iii) 12 July 2016, Douglas Guilfoyle at EJILTalk! (focusing on criticism of the Tribunal’s jurisdiction, its treatment of China’s claimed historic rights, and artificial island building)

(iv) 12 July 2016, Julian Ku at Opinio Juris (on the Award’s – likely positive – impact on the UNCLOS dispute settlement system)

(v) 12 July 2016, timeline of the dispute and its background on Business Insider UK

(vi) 13 July 2016, Julian Ku at Lawfare (on the implications of the Award for the US’ policy of freedom of navigation operations in the South China Sea; see also his 19 July post on the prospects of using the Award to ‘shame’ China through diplomacy)

(vii) July 2016, Jacques deLisle at the Foreign Policy Research Institute (on the political ramifications of the Award and its risks for international law)

(viii) 14 July 2016, Douglas Guilfoyle on Late Night Live (radio interview about the Award)

(ix) 14 July 2016, Liu Haiyang at Opinio Juris (defending China’s position and criticising the Award)

(x) 14 July 2016, Julian Ku at Foreign Policy (on the unanimous rejection of the Award by Chinese scholars)

(xi) 18 July 2016, Ryan Scoville at Lawfare (on the implications of the Tribunal’s finding that Taiping Island is a rock for the Senkaku islands dispute between China and Japan)

(xii) 21 July 2016, Joshua Paine at EJILTalk! (analysing the Tribunal’s treatment of the environmental aspects of the dispute) 

IV. Use of Force Issues

(i) 2011, Erik Franckx in the Chinese Journal of International Law (analysing the opposing views of the US and China on navigational rights in the EEZ, following a number of clashes in the South China Sea in 2009)

(ii) 21 September 2012, Julian Ku at Opinio Juris (arguing that, under the US-Japan Treaty of Mutual Cooperation and Security, the US could be obliged to defend Japan against Chinese military operations in the context of the Senkaku/Diaoyu islands – see also the comments)

 

Disclaimer: Please note that inclusion in or exclusion from this index does not indicate approval or disapproval of views or reflect a judgement on the quality of argument.

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