South China Sea

Indonesia Hints at South China Sea Litigation

By David Bosco
Thursday, November 12, 2015, 3:25 PM

Could we be witnessing a legal cascade in the South China Sea? Most states with claims have thus far eschewed formal legal challenges to China, but that could be changing. In the wake of the Philippines' legal victory against China (if only on jurisdictional questions), Indonesia's security chief has suggested that his country might also challenge Chinese claims. Via Reuters:

Indonesia could take China before an international court if Beijing's claim to the majority of the South China Sea and part of Indonesian territory is not resolved through dialogue, Indonesia's security chief said on Wednesday.

Beijing's claim to almost the entire South China Sea is shown on Chinese maps with a nine-dash line that stretches deep into the maritime heart of Southeast Asia, including parts of the Indonesian-held Natuna islands.

Oddly, the Indonesian official identified the International Criminal Court as the likely legal forum. If Indonesia does ultimately mount a challenge, it would almost certainly take the form of binding arbitration, which is the mechanism provided for in the UN Convention on the Law of the Sea (UNCLOS). And if Indonesia--and perhaps other claimants--move ahead, one question will be to what extent new arbitral tribunals will be influenced by the jursidictional decisions of the arbitrators in the Philippines case. Indonesia has signed some of the regional agreements that China argued precluded binding arbitration in the Philippines case. In its (informal) submissions, China relied in particular on a 2002 ASEAN declaration on the South China Sea. Beijing insists that this declaration requires signatories to resolve disputes through negotiation rather than adjudication. The arbitrators in the Philippines case had little patience for the argument, but China would no doubt want any future arbitrators to take a fresh look at its arguments.