Will China Participate in the UNCLOS Arbitration with the Philippines?
China’s initial reaction to the Philippines’ decision yesterday to file an arbitration claim has been to stick to its guns. From the BBC:
On Wednesday, Chinese foreign ministry spokesman Hong Lei told journalists that China has “indisputable sovereignty over the South China Sea islands and adjacent waters, which has abundant historical and legal grounds”.
“The key and root of the dispute over the South China Sea between China and the Philippines is territorial disputes caused by the Philippines’ illegal occupation of some of the Chinese islets and atolls of the Spratly Islands,” he said.
He said China had been “consistently working towards resolving the disputes through dialogue and negotiations to defend Sino-Philippine relations and regional peace and stability”.
Some observers, quoted here by the VOA, have suggested that China will simply not participate in the UNCLOS arbitration. I think this makes sense from a strategic perspective, but it is hard to understand how that would work from a legal perspective.
As a legal matter, China has an obligation to participate in the UNCLOS arbitration by selecting an arbitrator, and then a schedule for the proceedings. It will then file a challenge to the UNCLOS arbitration tribunal’s jurisdiction (an argument I believe it has a good chance to win). If China simply doesn’t show up, then it would be in clear violation of its UNCLOS obligations.
China has an interesting choice here. It could participate in the arbitration, and if it loses on jurisdiction, simply withdraw and declare that it won’t abide by the tribunal’s decision. Or it could litigate to the merits, and then if it loses, simply refuse to comply with the arbitral tribunal’s award.
None of these potential arbitral results are really all that attractive, from China’s perspective. But defaulting on the arbitration is not all that attractive either. What China does here will tell us a lot about China’s commitment to its strategic goal of controlling the South China Sea, as well as its level of commitment to UNCLOS and international dispute resolution.