What Happens if China Tries to Boycott UNCLOS Arbitration? A Japanese Guy Gets to Appoint the Tribunal

[I know that what this blog needs is yet another post on the China-Philippines UNCLOS Arbitration! We aim to please!]

Steve Groves of Heritage asks in the comments to my prior post: What happens if China simply refuses to show up at the arbitration? Can an arbitral tribunal even be formed to rule on jurisdiction?

This is something that I’ve wondered too, and then I realized Annex VII of UNCLOS appears to settle this issue as well.  The key provision is Article 3 of Annex VII. Under Art. 3(b), the initiating party appoints an arbitrator, which the Philippines has already done.  Then,

(c) The other party to the dispute shall, within 30 days of receipt of the notification referred to in article l of this Annex, appoint one member to be chosen preferably from the list, who may be its national. If the appointment is not made within that period, the party instituting the proceedings may, within two weeks of the expiration of that period, request that the appointment be made in accordance with subparagraph (e).

(Emphasis added.).  Turning to Subparagraph (e):

(e) Unless the parties agree that any appointment under subparagraphs (c) and (d) be made by a person or a third State chosen by the parties, the President of the International Tribunal for the Law of the Sea shall make the necessary appointments. …

(Emphasis added). Essentially, this means the President of ITLOS can fill out the rest of the arbitral tribunal if China tries to boycott, by appointing the remaining four members.  As Craig Allen of the University of Washington pointed out to me in an email, the current President of ITLOS is Shunji Yanai, a well-respected diplomat and jurist.  That is to say, a well-respected Japanese diplomat and jurist.  I’ve met President Yanai briefly, and he is a very smart and well-accomplished guy.  But Japan is just not on China’s BFF list right now.  China’s Weibo Internet commenters might well just blow up if this happens.

Professor Allen suggests that the President of ITLOS might, before appointing arbitrators, consider the jurisdictional objection and refuse to appoint a tribunal. I think this is a plausible, but not the most natural reading of Annex VII, Art. 3.  Professor Allen also raises a good point: China’s best friend here might well be the United States, which has a strong interest in seeing an expansive reading of the Article 298 exemptions.

In any event, the few Annex VII arbitral tribunals that have been constituted have generally not hesitated to rule on their own jurisdiction.  See Barbados v. Trinidad, or Guyana v. Suriname. (For a full list, see here).  Even worse from China’s perspective, these Annex VII arbitral tribunals issued their jurisdictional decision at the same time as they issued the award on the merits.  They don’t have to do so, and they can bifurcate the proceedings to address jurisdiction first.  But they don’t have to.

Would one of the journalists forced to sit through Chinese Ministry of Foreign Affairs press briefings please ask the spokesman to address the arbitral tribunal question?  Or at least, ask them again? Will China play the arbitral tribunal game and appoint someone by February 21?  Or will they let President Yanai appoint the tribunal for them?   The 30-day clock is running.