25 Jan 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.
While not an expert on this particular process, this kind of default option is standard – otherwise stops arbotration in its tracks. China might not name an arbitrator and leave it to the Pres to name the coarbitrator. Assuming there are 4 chinese arbitrators on the list, the Pres would be well advised to name one of them on behalf of the Chinese. Hope though the Chinese choose someone and do not go down the default route.
I don’t think Article 3 could be read to allow the President of ITLOS to consider jurisdiction. The procedure is fairly straight forward. Either China appoints an arbitrator, or it fails to do so and the President of ITLOS appoints an arbitrator on China’s behalf. The arbitrator would likely come from the list referred to in Article 2, though this is not essential.
The tribunal could then proceed without Chinese involvement all the way to default judgment, by majority vote of the arbitral tribunal (Articles 8 and 9).
The final sentence of Article 9 indicates that it is for the tribunal to consider jurisdiction prior to default judgment, and I think it would be fair to read this as implying the tribunal generally determines jurisdiction (not the President of ITLOS). This would also be consistent with other past examples of Article VII arbitration.
I, for one, find this line of posts to be quite fascinating. Don’t apologize for them!
Standard for tribunal to have authority to decide its own jurisdiction at this level. It would be a surprise for it to be otherwise. Hope we can use arbitration to avoid or reduce the risk of armed conflict on this.
I suspect that the President being Japanese was part of the analysis of the Philippines in going forward. I am certain the Pres is aware of the tensions at a level us poor souls can barely fathom and will attempt a way to pick someone acceptable to the Chinese if it comes to that. This is about credibility of this dispute resolution process for him – whatever the nationalist feelings that animate everyone. To do otherwise would be a disgrace to the role he has been confided.
Typing this in. Greyhound bus station in Cleveland on my way to Gitmo. Amazing to be able to participate in a worldwide conversation from this seat. Maybe showing my age but still amazing. Keep it coming Julian as these disputes are my biggest worry sometimes as to a very hot war starting up. Have too many friends from all the countries and hope cooler heads can prevail.
Response…I’d like to share with your readers my views on the recent Philippine arbitral claim vs. China: http://harryroque.com/2013/01/25/understanding-our-unclos-arbitral-submission-2/
Something interesting to watch is when ITLOS will consider the Philippine filing as an actual “case”. So far there is no indication from scanning the ITLOS website that it is recognized as “Case No. 21” and there is no press release. Is it when the tribunal is constituted? When China (or the ITLOS president, as Julian points out) selects an arbitrator? Watch this space: http://www.itlos.org/index.php?id=35&L=0
China submitted on 25 August 2006, a written declaration
(Please find the link: http://treaties.un.org/pages/ViewDetailsIII.aspx?&src=TREATY&mtdsg_no=XXI~6&chapter=21&Temp=mtdsg3&lang=en#EndDec
to the UN Secretary-General which addressed that China does not accept any of the procedures provided for in Section 2 of Part XV of the Convention with respect to all the categories of disputes referred to in paragraph 1 (a) (b) and (c) of Article 298 of the Convention.
China will effect, through consultations, the delimitation of boundary of the maritime jurisdiction with the states with coasts opposite or adjacent to China respectively on the basis of international law and in accordance with the equitable principle.
Besides, the spokesman of the Ministry of Foreign Affairs has addressed in public many times of China’s consistent policy about the relevant issue.
Therefore, China will not play the arbitral tribunal game and there should be no tribunal established because of China’s former declaration and China’s current response.