So How is China Reacting to the Philippines Arbitration Submission? Not Very Well

China has not been quiet in reacting to the Philippines filing Sunday of its memorial in the UNCLOS South China Sea arbitration.  In addition to the foreign ministry’s remarks, the People’s Daily has released a full-scale defense of China’s legal and policy position (recently translated here). It is the longest official (well, close-to-official) statement of China’s legal position on the arbitration as I’ve seen anywhere. The heart of China’s argument is that this whole Philippines dispute is about sovereignty over the Nansha Islands, parts of which the Philippines is illegally occupying.  Because this is about sovereignty, and because China excluded maritime and territorial disputes from UNCLOS arbitral jurisdiction in its 2006 declaration, it is the Philippines (and not China) that is violating international law by filing the arbitration claim. Here are a couple of legal arguments or claims in the commentary that jumped out at me.

As is known to all, the islands in the South China Sea, including the Nansha Islands, have been China’s territory since ancient times. After the end of World War II, acting in accordance with a series of postwar international documents, the Chinese government recovered these islands and reefs from the Japanese aggressors in 1946. For a long period of time after WWII, countries, including the Philippines, all recognized or raised no objection to China’s sovereignty over the islands and reefs in the South China Sea.

Now there is something that is true in this statement, but there is also much that is hotly disputed. While it is true that the defeat of Japan meant all territory conquered by Japan from China reverted to China, what exactly was conquered by Japan from China remains very hotly disputed. The Japanese, for instance, do not believe the Senkaku/Diaoyu Islands were taken from China in the 19th century wars,which is why they don’t feel that they have to return them now.  Similarly, while Japan occupied the Nansha Islands during the war, it was far from clear that China controlled or owned those islands prior to the Japanese occupation.  Indeed, it is hardly “known to all” that the islands in the South China Sea have been Chinese territory since ancient times.

The essay then takes direct aim at the use of the arbitration mechanism here.

The Philippines has gone out of its way to try to drag China into the arbitration process. Taking advantage of the deficiencies of relevant UNCLOS mechanisms, it has tried to manipulate the composition of the Arbitral Tribunal and the Rules of Procedure in an attempt to make things difficult for China. By unilaterally filing an international arbitration on the South China Sea disputes, the Philippines has not only violated international law including UNCLOS, but also denied the basic historical facts. It has both gone against international justice and breached the basic norms governing international relations. The Chinese government’s position of neither accepting nor participating in the related arbitration is both justified and based on solid legal ground.

I find this statement way over the top.  There is no evidence the Philippines has tried to manipulate the composition of the Arbitral Tribunal. China never even nominated any arbiter even though it had a right to nominate two. Moreover, when a country files an arbitration claim, it has not “violated international law” if the tribunal later rules that it has no jurisdiction to hear the claim.  Nor does such an action violate “international justice” or breach “basic norms governing international relations.”  While it is true that China has every right to not participate in the arbitration, it is also bound by UNCLOS to accept whatever decision the arbitral tribunal makes about its own jurisdiction.

Put another way, neither the Philippines nor China has violated any international laws yet. China does not have to appear, but its stated intention to refuse to implement any order by the tribunal would constitute a plain violation of UNCLOS.  At that point, it would be China, not the Philippines, that would have violated the treaty obligation.

It may not come to that. China does have a reasonable argument that the tribunal lacks jurisdiction, even if it is only making it through essays and foreign ministry press statements like this one.

No matter how the Philippine memorial is packaged, the direct cause of the dispute between China and the Philippines is the latter’s illegal occupation of some of China’s islands and reefs in the South China Sea. At the heart of the matter are the disputes between the two sides on the sovereignty over islands and reefs, and delimitation of maritime boundaries. Yet disputes such as these have already been excluded from arbitration procedures through a declaration made by China in 2006 pursuant to the UN Convention on the Law of the Sea(UNCLOS). In this context, China’s rejection of the Philippines’ submission for arbitration is solidly based on international law, and China’s lawful rights as a party to UNCLOS should be truly respected.

This is the crux of China’s position on jurisdiction, and I think that (as elaborated by Prof. Talmon recently), there is indeed a decent foundation to this argument.  It would have been better of China had actually explained its position.  But it is true that it is hard to separate the underlying sovereignty disputes from the claims made by the Philippines.  Putting aside the Nine Dash Line, which is a different type of claim in my view, many of the different claims raised by the Philippines really could be explained simply as sovereignty disputes.

Having said all that, the People’s Daily editorial doesn’t mention the elephant in the room: China’s controversial Nine Dash Line claim that encompasses most of the South China Sea.  Neither the editorial nor the foreign ministry mentions the Nine Dash Line or provides any defense of it on the merits or even for why it should not be included in the jurisdiction of the tribunal.  This omission is telling. If China did not have the Nine Dash Line claim, both its legal and political position in the South China Sea, would be much stronger.  But as long as China maintains this claim, it risks serious blowback in the region.