Touchy, Touchy. What China’s Sensitivity About the Philippines Arbitration Reveals About the Strength of Its Legal Position

While I was on (my completely undeserved) vacation in California recently, I noticed more evidence that China’s government is becoming hyper-sensitive about criticism of its non-participation in the Philippines-China arbitration at the Hague.

First, a top U.S. government official stated at a conference on July 21 that, among other things, “…[W]hen they became parties to the Convention, both the Philippines and China agreed to its compulsory dispute settlement regime. Under this regime, the decision of the arbitral tribunal is legally binding on the parties to the dispute. It’s a treaty. In keeping with the rule of law, both the Philippines and China are obligated to abide by whatever decision may be rendered in the case, whether they like it or not. ”

On July 17, the New York Times published a rather bland staff editorial on the China-Philippines arbitration gently chiding China for failing to participate in that arbitral process.  Noting that China was likely to ignore the arbitration’s outcome, the NYT opined: “[China] should participate in the tribunal process if China wants to be recognized as a leader in a world that values the resolution of disputes within a legal framework.”

Both statements are pretty gentle, in my view, and Russel’s point about China’s obligation to abide by the arbitral tribunal’s rulings on jurisdiction is quite correct as a matter of law.  But it is China’s rather vociferous response that is more striking.

First, the Chinese Foreign Ministry sharply rejected Russel’s remarks.  Most curiously, it charged that the U.S. was, by “[a]ttempting to push forward the arbitration unilaterally initiated by the Philippines, [acting] like an ‘arbitrator outside the tribunal’, designating the direction for the arbitral tribunal established at the request of the Philippines.”  The spokesperson went on to say “This is inconsistent with the position the US side claims to uphold on issues concerning the South China Sea disputes.”

Second, the Chinese Ambassador to the U.S. wrote a letter to the editor of the NYT, calling its editorial “unfair.”  It also concluded that  “we do not believe that the arbitration court has jurisdiction, and as a member of United Nations Convention on the Law of the Sea, China is entitled to exclude any third-party compulsory settlement.”

I am sympathetic to China’s position that compulsory arbitration is not the way to go here, but as a legal matter, their views are hard to understand.  The UNCLOS does NOT give China the right to exclude any “third-party compulsory settlement.”  It does the opposite, and allows very limited exceptions to compulsory dispute resolution which may or may not apply here.  Furthermore, as numerous commentators have explained but which China continues to ignore, Article 288 of UNCLOS plainly gives the UNCLOS arbitral tribunal the final say on jurisdiction.  Russel was only repeating what is in the plain text of the treaty (UNCLOS) that China signed and ratified.

China’s sharply worded but legally incoherent responses are a sign that it is more nervous about the Philippines arbitration than it has let on in the past. China should just stop complaining about the arbitration and move on. It should have enough diplomatic, military, and political leverage to get past this.  It will get nowhere with its legal arguments.