So How Is China Taking Its Loss at the UNCLOS Arbitral Tribunal? Not Well.

by Julian Ku

I have been curious to see how China would respond to yesterday’s UNCLOS Annex VII Arbitral Tribunal’s ruling finding it has jurisdiction to hear the Philippines South China Sea related claims.  Well, the Chinese Ministry of Foreign Affairs was ready with this blistering response:

Q: The Arbitral Tribunal established at the request of the Republic of the Philippines rendered the award on jurisdiction and admissibility of the South China Sea arbitration. What is China’s comment on that?

A: The Chinese government will not accept nor participate in the South China Sea arbitration unilaterally initiated by the Philippines. The Chinese Foreign Ministry has immediately released a statement to elaborate on China’s solemn position. The award is null and void, and has no binding effect on China. I would like to highlight three points.

First, China has indisputable sovereignty over the South China Sea Islands and the adjacent waters. As a sovereign state and a State Party to the UNCLOS, China is entitled to choose the means and procedures of dispute settlement of its own will. China has all along been committed to resolving disputes with its neighbors over territory and maritime jurisdiction through negotiations and consultations. China and the Philippines have repeatedly reaffirmed in bilateral documents since the 1990s and the Declaration on the Conduct of Parties in the South China Sea (DOC) in 2002 that they shall resolve relevant disputes through negotiations and consultations.

Second, disregarding that the essence of this arbitration case is territorial sovereignty and maritime delimitation and related matters, maliciously evading the declaration on optional exceptions made by China in 2006 under Article 298 of the UNCLOS, and negating the consensus between China and the Philippines on resolving relevant disputes through negotiations and consultations, the Philippines and the Arbitral Tribunal have abused relevant procedures, misrepresented the law and obstinately forced ahead with the arbitration, and as a result, have severely violated the legitimate rights that China enjoys as a State Party to the UNCLOS, completely deviated from the purposes and objectives of the UNCLOS, and eroded the integrity and authority of the UNCLOS.

Third, as a State Party to the UNCLOS, China firmly opposes the acts of abusing the compulsory procedures for dispute settlement under the UNCLOS, and calls upon all parties concerned to work together to safeguard the integrity and authority of the UNCLOS. China urges the Philippines to honor its own commitments, respect China’s rights under international law, change its course and return to the right track of resolving relevant disputes in the South China Sea through negotiations and consultations. That is the correct path with bright prospects.

The full MFA statement is here, and includes a swipe at the Philippines for using the “cloak of law as a political provocation.”  It is worth noting that China is still aiming most of its rhetorical fire at the Philippines, but it has also now directly criticized the Arbitral Tribunal for “abus[ing] relevant procedures [and] misrepresent[ing] the law….”  I also detect a slightly larger emphasis in China’s complaint about the “unilateral” nature of this arbitration.

I am also impressed by China’s willingness to just ignore the clear provisions of Article 288(4) of UNCLOS, and simply declare that the Tribunal’s ruling is “null and void” and has “no binding legal effect.”  At some point, someone in China is going to have to gin up a legal argument to get past UNCLOS’ clear language giving the Tribunal the power to determine questions of jurisdiction.  But for now, it looks like China is going to stick to its guns.

http://opiniojuris.org/2015/10/30/so-how-is-china-taking-its-loss-at-the-unclos-arbitral-tribunal-not-well/

15 Responses

  1. This does not bode well for an increased role of China on the international plane. But it is a typical response for a party that has lost on jurisdiction.
    Best,
    Ben

  2. Response…As in “Lord of the Rings”…then die…fool.

  3. China’s arrogance and contempt for international law, international institutions is coming to the fore. They have the temerity to declare that their rise is peaceful and benign. China understands only one language and that is the language of force and it respects any state which will not hesitate to use force against it. It is time the international community stood up to the Chinese bully.

  4. True kumar, but who will do it? Not the US (or NATO) under obama. The EU cannot. Reminds me of what nielmoller said:

    “First they came for the Socialists, and I did not speak out—
    Because I was not a Socialist.

    Then they came for the Trade Unionists, and I did not speak out—
    Because I was not a Trade Unionist.

    Then they came for the Jews, and I did not speak out—
    Because I was not a Jew.

    Then they came for me—and there was no one left to speak for me.”

    The world’s failure to stand up to China today will come home to roost in spades in the not too distant future, as happened with Hitler.

  5. From Aesops Fables

    A famished Fox saw some clusters of ripe black grapes hanging from a trellised vine. She resorted to all her tricks to get at them, but wearied herself in vain, for she could not reach them. At last she turned away, beguiling herself of her disappointment, and saying: “The Grapes are sour, and not ripe as I thought.”

  6. @Publics maximus
    The international community cannot adopt the “ostrich approach” to Chinese belligerence and aggrandizement. If allowed to get away, China will cut off the entire international sea route in the Far East by appropriating SCS, East China Sea and other portions of the Pacific. Obama may not be able to decisively confront China, but his successor will have to do it in alliance possible with Japan, Korea, India and Australia. China can effectively be countered in the Indian Ocean if it threatens shipping in the Far Eastern seas.

  7. Response…Indisputable sovereignty. I hope the Chinese gov’t will explain to their nationals what it means. Because every time I would ask my Chinese friends about the South China Sea and the 9 dash lines, the answers I would get are “as the name depicts it, the name China is there” and/or ” our ancestors were fishing in that sea since ancient times”. But with regards to the Law of the sea (UNCLOS)and historical records from the dynasties, most of them generally are unaware or speechless.
    Nevertheless I think the historical link is really weak.

  8. Happy Halloween to anyone!

  9. @Xiao At that rate, Persian Gulf should be owned by Iran, Arabian Sea by Saudi Arabia and India will be entitled to Bay of Bengal and Indian Ocean and so on. China is trying to be a bully in the region and its illegal actions need to be curbed.

  10. The chance for a dialogue to resolve the dispute amicably in South China Sea between China and Philippines slipped through the fingers.
    It happened during the standoff in Scarborough Shoal in June 2012. Philippines withdrew all its vessels in compliance with the agreed-upon deadline of withdrawal of vessels of both parties. On the other hand, China’s maritime vessels remained on the shoal. I think the Philippines did the right decision when it brought the case to the ICJ as it patiently exhausted all its effort in a diplomatic way.
    If ever China has basis to invoke any of Unclos rule for resolving maritime disputes through a bilateral dialogue, Philippines could simply tell the Court to disregard it by mentioning the incident that took place in Scarborough Shoal.

  11. Philippines has already shown an example how to solve a dispute in a peaceful way when it agreed to withdraw all its maritime vessels during the standoff at Scarborough Shoal.
    Philippines has done its part to have the dispute resolved in a amicable manner.

    UNCLOS 200nm requirement tells a lot how proximity matters in territorial claims. Philippines can prove that any day of the week.

    Philippines can also prove Exercise of Sovereignty to the islands. The warship that was deliberately grounded by Philippine soldiers on top of Ayungin Shoal decades ago is a proof of marking a territory. Thus, it is an exercise of sovereignty.
    One more proof of Exercise of Sovereignty Philippines can present in Court is, one of the islands in Spratley called Pag-Asa Island, has been a residence to several Filipino families for number of decades already.

    PHILIPPINES AS AN ARCHIPELAGIC STATE

    Being an archipelagic state, the chain of islets in the Spratley are part of Philippine Archipelago. No other State in the area of the sea that is being disputed has a status of an archipelagic state. UN officially approved Philippines as an archipelagic state in December 1982 along with 4 more other states. Isn’t that a very strong legal basis of legitimacy of claim?

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