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