Why China Will Ignore the UNCLOS Tribunal Judgment, and (Probably) Get Away With It

by Julian Ku

U.S. commentary has largely celebrated the UNCLOS Arbitral Tribunal’s award finding it has jurisdiction to consider the merits on many of the Philippines’ South China Sea related claims against China.   Perhaps the most positive note is found in Jill Goldenziel’s essay at the Diplomat entitled, “International Law Is the Real Threat to China in the South China Sea.”

But just by getting this far, the case already has important implications for the use of international courts to manage and resolve international conflicts. International law has become a weapon of the weak. Countries that cannot afford or have no chance of winning military conflicts have increasingly turned to courts to resolve territorial, economic, and human rights claims. Other countries are closely watching the Philippines as they consider similar options for asserting their own rights in the South China Sea and beyond. Vietnam, in particular, is considering filing a similar lawsuit. At the very least, the case may force China to engage in talks with its neighbors to resolve competing claims to the South China Sea. By doing so, China can save face and claim to resolve the disputes on its own terms. If law can bring China to its knees, cases involving the South China Sea will have ripple effects far beyond its shores.

For my own part, I am much more skeptical about the benefits of an arbitral award for the Philippines. As I argued last year, there is little reason to think China will suffer serious reputational consequences for defying the UNCLOS Arbitral Tribunal’s award on jurisdiction or on the merits. Why?

Because other cases involving “weak” nations using international courts against “strong” nations shows that “strong” nations suffer few consequences and rarely change behavior significantly. The most similar case to Philippines v. China is probably the 1986 ICJ judgment in Nicaragua v. United States. That case (also brought by the Philippines’ current lawyer Paul Reichler) resulted in the U.S. withdrawing from the compulsory jurisdiction of the ICJ, not showing up for the merits argument, and ignoring the ICJ’s final judgment on the merits in that case. While the U.S. suffered some negative votes in the General Assembly and had to veto several Security Council resolutions, it is hard to argue that the U.S. “complied” with the ICJ judgment as a result of the reputational costs it suffered by walking away. The U.S. never paid the compensation the ICJ held that it owed, and it stopped mining Nicaraguan harbors only years later.

Russia has also recently demonstrated the ability of a “Strong” state to ignore an international court ruling. After detaining a Dutch-flagged Greenpeace vessel and its crew in 2013, Russia faced a provisional measures proceeding in the International Tribunal for the Law of the Sea. That tribunal ordered Russia to “promptly release” the vessel upon the posting of a bond and to release the crew as well.   Russia did not show up for the argument in court, and simply ignored the ITLOS order as well as a subsequent UNCLOS arbitral award.

Perhaps the Philippines will win some sort of leverage over China down the road by using a favorable award as a bargaining chip with China. But in the short-term, the Philippines has enraged China and has also led China to denounce (for the first time) the UNCLOS arbitral tribunal itself. It would not be impossible to imagine China announcing a withdrawal from UNCLOS (just to avoid the dispute settlement provisions) and simply adhering to UNCLOS as customary international law. That result will not be great for China, but I have a hard time seeing how it helps the Philippines either.

http://opiniojuris.org/2015/11/04/china-faces-its-nicaragua-v-united-states-moment/

14 Responses

  1. Ignoring the ruling of an international tribunal is nothing new. That in fact is the inherent shortcoming of international law. Unless the international community is able to inflict military or economic costs, it is unlikely that tribunal rulings will be heeded.

  2. Look at this way. The Tribunal will determine the legal status of the maritime features in the SCS and thus determine the maritime zone they would be entitled to. The beneficery of this determination would be mostly the US. If the Tribunal says that they are low tide elevations, the US will be the one that eager to enforce it, by freely approching the Misschief Reef.

  3. It’s good to be a great power.

  4. Julian,

    All points well taken. But the world has come a long way since Nicaragua in terms of the importance of international law. Even the U.S. can’t ignore it entirely. In its quest to rise and improve trade relations, China can’t ignore it either. Russia may not care as much as China needs to right now.

    The Philippines–and other states–can use any favorable rulings to help muster international pressure on China. The U.S. would welcome a favorable ruling to justify its own naval operations.I think the most likely outcome is, as I mentioned in the piece, that the ruling will force talks so that Beijing can claim to have resolved matters on its own terms. Lawsuits can force talks just as war does.

    Win or lose, any ruling has tremendous implications for the future of international law. First, an UNCLOS tribunal has now clarified that is has larger jurisdiction than previously thought. Second, international law has indeed become a weapon of the weak — look at other cases by Reichler and his firm in particular. Smaller, less powerful states will look at the Philippines’ case as a model to gain future leverage against the powerful. And still more.

    — JIG

  5. Julian: I recall that the U.S. paid $ to the new regime in Nicaragua.

  6. The author seems convinced China will lose in the cased filed by the Philippines. The penalty or award, if any and if ignored by China, will only multiply the weight of the public shaming China will suffer for all its violations in the West Philippine Sea.

  7. International Law, all said and done, is weak due to lack of an enforcement mechanism. Isolation, pressure and other sanctions may work on smaller nations, not on the P-5, Germany and Japan.

  8. China will not ignore a negative PCA ruling. Instead she will jointly file with Taiwan ROC immediately to take the focus away from the ruling and the international community will now focus on the root of the problem which is the illegal occupation of the Spratlys by Vietnam, Philippines, Malaysia.

    Taiwan ROC will give China cover as she is the original 11 Dash Line claimant. The upcoming Xi-Ma meeting on Nov 7 will probably include a contingency plan to make a joint filing to UNCLOS to force Philippines, Vietnam, Malaysia to vacate the Spratlys. First China will have to sponsor Taiwan ROC to be an UNCLOS member to proceed.

    Briefly China/Taiwan will argue VN have no sovereignty because her Spratlys possession was a result of an internal transaction between the French colonist and Vietnam. The Spratlys is outside Vietnam’s 200 NM EEZ. Trespassers like France cannot pass title to Vietnam. She is not a permanent country there with historical title to lay claim and pass title along to another country.

    Philippines of course schemed to take the Spratlys right after her independence 4th July 1946, using Tomas Cloma as front and with nationalists like PH senator, VP, President Carlos Garcia and Marcos as main players culminating in illegal annexation of the Kalayaans in 1978. Tomas occupation of the Kalayaans was based on Manufactured Res Nullis, throwing away all evidence of ROC presence like flags, marker stones that was there on the islands become he came.

    Malaysia got her Spratlys from the tip by Tomas Cloma while hiding out in Labuan in exchange for safety from Marcos. Malaysia cannot claim based on Continental Shelf extension either as the Chinese claim is a Pre Existing Live Claim, preceding Malaysia’s creation in 1963, so China/Taiwan got it all covered.

    China/Taiwan should play this last legal card to finally drive away all these illegal occupiers of the Spratlys.

  9. China to sponsor Taiwan to be part of UNCLOS? hmmmmm..easier said than done.

    Most people forget that it is not about who owns these islands that is at stake but who owns the body of water that surrounds these islands.
    Even if Itu Aba can sustain life and the rest could not (Which is likely so) and granted its own EEZ, it cannot dominate Palawan’s EEZ facing the Philippines. Yes it can facing Vietnam up to Vietnam’s EEZ. Palawan has almost 500 NM of coastline whereas whereas Itu Aba is 1 NM. Therefore, my prediction is Itu Aba’s EEZ facing Palawan is at best 25 NM. It ain’t goin to be 200 NM.
    Now the economic repercussion is tremendous for PH if the PH wins this ruling and even looses all its islands it currently occupies.
    Why? #1 Nine Dash Line is declared illegal.
    Most of the Spratly chain’s water will be the PH EEZ.
    And the two most important economic gems that China truly covet is the Reed Bank and Palawan Passage which straddles the Nine Dash Line. That’s littered with oil and gas from Northern Palawan all the way to Sarawak.
    All the China Coast Guard and PLA Navy will have to stop harassing the drilling and fishing of this body of water. The islands does not hold the untold billions if not trillions of potential oil and gas. It is the sea.Those islands become mere isolated posts with 12 mile territorial limit for a few but almost all will have none except Itu Aba.
    Of course, if the knucklehead starts behaving militarily it will be a different story but the free and sane world will not allow it.

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