Will Today’s Blockbuster South China Sea Award Save or Destroy UNCLOS Dispute Settlement?

by Julian Ku

I have been mildly obsessed with the dispute between the Philippines and China for over three years now. It touches on so many areas of my research interest: international courts, China, and the UN Convention of the Law of the Sea. So I am almost sad that the dispute, at least for legal purposes, finally ended today with the arbitral tribunal’s sweeping award in favor of the Philippines.

Since the beginning of the arbitration process, I have wondered what the impact of China’s boycott would be on the future viability of the UNCLOS system of dispute settlement. For the first two years of the dispute, I was skeptical that China would suffer any meaningful damage from defying the UNCLOS arbitral system. Thus, I wondered if, combined with Russia’s almost cavalier defiance of an ITLOS proceeding involving Greenpeace, the end result in this process would be a toothless UNCLOS dispute settlement process of little value or significance. This was one of the reasons I sharply criticized the Philippines for adopting a fruitless “lawfare” strategy.

Time will tell, but early reviews point to me being wrong. China is much more vulnerable to “shamefare” than I had imagined. The evidence for China’s vulnerability lies, I think, in the extraordinary over-the-top global public relations campaign to denigrate and delegitimize the award before it was even issued. If China thought the award would have little impact, it would not have dragooned its diplomatic service, its state-run media, and even its civil society into a huge, sometimes nasty PR effort against the award.

Still, the game must run its course. The key is how other nations not named the Philippines or the U.S. react to the award. If most key nations, including China’s regional neighbors, follow the line set out by the U.S. and call upon China to comply with the award, then China’s isolation on this issue will be significant.   The G-7 is expected to follow this path, and it is possible that Vietnam, Malaysia, Singapore, and Indonesia will do so as well. If South Korea, Australia, and India can also be brought on board, then China will have suffered a diplomatic as well as a legal defeat. Why? Because any aggressive Chinese action to respond to the award, such as by militarizing its artificial islands or even building new ones, will be framed as a further violation of China’s international obligations. China will have its own mini-Crimea crisis, and it will be hard for it to gain legitimacy for its actions.

On the other hand, no matter how many government press releases denounce China, it is hard to imagine China ever complying with the award. It can’t, even if it wanted to, since it has locked itself into a rigid public position against the award in front of the world and its own people. So the arbitral award will go unenforced and unimplemented for the foreseeable future. No matter how you slice it, an unenforced award is not a sign of a strong and effective legal system. UNCLOS dispute settlement can be ignored, not without cost, but certainly it can be ignored.

On balance, however, the UNCLOS system seems to have been strengthened by today’s ruling. The U.S. and other key countries seem to have rallied in support of it, and the tribunal’s findings seem to carry a fair amount of credibility with most governments. Indeed, the U.S. now seems to endorse the UNCLOS dispute settlement system with more vigor than one might expect for a non-party. It seems that UNCLOS dispute settlement will survive in a post-Philippines v. China world after all.

http://opiniojuris.org/2016/07/12/will-todays-blockbuster-award-save-or-destroy-unclos-dispute-settlement/

6 Responses

  1. No matter how you slice it, an unenforced award is not a sign of a strong and effective legal system.

    I don’t know — Argentina failed to comply with its ICSID awards until it did. There are a lot of awards that are difficult to enforce at the U.S. domestic level as well.

    This is a highly contentious dispute and it makes sense for a litigant to try to resist enforcement. Whether that litigant’s position will remain the same a decade or two from now, who can say.

    I think the wrong choice for China was not participating in the proceeding. They could have did no worse (and could have done a lot better!), and they could still run a PR campaign against the decision as biased, what-have-you. And they could have said the US is being high minded, while China at least participates.

    I don’t think it was the best litigation strategy.

  2. But then again, I don’t live in a system where there may be the most severe consequences for a bureaucrat appearing to lose such a sensitive case.

  3. I am not sure I share the opinion that the lack of (immediate) enforcement is problematic. Sure the Philippines and other states hoped for a settlement of the situation. But they cannot have ever thought that this award alone would solve all their problems.

    I find it curious that we worry about whether the UNCLOS dispute settlement system survives – but the best way of ensuring it survives is for states not to use it? I think the Philippines made the correct choice. They used a system provided for this purpose. If the system does not work, then it will naturally – and correctly – fail to be used in the future. I will not shed any tears for it in that case.

    However, I also think that focusing on whether the award “works” to solve the situation is focusing on the wrong thing. That was never an immediate realistic goal. But having a binding award on the issue changes the legal position on the situation (which was not in much doubt before, but is now definitive). This has a huge impact. For example, what if China wishes to bar fishermen or resources extraction, yet it conducts its own operations there? How will other states accept those exported goods? How will Chinese airlines be able to safely fly over the region? Even taking an extreme example – if Chinese military positions there were attacked, would any state consider it a 2(4) violation? The list of problems goes on.

    We lawyers sometimes give in the IR people and seem to accept their argument that the legal position of a situation is not particularly significant outside of pure politics. It is, and we should not shy away from that.

  4. Response…Is the outcome not likely to be that International Law is no more than an illusion created by lawyers? Sadly, there is no Rule of Law, only a Rule of Coercive Power.

  5. Think of the PCA judges as tainted jurors. They are exposed 24/7 for years to soundbites unfavorable to China. They should have recused themselves especially with regard to the Nine Dash Line ruling. Since it is a fact that they are actually tainted jurors, their verdict on the Nine Dash Line which is most consequential have no validity even though it seems to carry weight as it is one made by the esteemed judges of the PCA but wait, they are tainted, so how can their verdict carry any weight?

    Furthermore, they should have known their institutions are created from a political process that produce the imperfect UNCLOS treaty. Like many treaties, the devil is in the details and frequently it is the silent aspect, the lack of clarity that allow the other party to have wiggle room to interpret as she prefer. This is why China want to preempt this loophole mischief by PH etc by notifying UNCLOS about six years before PH lawsuit she won’t allow UN tribunal arbitration and yet this PCA body find it within her right to arbitrate. How silly are these judges! Do they live in a real world or a cloistered world behind closed doors in the Hague only?

  6. please show some guts. you are basically looking at other’s reactions to follow. using China’s over reaction to justify award is hilarious. Are you really a law professor?

    you can kiss this award goodbye now. the more you shame it, the harder China’s position will be. This is how proud people (or face loving) do things. Do you even have common sense to you make your own judgement?

    You are basically out of your element. you study law, not geo politics, apparently you are not good at this.

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