The Lawfare over South China Sea: Exceptional Rules vs. General Rules

by Liu Haiyang

[Liu Haiyang is a research fellow at the Collaborative Innovation Center of South China Sea Studies, Nanjing University, China. This post was submitted to Opinio Juris under the auspices of the Chinese Initiative on International Law, an NGO with a mandate of promoting a better understanding of international law, particularly international criminal law and justice.]

The ad hoc Arbitral Tribunal established under the request of Philippines issued its final award on 12 July 2016. The lawfare over the legal effect of the verdicts of the Tribunal between China, on one side, and the United States with its allies and partners behind the case, on the other, will change focus from the legality of jurisdiction concerning the preliminary award to the legal consequences of the final award.

Although the U.S. is not a party to the present case, it seemed well prepared for the decision. Besides a significant increase of military presence and operations, with more warships and aircraft in the South China Sea, the U.S. and its allies have also loudly raised their voices to urge China to respect the final decisions of the said arbitral tribunal. The general tone of the criticisms suggests that China’s non-compliance with the final ruling would amount to non-compliance with international law and as well as a show of contempt for the international rule of law. For its part, China has also stepped up its media campaign to defend its position of non-recognition of any ruling by the tribunal through more diplomatic efforts and academic symposiums.

While both sides may hype up or downplay the legal consequences of the ruling, the heart of the question is the legal effect of the arbitral ruling in international law. To be more specific, is the award legally binding? How could the decision of an arbitral tribunal be implemented in international law? Is the non-recognition and non-implementation of the decision of an arbitral tribunal equivalent to non-compliance with international law? These are questions that need to be addressed.

In general, once an arbitral award has been made, it is final and binding upon the parties. That is the reason why the mainstream international understanding, misdirected by the U.S., is that the South China Sea arbitral award is binding upon China. However, there is an exception to the rule. In certain circumstances the award itself may be regarded as a nullity. It is fairly generally accepted under international law that the excess of power may be treated as a nullity. That’s exactly the position taken by China: that the arbitral tribunal exercised jurisdiction ultra vires and any of its decisions have no legal effects. In particular, the disputes between China and Philippines are either sovereignty disputes over islands, which are not governed by the UNCLOS, or disputes concerning maritime delimitation, which are excluded by China through a 2006 declaration based on Article 298 of the Convention. However, those exceptional rules are fully understood only by a small group of legal experts, and the general public only knows general rules. This put the U.S. in a good position to hype up the binding force of the award as a general rule, while China has an uphill battle to explain to the international community why the award has no legal effects as an exceptional rule. The U.S. and its allies will surely make full use of this advantage to put consistent international pressure on China to abide by the award.

Even supposing an arbitral award is binding on both parties, how to enforce it is another issue. In general, the success of arbitration depends on the goodwill between the parties in actually enforcing the award. Unlike in a domestic legal system, which has a central government to enforce the law, there is no such world government above states to enforce international law. The only exceptional case lies with the International Court of Justice (ICJ). Under article 94 of the UN Charter, one party may have recourse to the Security Council, which may enforce the decisions. However, the present case was decided by a 1982 UNCLOS Annex VII arbitral tribunal and the decision could in no way be enforced by third parties. Under article 12 of the UNCLOS Annex VII, “Any controversy which may arise between the parties to the dispute as regards the interpretation or manner of implementation of the award may be submitted by either party for decision to the arbitral tribunal which made the award.” Also, “[a]ny such controversy may be submitted to another court or tribunal under article 287 by agreement of all the parties to the dispute.”

Finally, does the arbitration award per se amount to international law, so that the non-recognition and non-implementation of the award is equivalent to non-compliance with international law? It is common sense among international lawyers that, under article 38 of the Statute of the ICJ, the sources of international law are composed of international treaties, international customs, and general principles of law and judicial decisions can only be utilized as a subsidiary means for the determination of rules of law rather than as an actual source of law. However, the U.S. may again make use of the gap between the understanding shared by small group of legal experts and the general public’s misunderstanding of international law so as to label China’s non-recognition of the award as non-compliance with international law.

In fact, neither the U.S. nor the Philippines has much credibility in this regard. The U.S. is the least qualified state to criticize China on this point, as the U.S. is the only country that used veto power in the UN Security Council to prevent the enforcement of the ICJ decision in Nicaragua case. Notwithstanding this clear defiance of international judicial decisions, many U.S. politicians and scholars are echoing the same voice that China would dishonor international rule of law in the sense that China does not recognize the award. Even the Philippines has been inconsistent in its respect for international arbitration, holding in the present case that a arbitral tribunal’s decision in Southern Bluefin Tuna case was wrongly decided. It is questionable whether the Philippines’ dishonoring of an arbitral decision amounts to non-compliance of international law. While it is not meant to make a tu quoque argument here, the position of the U.S. shows a clear sign of a double standard.

For its part, the best approach for China to win this lawfare is to tell its side of the story regarding the general rule versus exceptional rule. There is still a long way to go for China to pierce the legal veil covering American political trickery.

http://opiniojuris.org/2016/07/14/the-lawfare-over-south-china-sea-exceptional-rules-vs-general-rules/

13 Responses

  1. very professionally written.

    Julian Ku said since Chinese scholars either agree with government or silent, so they are not credible.

    But he and other experts in US also decidedly on one side, are they less credible too?

  2. Forgive me if I missed something here but:
    Although it cannot be denied that there is always the possibility the the tribunal acted ultra vires, there has been nothing to indicate so in this case, other than China’s assertion that it has.

    Highlighting the difference between the “general rule” and the “exceptional rule”, with the implication that the “exceptional rule” applies – without specifying the exceptional circumstances which would have to be met for the exception to to be made – would be as misleading as simply using the general rule, would it not?

  3. “It is fairly generally accepted under international law that the excess of power may be treated as a nullity. ”

    Exactly! This PCA court basically act like a bunch of self anointed legal dictator, issuing verdicts without external forces to check on their excesses. The composition of the judges were already suspect, none from Asia and they were selected by the chief Japanese judge, so something fishy here.So it looks like the verdict is preordained right from the get-go, with a unanimous decision against China, the verdict is even more suspicious as precooked against China.

    Further, these judges are human by nature and they may feel vengeful after being ‘insulted’ by China for not showing up and find a need to punish China for that. It looks like they want to tell China they hold her reputation at stake and this verdict can actually be read as a punishment verdict rather than one based on sound legal argument.

    Apparently these judges don’t understand or refuse to accept the fact that China have already notified UNCLOS at least five years before PH lawsuit she won’t be subjected to UN body arbitration. These judges under the Japanese chief judge Already broke UNCLOS Rules to begin with, so whatever verdict they issue is actually worthless.

    These judges should dare to be interviewed by the news media to be grilled why they think they have the legal authority to proceed in the first place. They are actually acting like little emperors with nobody to check on them, thus their excesses diminish the worthiness of the verdict they issue.

    So in actuality China did not lose once the truth is out. It is the PCA court that is irreparably damaged by these PCA judges misbehavior, issuing a verdict outside their jurisdiction and filled with vengeance though this will be hard to prove.

  4. Under Art 288(4) UNCLOS: In the event of a dispute as to whether a court or tribunal has jurisdiction, the matter shall be settled by decision of that court or tribunal.
    And in the Press Release of Arbitral Tribunal (p11): The Tribunal recalled that it is a fundamental principle of international law that bad faith is not presumed.
    So China and its scholars need to comply the Award.

  5. I”m disappointed that Opinio Juris agreed to publish this piece in its blog, it has no legal argument whatsoever and it’s a sad repetition of all the things that the Chinese government has been saying all along

    The author’s argument regarding the geneal rule and the exception makes no sense. He argued that exception stemmed from the fact that the tribunal acted in an ultra vires manner because the dispute was about sovereignty and maritime delimitation, but did now address the fact that the tribunal had already dealt with this question in both awards on jurisdiction and merits. If he still finds those arguments unconvincing, he should at least state the reasons. The ultra vires rhetoric is getting really old.

    And of course the award is only a subsidiary source of law, but that’s only relevant when you are talking about the sources of rights and obligations under international law. UNCLOS, a primary source of int’l law, mind you, does contain the obligation to comply with the decision, so if you don’t, then yes, non-compliance does amount to a violation of a treaty obligation. On the other hand, anyone who is vaguely familiar with the law of the sea will understand the importance of international jurisprudence in shaping the UNCLOS and the law of the sea as it stands today. One just has to look at the law on maritime delimitation for example. Dismissing the value of case law in international law is quite ignorant.

    It’s refreshing to see that the author acknowledged Article 12 of Annex VII. If China does not agree with the ruling, why not invoke that article? The option is right in front of you, why resort to this type of writing to denounce the Award?

  6. But Mr. Lan Ngugyen’s position is the same as the government of Vietnam’s and US’s. Is it automatically wrong?

    If you call an apple an apple a million times, it is still true and you still need to say it if people keep calling it an orange.

    It is fine if you want to censor Liu haiyan’s opinion, but be brave and say it out loud, that you don’t like different opinions and you want to censor it.

    To me, this court is a kangaroo court and the world is a better place if China rejects it. Also I dare you to challenge these facts: the judges are hand picked by Philippines and an anti China Japanese. they are also paid by Philippines. This is a test of your character. I bet you are going to fail.

    I see the “liberal” elitist arrogance and herd following mentally run amok. I don’t see any original ideas, other than the echo chamber of ganging up on China’s views.

  7. @talking points: I have no intention of getting into petty fight which involves accusations with no bases.
    But if you read my comment carefully you will see I expressed no view reagarding the fact that the author share the same view with the Chinese government. I also did not imply any censorship. I do, however, take issue with the fact that the author did not provide a single convincing legal argument to back up his claims as to what the general rule and the exception that he meant were. For example, at the risk of repeating myself here, in what way did he think the tribunal’s handling of the questions of sovereignty or the exceptions in Article 298 in the Award was ultra vires? A mere accusation from the (non-participating) repondent that the tribunal did not have jurisdiction is surely not how ultra vires is defined. You are perfectly entitled to call somethinh an orange if you wish, but you should have concrete evidence and arguments to prove, just calling it orange repeatedly will hardly convince anyone that it is. The lack of sound reasoning in the article was the main reason for my disappointment with Opinio Juris, which in my view, has been known for publishing posts with merits.

    I would be happy to take your dare and would like to point out that the President of ITLOS had to perform the task of appointing the arbitrators PRECISELY because China refused to participate in the arbitral proceedings. If China had done so, it would have been able to choose an arbitrator from Asia if it wished. I now dare you to challenge the fact that the five arbitrators are among the most respected jurists for the law of sea. All personal insults and abuse directed at them will not change that fact.

    As I said, I do not wish to engage in a meaningless fight so this will be the last you hear of me. All the accusations in the blog post and comments from the part of China have been circulated for a while now so I don’t think my comment will change your attitude any time soon. But I firmly believe my views expressed here are not shared by any one country but by anyone who understands and respects the rule of law. I hope you will find the time to at least read UNCLOS and particularly Part VII on the arbitral tribunal to understand how it functions before pointing fingers at any one.

  8. Mr. Lan Ngugyen, if anything is petty, you started it.

    You apparently failed character test. you also showed that you lack any intellectual honesty to talk about law.

    I don’t know if these judges are respected or not. It is subjective and unlike you, I don’t confuse opinions with facts.

    This panel didn’t even bother to verify the evidence, ignored Taiwan’s invitation to inspect Taiping island, decided that there is no water on the island and it is a rock. That shows these people are indeed kangaroos of this kangaroo court.

    This award gravely damaged the credibility and reputation of the current arbitration system. It caused the severe harm to UNCLOS. The fact that the arbitration can proceed without the other party’s participation, jurists can be appointed by a biased person, and the activism of these jurists are allowed free rein of vital national interests, is appalling.

    This kind of legal hooliganism needs to be stopped. I thank China for standing up to it. Again, the world is a better place because of it.

  9. Dear talking points,

    1. I would like to invite you to read Annex VII of the United Nations Convention on the Law of the Sea, 1982 to understand the rules about the constitution and the expenses of the arbitral tribunal:
    – Art. 3 of the Annex VII says that if one of the parties to the dispute does not appoint a member of the tribunal, the President of the International Tribunal on the Law of the Sea will do so.
    – Art. 7 of the Annex VII says that unless the arbitral tribunal decides otherwise, the expenses of the tribunal, including the remuneration of its members, shall be borne by the parties to the dispute in equal shares.

    2. I would like to invite you to read the award of the arbitral tribunal itself to see that the Ambassador of the People’s Republic of China to the Netherlands has sent letters to the members of the arbitral tribunal to object the possibility of any site visit to the South China Sea.

    3. Finally, I would like to invite you to read about logical fallacies (example, see: https://owl.english.purdue.edu/owl/resource/659/03/) so that we can avoid falling into them and making the discussion more fruitful.

    Regards,

  10. Dear Lighthouse,

    thank you for your invocation of the relevant UNCLOS articles. but legal hooliganism is still there, and you can’t respond adequately to these charge made by Talking Points:
    “The fact that the arbitration can proceed without the other party’s participation, jurists can be appointed by a biased person, and the activism of these jurists are allowed free rein of vital national interests, is appalling.”

    even the Japanese judge has the duty and right to appoint the arbitrators China failed to fill, that still does not grant the Japanese to arbitrarily appoint arbitrators without requirement of sound geographical distribution and a balanced composition of the arbitral tribunal!

  11. Thank you for this very interesting post !
    I wonder if apart from questioning the position of the authors of the post and those commenting as eventually reflecting those of non-intervening parties there are some additional remarks on the merits of the decision. I went slowly through the award and felt it to be persuasive as I feel more comfortable with ICL.
    There are indeed two aspects which hurt me and one of it is eventually related with jurisdiction. In my opinion the tribunal was too hasty in distinguishing (along with the views of the Philippines) the approach of the Eritrea v. Yemen arbitration from the Gulf of Maine Arbitration and the concept and relevance of historic titles, based upon the fact that it was not an Annex VII Arbitration (§ 259).
    I further feel that the consideration that “human modification cannot change the seabed into a low-tide elevation or a low-tide elevation into an island” ( 305), which I agree with, should have mandated a brief consideration for those provisions in the UNCLOS allowing for a certain degree of “human modification” and for human modifications as such. Reference is to art. 7(3) and the legal effects of the building of Lighthouses or similar installations on low tide elevations which allow for the drawing of baselines from low-tides. Similarly outermost permanent habourworks are regarded as forming part of the coast (art. 11) and roadsteads which would otherwise be situated wholly or partly outside the outer limit of the territorial sea, are included in the territorial sea (art. 13).

  12. Dear Rafael Santos,

    Please delight me where you can find the evidences showing that the Japanese judge is a “biased person”, where you can tell that in the Awards expressing partial judgment.

    One more thing, if a person forget the fact that China government could see that its non-appearance would lead to the legal consequence of a Japanese judge’s appointing the arbitrators for the case and was brave enough to choose to be absent, that person is highly underestimate China. And, scholars using such argument to devaluate the judgment are devaluating China’s decision too.

    Thank you.

  13. If those commentators sympathetic to the arguments of China could respond to legal arguments with legal arguments, as opposed to attacks on the personal position of other commentators, that would be grand. I’m sure there are interesting discussions to be had in the comments sections of OJ or EJIL:Talk!, and it would be a shame for the websites to descend in a manner similar to the Guardian’s comments pages.

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