Assessing the Fallout from the South China Sea Award

Assessing the Fallout from the South China Sea Award

In addition to my posts here (see below), I have several  pieces over the last week discussing different aspects of the South China Sea award up at various outlets across the web universe (I know, I know, I need to stop writing about this topic, but indulge me just a little longer).  To briefly recap my various takes, here is a quick summary:

As a legal matter, China lost every substantive issue before the South China Sea arbitral tribunal.  I argued here at Lawfare that the award “dramatically widens” the scope of future more aggressive U.S. freedom of navigation operations by, for instance, eliminating any legal basis for a Chinese territorial sea around its artificial island on Mischief Reef.  Since that reef is also within the Philippines’ exclusive economic zone, the U.S. Navy has (as a legal matter) carte blanche to sail or fly within 500 meters of what is now an artificial island in clear violation of Philippines’ rights under UNCLOS.

On the other hand, I warned here in The National Interest that the arbitral award does not require China to leave the South China Sea or the Spratlys in particular.  The award leaves open the legal possibility for China to claim a series of 12 nautical mile territorial seas around various rocks in the island group. This means that even in China complied with the award, it would have the legal right to maintain a robust presence there.

Taking a step back, I also blamed China’s government (in this piece for Quartz) for exacerbating the negative impact of the award by refusing the participate in the proceedings and then starting a global media war against it.  This drew much more attention to the award than would have otherwise been the case.

Finally, over at Foreign Policy, I offered a very tough critique of the role of Chinese international law scholars in bolstering the Chinese government’s claim that it can legally ignore the arbitration.  It is not so much that Chinese international legal scholars were wrong, but that their unanimity weakens their long-term credibility on the global stage.  I contrast the unanimity within China’s academic community with the much-divided U.S. academic reaction to the U.S. government’s refusal to comply with the ICJ’s Nicaragua judgment in 1986.

For any Chinese-language readers out there, I have been engaging in a debate (thanks to the fabulous translation work of my student Weitao Chen) at the Financial Times (Chinese edition) with Professor Liu Haiyang on China’s obligation under UNCLOS Article 288(4) to accept the arbitral tribunal’s determination of its own jurisdiction. Here was my initial essay, here is Prof. Liu’s response, and here is my rebuttal.  Annoyingly, it appears my initial essay has been censored in China, which must mean I am making good arguments!

I am not done with discussing this award, but I do need to get a life at some point. I am also trying to incorporate all of this into a larger project on China’s overall relationship with international law.  Certainly, this whole dispute will be a significant chapter in my book!

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European Law Student
European Law Student

Good articles.

By the way, what _is_ China’s position on UNCLOS Article 288(4) with regards to the South China Sea arbitration?

I’ve read quite a few articles and opinions about the case, and I’ve yet to see a real argument against the plain meaning of the text.

(“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.”)


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Oni Baba

In proper context– the South China Sea case, like the Larsen v. Hawaiian Kingdom case, took place at the Hague’s Permanent Court of Arbitration (PCA), not the International Court of Justice. Arbitration, unless I’m mistaken, is like a trial but less formal. In arbitration, two sides present their evidence to an arbitrator. The arbitrator decides who wins and who loses, doing the job that a judge or jury would normally do in court. However, China (like the U.S. in the Larsen case) chose not to represent itself in arbitration and so there is no legal obligation for China to follow the ruling. PCA proceedings can only be binding if both parties are present. In 1999, the PCA Tribunal precluded that by the fact that the US was not a party to the proceedings and had not consented to them, that the arbitral proceedings against the Hawaiian Kingdom were not “maintainable.” Of course by doing so, the U.S. would have to recognize the Hawaiian Kingdom, and prove its claim of annexation and thus, statehood, which would be very difficult since the Kingdom was taken by a US military-backed coup, and never annexed as claimed. Why is China given a different standard?… Read more »