Yesterday, President of the International Tribunal for the Law of the Sea, Shunji Yanai, announced the appointment of the final three members of the Annex VII UNCLOS tribunal.

International Tribunal on the Law of the Sea (ITLOS) President Shunji Yanai on April 24 transmitted a letter to Philippine Solicitor General Francis Jardeleza, head of the Philippine legal team on the arbitration case, informing Manila of the appointment of Mr. Jean-Pierre Cot (France), Mr. Chris Pinto (Sri Lanka), and Mr. Alfred Soons (The Netherlands.)

Yanai earlier appointed Mr. Stanislaw Pawlak (Poland) as the second member of the tribunal who will represent China in the proceedings. The Philippines, on the other hand, nominated Mr. Rudiger Wolfrum (Germany) to the tribunal.

I have to admit I am a bit surprised that President Yanai did not appoint any arbitrators from East Asia or Southeast Asia. As it turns out, the Annex VII tribunal will have four Europeans, three of whom are currently serving as judges on ITLOS.  Chris Pinto of Sri Lanka will be the only member of the tribunal from Asia (broadly defined).  I would have appointed a Chinese national and a Philippines national, which would be in keeping with the tradition of many other interstate arbitrations.

It turns out that I had the opportunity to meet Philippines Solicitor General Jardeleza, who is spearheading the Philippines arbitration team, just yesterday at an event sponsored by the U.S.-Asia Law Institute at New York University.  I got some great insights in to the strategy behind the Philippines’ decision to pursue arbitration, which I hope to share in a later post.  But for now we can say that the arbitration is going to happen, for sure.

If China continues to ignore the arbitration, it is worth keeping in mind that UNCLOS actually has a provision guiding tribunals in this situation.

Article 9 Default of appearance

If one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case, the other party may request the tribunal to continue the proceedings and to make its award. Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings. Before making its award, the arbitral tribunal must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law.

(Emphasis Added).  So the tribunal has a legal duty to consider the jurisdictional issue seriously and to ensure that the Philippines’ claim is well-founded.  No “default” judgments can be issued here (Nor would that be in the interest of the Philippines anyway).

China’s initial reaction to the Philippines’ decision yesterday to file an arbitration claim has been to stick to its guns.  From the BBC:

On Wednesday, Chinese foreign ministry spokesman Hong Lei told journalists that China has “indisputable sovereignty over the South China Sea islands and adjacent waters, which has abundant historical and legal grounds”.

“The key and root of the dispute over the South China Sea between China and the Philippines is territorial disputes caused by the Philippines’ illegal occupation of some of the Chinese islets and atolls of the Spratly Islands,” he said.

He said China had been “consistently working towards resolving the disputes through dialogue and negotiations to defend Sino-Philippine relations and regional peace and stability”.

Some observers, quoted here by the VOA, have suggested that China will simply not participate in the UNCLOS arbitration.  I think this makes sense from a strategic perspective, but it is hard to understand how that would work from a legal perspective.

As a legal matter, China has an obligation to participate in the UNCLOS arbitration by selecting an arbitrator, and then a schedule for the proceedings.  It will then file a challenge to the UNCLOS arbitration tribunal’s jurisdiction (an argument I believe it has a good chance to win).  If China simply doesn’t show up, then it would be in clear violation of its UNCLOS obligations.

China has an interesting choice here. It could participate in the arbitration, and if it loses on jurisdiction, simply withdraw and declare that it won’t abide by the tribunal’s decision.  Or it could litigate to the merits, and then if it loses, simply refuse to comply with the arbitral tribunal’s award.

None of these potential arbitral results are really all that attractive, from China’s perspective. But defaulting on the arbitration is not all that attractive either.  What China does here will tell us a lot about China’s commitment to its strategic goal of controlling the South China Sea, as well as its level of commitment to UNCLOS and international dispute resolution.

In a potentially huge development, the Government of the Philippines announced earlier today that it has filed for arbitration with China under the UN Convention for the Law of the Sea. The Philippines’ claim places China’s controversial sovereignty claim over the South China Sea (see right) squarely before an international arbitral tribunal convened under Article 287 of UNCLOS.  According to the Philippines Foreign Minister, here are the main claims:

1. The Philippines asserts that China’s so-called nine-dash line claim that encompasses virtually the entire South China Sea/West Philippine Sea is contrary to UNCLOS and thus unlawful.
2. Within the maritime area encompassed by the 9-dash line, China has also laid claim to, occupied and built structures on certain submerged banks, reefs and low tide elevations that do not qualify as islands under UNCLOS, but are parts of the Philippine continental shelf, or the international seabed.
3. In addition, China has occupied certain small, uninhabitable coral projections that are barely above water at high tide, and which are “rocks” under Article 121 (3) of UNCLOS.China has interfered with the lawful exercise by the Philippines of its rights within its legitimate maritime zones, as well as to the aforementioned features and their surrounding waters.
4. The Philippines is conscious of China’s Declaration of August 25, 2006 under Article 298 of UNCLOS (regarding optional exceptions to the compulsory proceedings), and has avoided raising subjects or making claims that China has, by virtue of that Declaration, excluded from arbitral jurisdiction.

Some early thoughts.  As I argued here, I still think the Philippines has a massive jurisdictional problem because of China’s Article 298 declaration excludes the following certain subjects from this kind of arbitration.

(a)(i) disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations, or those involving historic bays or titles….

China is claiming (at least it has often seemed to be claiming) that it has complete sovereignty over the South China Sea (per the map above). I take the Philippines is arguing that China’s South China Sea claim is not really a “sea boundary  delimitation” within the meaning of Article 15.  Nor is the Chinese SCS claim about “historic bays” and “titles”.  I don’t think that the Philippines has a hopeless case, but I do think they will face a huge challenge to get any arbitral tribunal to assert jurisdiction here, especially since one judge will be appointed by China.

On the plus side, if the Philippines manages to get past the jurisdictional hurdle, it seems to me that they have a very good chance of prevailing since China’s claim is hard to square with the rest of UNCLOS.  Moreover, they force China to go on the defensive here without actually threatening China in any military or economic way.

Strategically, I think I understand why the Philippines has filed this claim. They have very little leverage with China: economically, politically, or militarily.  In this forum, the worst case scenario is the Philippines will lose on jurisdiction. This shouldn’t affect the merits of their claims, though.  For China, the worst case scenario is that it loses on the merits and would have to face the decision of whether to comply with the tribunal.  If they lose, I can see China simply withdrawing from UNCLOS.

In any event, I think it is safe to say this it a game changer in the long-running South China Sea dispute.  It is also, without question, the most important case that has ever been filed under the dispute resolution procedures of UNCLOS.  It will be a crucial test of the UNCLOS institutions, as well as of UNCLOS members.  I am skeptical that China will allow itself to be drawn into serious international adjudication (see my argument here), but it will be fascinating to see how China reacts.

Two different but interesting views of Australia’s threat to bring Japan to the ICJ over whaling.

Over at The Jurist, Don Rothwell of Australian National University provides some background and legal context for Australia’s lawsuit. As I understand it, Australia could claim that Japan is actually violating Australia’s 200 mile exclusive economic zone (assuming certain Australian Antarctic claims were accepted).  But it seems more likely that Australia will try to make a claim under the 1946 International Convention for the Regulation of Whaling. As I’ve suggested, this seems a very tough case to make, and Japan may get the IWC to alter its rules anyway.

Over at the Australian, Greg Sheridan points out that the Japanese government is not taking Australia very seriously on this issue, and sees it as essentially a domestic political matter for Australians.  And he goes on:

As well, observers of all stripes are dumbfounded at the Rudd government’s decision to blindside Japan’s Foreign Minister Katsuya Okada just before his visit to Australia. Canberra did this by announcing, on the eve of Okada’s arrival in Australia and without any warning to the Japanese, that it had decided to take Japan to the International Court of Justice over whaling. There is not the slightest chance of this court action succeeding. To insult Okada, the most pro-Australian member of Tokyo’s core leadership, in this manner was extremely foolish.

Emphasis added. I think Sheridan is not far wrong. Unless Australia is going to make the EEZ argument, it doesn’t seem like it has a very strong case.  And even if they somehow win, there is very little chance of Japan complying with the ICJ order.

I had almost forgotten about this ongoing dispute between Australia and Japan over whaling, which has been going on for years (and which I first noted on this blog way back in 2005).  The Australian Prime Minister warned Japan yesterday that if whaling doesn’t stop by November, Australia will take Japan to court, either the ICJ or the International Tribunal for the Law of the Sea.  Australia seems ready to go. It has its evidence lined up and appears to have James Crawford on board to argue its case before either the ITLOS or the ICJ.  I wouldn’t hold my breath on a quick decision on this, but it would be an interesting case nonetheless. As far as I know, Japan has never faced a case in the ICJ. I wonder what its reaction would be.