So How is China Reacting to the Philippines Arbitration Submission? Not Very Well

by Julian Ku

China has not been quiet in reacting to the Philippines filing Sunday of its memorial in the UNCLOS South China Sea arbitration.  In addition to the foreign ministry’s remarks, the People’s Daily has released a full-scale defense of China’s legal and policy position (recently translated here). It is the longest official (well, close-to-official) statement of China’s legal position on the arbitration as I’ve seen anywhere. The heart of China’s argument is that this whole Philippines dispute is about sovereignty over the Nansha Islands, parts of which the Philippines is illegally occupying.  Because this is about sovereignty, and because China excluded maritime and territorial disputes from UNCLOS arbitral jurisdiction in its 2006 declaration, it is the Philippines (and not China) that is violating international law by filing the arbitration claim. Here are a couple of legal arguments or claims in the commentary that jumped out at me. (Read more after the jump)

Game On! Philippines Files (4000 page) Memorial in China UNCLOS Arbitration

by Julian Ku

Just in time for the odd Sunday filing deadline, the government of the Philippines announced that it had submitted its memorial in its arbitration with China under UNCLOS.

Ignoring a possible backlash from China, the Philippine government transmitted the document, called a “memorial” in international arbitration parlance, on Sunday to the Netherlands-based Permanent Court of Arbitration where a five-member tribunal operating under the United Nations Convention on the Law of the Sea will hear Manila’s complaint.

“Today, the Philippines submitted its memorial to the arbitral tribunal that is hearing the case its brought against the People’s Republic of China under the United Nations Convention on the Law of the Sea,” Foreign Affairs Secretary Albert del Rosario told a news conference.

“With firm conviction, the ultimate purpose of our memorial is our national interest.”

Manila declined to release a copy of the memorial as it has yet to be reviewed by the court.

But Del Rosario said the Philippine “memorial” consists of “ten volumes with maps,” “nearly 4,000 pages” and will fortify the Philippine case which seeks to declare China’s exaggerated claim illegal. A hard copy will be forwarded to the tribunal on Monday.

I hope and trust that at least volume I of the memorial (containing the 270-pages of actual legal argument and analysis) is released publicly soon.  I do think the additional 3700-plus pages of annexes is overkill in a case where the other side is highly unlikely to bother answering.  Still, it will be an interesting public statement of the Philippines’ best legal arguments.  I have grown increasingly skeptical of this Philippines argument, both from a legal and a strategic standpoint.  But I would like to see their arguments.

Someone (Prof. Stefan Talmon) Finally Makes An Argument In Favor of China in the Philippines UNCLOS Arbitration

by Julian Ku

One of the most frustrating things about China’s response to the Philippines arbitration has been the brevity of its legal discussion and analysis.  In particular, I’ve long thought that China had a pretty good argument that the Annex VII UNCLOS arbitral tribunal does not have jurisdiction over the dispute since, in many ways, territorial disputes are at the heart of the Philippines’ case.

But neither the government nor Chinese scholars have offered much flesh to this argument.  The closest statement I’ve seen was Judge Xue Hanqin’s impromptu remarks at the Asian Society of International Law conference last fall and a very brief Global Times essay.. But all that has now changed due to a book chapter  released by Professor Stefan Talmon of the University of Bonn.  From his abstract:

The chapter examines whether the Tribunal has jurisdiction to hear the case, whether the claims brought by the Philippines are admissible and whether there are any other objections which the tribunal will have to decide as a preliminary matter. It aims to offer a (not the) Chinese perspective on some of the issues to be decided by the Tribunal. The chapter is to serve as a kind of amicus curiae brief advancing possible legal arguments on behalf of the absent respondent. It shows that there are insurmountable preliminary objections to the Tribunal deciding the case on the merits and that the Tribunal would be well advised to refer the dispute back to the parties in order for them to reach a negotiated settlement.

I’ve only taken a quick look at Prof. Talmon’s pretty comprehensive discussion, and it really does read like an “amicus brief” for China on the question of jurisdiction.  I will have to consider more carefully Prof. Talmon’s claim that the 9-Dash Line claim can fit into the “historic waters” exception to jurisdiction, but overall it seems like a very careful and persuasive treatment.

Will Ratifying UNCLOS Help the U.S. Manage China? I Doubt It

by Julian Ku

A subcommittee of the  U.S. House of Representatives’ Foreign Affairs Committee held a much-needed hearing to educate themselves on China’s recent activity in the East and South China Seas.  Professor Peter Dutton of the Naval War College, along with two other experts on Asian affairs, gave interesting and useful testimony on the nature of China’s maritime disputes with Japan, the Philippines, Vietnam, and other Asian countries.

There is a lot of interesting stuff here, but my attention was particularly caught by Professor Dutton’s recommendation (seconded by Bonnie Glaeser of the Center for Strategic and International Studies) that the U.S. ratify the UN Convention on the Law of the Sea (UNCLOS) as part of a multifaceted strategy to manage China’s sort-of-aggressive strategy to expand its power and influence in the region.  Here is Professor Dutton’s argument:

Accordingly, to ensure its future position in East Asia, the United States should take specific actions to defend the international legal architecture pertaining to the maritime and aerial commons. Acceding to the United Nations Convention on the Law of the Sea and once again exercising direct leadership over the development of its rules and norms is the first and most critical step. The Department of State should also re-energize its Limits in the Seas series to publicly and repeatedly reinforce international law related to sea and airspace. A good place to begin the new series would be with a detailed assessment of why international law explicitly rejects China’s U-shaped line in the South China Sea as the basis for Chinese jurisdiction there. Others could be written to describe why China’s East China Sea continental shelf claim misapplies international law and why China’s ADIZ unlawfully asserts jurisdiction in the airspace. My sense is that East Asian states, indeed many states around the world, are desperate for active American leadership over the norms and laws that govern legitimate international action.

I understand the force of this argument. The U.S. already adheres the key principles in UNCLOS, so joining UNCLOS will allow the U.S. to push back more effectively against China’s aggressive and expansionary activities.

But is there really any evidence that formal accession would change China’s view of the U.S. position on UNCLOS issues?  China is already a member of UNCLOS and other countries (like Japan and the Philippines) are also members of UNCLOS. But I don’t think UNCLOS has really bolstered their effectiveness in pushing back against China.  Moreover, as Professor Dutton explains, China has a radically different interpretation of its authority to regulate foreign ships and aircraft in its Exclusive Economic Zone under UNCLOS.  How will joining UNCLOS help the U.S. change China’s interpretation of UNCLOS?

As a practical matter, UNCLOS does have a way of compelling member states to conform their interpretations: mandatory dispute settlement in the International Tribunal for the Law of the Sea or in Annex VII arbitration.  But as China and Russia have demonstrated in recent years, these mechanisms are not likely to be a serious constraint, especially on questions that touch sovereignty (which is how China frames most of its activities).  I suppose if the U.S. joins UNCLOS, and subjects itself to UNCLOS dispute settlement, that might make a difference.  But I don’t think it would be a very large one (after all, Japan, China, and the Philippines are all already subject to UNCLOS dispute settlement, which has accomplished little so far).

I should add that the U.S. joining UNCLOS is hardly the most prominent of Professor Dutton’s recommendations.  His (and his co-panelists) had lots of good strategic policy recommendations.  I think the law may be important here, but I am skeptical that it will be as effective as he (and many analysts) are hoping.

China’s ICJ Judge Xue Hanqin Publicly Defends China’s Non-Participation in UNCLOS Arbitration [Updated]

by Julian Ku

xue

[This Post has been updated]. One of the main benefits of attending a conference (rather than just reading descriptions of its proceedings), is the chance to have face-to-face exchanges with individuals you normally never get a chance to meet.  One of the unusual aspects of the Asian Society of International Law is that it draws lawyers from many different Asian countries, even Asian countries locked into disputes with each other.  Like the Philippines…and China.

Which is why I was so pleased to witness a frank exchange last week at AsianSIL’s biennial conference in New Delhi, India between two unofficial but influential representatives of each country’s legal positions in the upcoming Philippines-China UNCLOS arbitration. In one corner, Prof. Harry Roque from the University of the Philippines presented a relatively even description of the Philippines’ claim against China during a panel on the Law of the Sea in Asia (click here for his blogging on this same event).  In the other corner, was Judge Xue Hanqin, China’s member of the International Court of Justice.  Although she was not listed as a panel participant, she stood up after Prof. Roque’s presentation to offer a 15-minute extemporaneous defense of China’s position.

Judge Xue is no longer officially affiliated with the Chinese government, but she has served in high diplomatic positions before her current post.  One of her prior positions, indeed, was as China’s Ambassador to the Association of Southeast Asian Nations (ASEAN) where she was involved in negotiations with Vietnam over maritime rights.  Moreover, she has served a general legal adviser to the Chinese Ministry of Foreign Affairs, including on its submission to the ICJ in the Kosovo advisory proceeding.  Her views are likely to be close or the same as the views of the Chinese government on these issues.  Since the Chinese government has offered almost no official explanation of its legal position, her statement may be the best we will get from China in the near future.[*UPDATE: On the other hand, Judge Xue wants to make clear she is not representing China in any official or unofficial capacity and that she does not endorse the summary of her views below. See below for her full disclaimer].

The following is based on my notes of her presentation. They are necessarily incomplete, but hopefully a fair summary of her views.

 

Did the U.S. Set a Precedent for the China/Russia Boycott of UNCLOS Arbitration? Sure! But So What?

by Julian Ku

Wim Muller, an associate fellow in international law at Chatham House, takes issue with my observation that China’s rejection of Annex VII UNCLOS Arbitration may have influenced Russia’s similar rejection of UNCLOS proceedings in the Greenpeace arbitration.  Other commenters take issue with my further claim that Russia’s rejection is another “body blow” to ITLOS dispute settlement. I offer my (“typically tendentious”) response below.

Muller’s criticism, I believe, is mostly just a misunderstanding of my position.  I don’t disagree that the U.S. and other countries have walked away from binding international dispute settlement and this could have set a precedent here.  But my point is narrower:  China and Russia are, as far as I know, the first states ever to reject participation in UNCLOS dispute settlement, and their actions are a serious challenge to the future of UNCLOS dispute settlement, which is supposed to be a key and integral part of the UNCLOS system. Thus, although UNCLOS dispute settlement is not exactly a model of success, it has never before suffered the spectacle of two member states rejecting its tribunals’ jurisdictions (within the same calendar year no less).  I would be surprised if the U.S. example from 1984  was more relevant to Russia’s decision than China’s decision from February of this year.  I don’t think any UNCLOS state has ever rejected the jurisdiction of the ITLOS with respect to provisional measures or “prompt release” procedures.  Indeed, it is worth noting that Russia has not only availed itself of the “prompt release” procedure on one occasion, but it has also submitted to ITLOS “prompt release” jurisdiction in two prior cases.  To be sure, it did not contest jurisdiction in those cases and neither involved similar facts.  But it is striking that Russia has gone from active UNCLOS dispute settlement player to effective boycotter.

UNCLOS dispute settlement is not “voluntary.” It is a system of compulsory  and binding dispute settlement.  Indeed, UNCLOS itself makes clear in Art. 288(4) that UNCLOS tribunals have the power to determine their own jurisdiction.  By refusing to participate in UNCLOS dispute settlement based on their own unilateral claims about jurisdiction, China and Russia are essentially telling the tribunal that they will not accept jurisdiction, no matter what the tribunal determines about jurisdiction, and despite the plain authority those tribunals hold under Art. 288(4).  It may not be a “body blow” but it is not exactly a resounding vote of confidence in UNCLOS dispute settlement either.

Now, Muller seems to be arguing

China’s Definition of the “Peaceful Settlement of International Disputes” Leaves Out International Adjudication

by Julian Ku

China’s U.N. Ambassador made a typically anodyne statement recently to the U.N. General Assembly on the Rule of Law at National and International Levels. But there are a few interesting nuggets worth noting that reflect China’s skeptical attitude toward international adjudication.

Anyone who follows the Chinese government’s diplomatic statements will know that it repeatedly stresses the U.N. Charter’s obligation on states to seek peaceful settlements of international disputes.  But the Chinese here and elsewhere define this obligation more narrowly than many international lawyers or other states might define it.  From the “Rule of Law” statement:

The Chinese government actively upholds peaceful settlement of disputes, proposes to settle international disputes properly through negotiation, dialogue and consultation, thus maintaining international peace and security.

So far so good.  But for many international lawyers, and for many states, the “peaceful settlement of international disputes” would also include other means listed in Article 33(1) of the Charter.

The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.

(Emphasis added.)

Now Article 33(1) simply lists options, it does not mandate all states use every one of these processes to resolve disputes.  But it is striking how the Chinese government goes out of its way to downplay arbitration and judicial settlement from its public statements on “peaceful settlements of disputes” and in a statement about the importance of the rule of law at the international level.  Indeed, this particular statement on the rule of law goes out of its way to denounce the abuse of arbitration and judicial settlement.

The Chinese delegation believes that the decision to resort to arbitrary or judicial institutions to settle international disputes should be based on the principles of international rule of law and premised on equality and free will of states concerned. Any action to willfully refer disputes to arbitrary (sic) or judicial institutions in defiance of the will of the states concerned or provisions of international treaties constitutes a violation of the principles of international rule of law and is thus unacceptable to the Chinese government.

Hmm… I wonder what country has willfully referred a dispute to arbitration in defiance of China’s will recently?

I am not criticizing China’s legal position here, which seems eminently defensible and reasonable.  I do think that its approach, which privileges a state’s will and “sovereign equality” as a principle of international law, will naturally lead it to de-emphasize arbitration and judicial settlement. And since China’s opposition to the Philippines’ arbitration is based on a theory of state non-consent and lack of jurisdiction, I think it is unlikely to climb down from this position and accept the legitimacy of the UNCLOS arbitration.

Which is why I find it hard to accept the theory put forth by the Philippines lead U.S. counsel, Paul Reichler, as to why China will ultimately accept the arbitral tribunal award in that dispute. In an interview in the WSJ, Reichler relies on the reputational damage China will suffer if it defies the arbitral tribunal and the advantages China would get out of a “rules-based” system.  But China’s view of a “rules-based” system does not necessarily require it to submit to arbitration to set the “rules.”  China already has a robust vision of how it can be a “rule of law” nation and avoid arbitration and judicial settlement. Nothing the UNCLOS tribunal does will likely change this view.  Indeed, to the extent that other nations share its views, it will also lessen any reputation damage it suffers from a negative award.

Non-Syria News: Update on that Philippines-China Arbitration

by Julian Ku

I’ve been distracted the last few days by all this Syria stuff (and a nasty case of poison ivy), so I neglected to keep up with the latest on that Philippines-China UNCLOS arbitration now seated at the Permanent Court of Arbitration at The Hague.  Luckily, Luke Petersen of Investment Arbitration Reporter is on the case and has this great post analyzing the information released so far about the arbitration.  Note that the Philippines has until March 2014 to file their memorial.  This seems ridiculously long given that they’ve been preparing their case for at least a year already, and they have an interest in moving this along more quickly.  But that’s another conversation.

I don’t have much to add to Luke’s post except I would point readers to Luke’s interesting discussion of other arbitrations where one party doesn’t participate (like China is refusing to do here).  Those cases, he notes, can go all the way to an award, and even (in one case) to enforcement. Wouldn’t bet on that here, but you never know.

China and the Philippines Take Their “Battle” Over South China Sea to Military Conference

by Julian Ku

The indefatigable Benjamin Wittes at Lawfare has a short post describing a lively exchange between the Chinese and Filipino representatives at MILSOPS, an invitation-only off-the-record meeting of top military officials from the Asia-Pacific region, about China’s nine-dash-line claim to the South China Sea.

Apparently, this has been an ongoing debate at this annual conference. Last year, the Chinese representative presented this set of powerpoint slides usefully entitled:  ”China has indisputable sovereignty over the islands in the South China Sea: Understanding the South China Sea issue from the angle of law”.  (The title says it all). Ben says he is somewhat constrained in his reporting since the conference is off-the-record, but hopefully he can get participants to write more about their exchange.

The one thing that is a constant in these slides and from other articles from China is that Chinese officials are using their claim to sovereignty over the “Nansha” islands as the basis for their claims of “indisputable sovereignty.”  And China does indeed have plausible sovereignty claims to many of the islands in the South China Sea, and those sovereignty claims are of course not subject to UNCLOS arbitration.  But no one in China has really offered a particularly detailed explanation of how the sovereignty claims to the islands can justify the “nine-dash line” (see my earlier post here describing the nine-dash line claim) which goes well beyond a 12 mile territorial sea or the 200 mile exclusive economic zone. Thus, even if China had sovereignty over every random rock in the South China Sea, it can’t quite support the nine-dash line.  I wish Chinese scholars would offer a more comprehensive explanation or defense of the nine-dash line, as oppose to muddying the issue by raising their island sovereignty claims.  It is the nine-dash line that makes China’s claims unusual, and particularly dangerous.  And, oddly, it overshadows and weakens China’s much better and more legally supportable claims to particular South China Sea islands.

The First Serious Defense of China’s Position on the Philippines UNCLOS Arbitration

by Julian Ku

Professor Stefan Talmon of the University of Bonn and St. Anne’s College in Oxford offers one of the first serious attempts to defend China’s position on the UNCLOS arbitration brought by the Philippines.  In an essay published by the Global Times, China’s hawkish state-owned daily paper, Professor Talmon argues that all of the Philippines’ claims against China fall outside of the jurisdiction of the UNCLOS arbitral tribunal.

For example, the claim that China’s maritime claims in the South China Sea based on the so-called nine-dash line are invalid, the claim that China has unlawfully claimed maritime entitlements beyond 12 nautical miles around certain insular features and has prevented Philippine vessels from fishing in the waters adjacent to those features, and the claim that China has unlawfully interfered with the exercise by the Philippines of its right to navigation and other rights cannot be decided without touching upon China’s claim to historic title and rights within the area of the nine-dash line.

In addition, any measures taken by China against the Philippine vessels may also be subject to the “law enforcement activities” exception with regard to fisheries matters or may be excluded as an exercise of China’s sovereign rights and jurisdiction provided by UNCLOS.

The claim that China unlawfully occupies certain low-tide elevations in the South China Sea cannot be addressed without dealing with the question of sovereignty or other rights over these insular land territories.

Finally, declarations that certain submerged features form part of the continental shelf of the Philippines, that China has unlawfully exploited the living and non-living resources in the Philippines’ exclusive economic zone and continental shelf, and that China has interfered with the Philippines’ right to navigation and other rights in areas within and beyond 200 nautical miles of the Philippines cannot be made without engaging in sea boundary delimitations.

I have to admit I am not very persuaded by this analysis. In Prof. Talmon’s defense, the essay is very short and not an attempt to provide a deep legal analysis of the problem.  But the idea that any challenge to the nine-dash line is excluded from UNCLOS arbitration is hardly obvious to me, since the basis of China’s nine-dash line is very murky anyway. It is not an historic bay.  I suppose it could be an “historic title” within the meaning of Article 298, but that is hardly obvious. Under Prof. Talmon’s reading, any claim of historic title, even if it undermines all of the other principles of UNCLOS, are outside the jurisdiction of the UNCLOS tribunal.

Similarly, when the Philippines argues that something is a “rock” and not an “island” under the definition of UNCLOS, I don’t see how that requires a sea boundary determination?

Most importantly, I can’t see how Prof. Talmon can avoid the question of why China is not even bothering to make these jurisdictional arguments in the UNCLOS tribunal. It is an oddly disrespectful move, to say the least, for China to essentially boycott the tribunal. Does Prof. Talmon think the Philippines case is so weak that ignoring the arbitration is justified?

Still, it is worth exploring these questions, since the arbitral tribunal will likely do so. I would hope Prof. Talmon has a longer version of his views posted somewhere, and if not, he is welcome to do so here at any time!

 

Game On! ITLOS President Appoints Final 3 Members of Philippines-China Tribunal

by Julian Ku

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 and Sovereignty Under International Law

by Julian Ku

As regular readers of this blog might have noticed, I have become more and more interested China and its engagement with international law issues.   Last year, I proposed to the ASIL Planning Committee that we put together a panel of leading U.S. China law scholars.  But the ASIL organizers pushed back and put together a much more diverse group than I had suggested, which included a U.S. China scholar like Jacques Delisle from Penn, but also Chinese international law scholars like Bingbing Jia of Tsinghua and then added a nice dose of on-the-ground policy analysis from Stephanie Kleine-Ahlbrandt of the International Crisis Group.  It ended up being a terrific mix of style, topics, and expertise.  We didn’t rate a “livestream”, but I wanted to share a few thoughts for our readers on what I think is an important topic. I am not going to attempt to summarize their comments, but simply offer some of my reactions to their key points.

The idea of the panel (at least to me) was to consider whether the “rise of China” in global affairs has changed much about how China interacts with international law. In my crude formulation, the question is now less about what “international law does to China” but more what “China will do to international law.”

Both of the lawyer-panelists (Jia and Delisle) focused on “sovereignty” as the most important principle guiding China’s understanding and engagement with international law.