Game On with New Player? Vietnam Files Statement Against China at UN Arbitral Tribunal

by Julian Ku

The government of Vietnam appears to have filed a statement of its legal views with the UN Convention of the Law of the Sea arbitral tribunal formed to resolve the Philippines-China dispute in the South China Sea.  It is a little unclear exactly what Vietnam has filed.  According to its Ministry of Foreign Affairs website:

In response to the question on Viet Nam’s position regarding the South China Sea Arbitration case, spokesperson of the Ministry of Foreign Affairs of Viet Nam Le Hai Binh affirmed that:
“To protect its legal rights and interests in the East Sea which may be affected in the South China Sea Arbitration case, Viet Nam has expressed its position to the Tribunal regarding this case, and requested the Tribunal to pay due attention to the legal rights and interests of Viet Nam.”/.

According to the South China Morning Post, the Vietnamese submission has three points.

1) It supports the Philippines on the question of the tribunal’s jurisdiction.
2) It asks the tribunal to give due regard to Vietnam’s legal rights and interests
3) It rejects the legality of the Chinese “nine-dash line”.

I think this filing has much more political than legal significance.  As a legal matter, I don’t think there is any procedure in the UNCLOS dispute settlement system for third-party interventions, so I think this is really just like sending a letter to the arbitral tribunal.  It has no legal significance, and the tribunal has no obligation to consider it. But of course, it has the right to do so if it believes it is relevant to the dispute before it.

On the other hand, this is a political victory for the Philippines, since it means that Vietnam has tacitly agreed to join a common front against China.  I remain skeptical (as I wrote yesterday) of the Philippines’ legal strategy, even with this support from Vietnam, because China has the same arguments against Vietnam and it will not likely change course.   The next question: Will Vietnam file its own legal claim and form its own arbitral tribunal? That might push China into a different response, but I would still bet against it.

Why the Philippines’ Arbitration Against China is Doomed to Fail

by Julian Ku

Over at The National Interest, I have an essay considering the strategic implications of the Philippines arbitration claim against China.  I argue that the Philippines made a mistake by trying to force China into an arbitration under the UN Convention on the Law of the Sea, and that their “lawfare” strategy is probably going to backfire.

Due in part to domestic pressures for a robust nationalism in defense of all territorial claims, China has not yet reached the point where arbitration seems like a reasonable way to settle its maritime disputes.  And since it has now spent months denouncing the Philippines arbitration as illegal and illegitimate in its domestic press and internationally, it will be even harder to accept any form of international dispute resolution in the future.

This is why the Philippines’ effort to force China to accept arbitration now is doomed to fail and will probably backfire. The Philippines will be in no stronger position vis-à-vis China than it was before the arbitration, even if it wins an award.  Meanwhile, the overall credibility and effectiveness of the UNCLOS dispute resolution system will be called into question.  And the U.S. goal of a China that “abides by and reinforces” international law and norms will be even farther off.

 

China Manages to File (and Not File) a Legal Brief in the Philippines Arbitration

by Julian Ku

The UNCLOS arbitral tribunal formed to hear a dispute brought by the Philippines against China has set December 15 as a deadline for China to submit a legal brief or memorial. As most of our readers know, China has steadfastly refused to even participate in the arbitral process. It has not selected any arbitrators and it did not attend the first hearing last spring. I (like most observers) expected China to ignore the December 15 deadline as well.

Although it looks like China will not file a formal legal memorial, it released yesterday a long, tightly argued “position paper” that looks a lot like a formal legal memorial (at least on the question of the tribunal’s jurisdiction).   So China is going to essentially file a jurisdictional objection (since the tribunal will surely read this paper) without having to file a formal legal brief.

It’s the best of both worlds for China, since if the tribunal is influenced by the position paper, then this is good for China. If the tribunal ultimately reject the legal position and asserts jurisdiction, China will be able to say that it never actually participated in the arbitration anyway.

As a legal document, the position paper is very well done and is the best legal analysis of the jurisdictional issues in the Philippines arbitration I have seen coming out of China, and certainly from the Chinese government. Granted, the Philippines have not released their own memorial so I haven’t had the chance to read their side. Essentially, China has three arguments against jurisdiction:

  • The essence of the subject-matter of the arbitration is the territorial sovereignty over several maritime features in the South China Sea, which is beyond the scope of the Convention and does not concern the interpretation or application of the Convention;

  • China and the Philippines have agreed, through bilateral instruments and the Declaration on the Conduct of Parties in the South China Sea, to settle their relevant disputes through negotiations. By unilaterally initiating the present arbitration, the Philippines has breached its obligation under international law;

  • Even assuming,arguendo, that the subject-matter of the arbitration were concerned with the interpretation or application of the Convention, that subject-matter would constitute an integral part of maritime delimitation between the two countries, thus falling within the scope of the declaration filed by China in 2006 in accordance with the Convention, which excludes,inter alia, disputes concerning maritime delimitation from compulsory arbitration and other compulsory dispute settlement procedures;

What is good about the position paper is that offers careful and credible legal analysis and avoids (for the most part) the annoying official propaganda tone that is the bane of every China-analyst.  I haven’t had the time to go through the paper with any great detail, so I will offer more detailed analysis at a future time. I will just say for now that I am most skeptical of China’s second argument: that the “Philippines has breached its obligation under international law” by failing to settle this dispute via negotiations. While China has usefully offered facts to explain how the Philippines has not really fulfilled its obligations to negotiate, I just don’t think the Declaration of Conduct China is relying upon can be interpreted to bar any and all UNCLOS arbitrations indefinitely, as China would seem to have it.

But there is a lot here to chew on.   I will try to share more of my thoughts when I’ve had time think about this paper more carefully. And I’m sure the Philippines will be tempted to release at least the jurisdictional portion of their brief as well. I hope they do, since the public reaction to their legal arguments will be just as important as any ruling the tribunal makes.

What Does China Mean When It Celebrates the “International Rule of Law”?

by Julian Ku

In observance of United Nations Day on October 24, China’s foreign minister Wang Yi issued a long statement expressing China’s view of itself as a “staunch defender and builder of international law” (Chinese version here). As China-watchers know, China’s Communist Party has just completed its “Fourth Plenum” (sort of a Party leadership strategy meeting) on the theme of the promotion of the rule of law, so it is not surprising that China’s leadership would have something to say about the international rule of law as well.

The statement is pretty predictable (and largely unobjectionable) in its broad pledge for Chinese support to “international law” or the “international rule of law.”  It is hardly pathbreaking.  Still, as I have suggested in earlier posts, China’s government tends to have a slightly different view on what constitutes “international law” as compared to the United States or Europe.  So while much of the statement is pretty anodyne (it is communist-party-speak, after all), there are a few points relating to China’s emphasis on sovereignty and its allergy to human rights that are worth noting:

1) International Law and China’s History of National Humiliation

The statement places China’s commitment to international law in the context of its historical struggles facing foreign oppression in invasion beginning with the Opium War of the 1840s.  This reference to China’s historical weakness in the nineteenth and twentieth centuries is standard nationalist fare in China, but it is interesting that it is linked here to modern international law. As the statement notes, “[s]eeing the contrast between China’s past and present, the Chinese people fully recognize how valuable sovereignty, independence and peace are.”  I think this historical experience is a useful explanation for why there are deep roots to the version of international law presented here.  For China, international law is closely linked to its achievement of independence from foreign powers, and there is no principle more dear to China in international law than “sovereignty” and independence from foreign domination.  Those of us educated in the States have been taught that sovereignty is usually an obstacle to the promotion of international law (Louis Henkin even called it the “S” word), but that concept is still hard to sell in China.

2) Sovereignty 5:  Human Rights 0

Indeed, the statement mentions “sovereignty” five times as a fundamental principle of international law, as referenced in the United Nations Charter. Thus, the statement cites certain universally recognized norms of international law and relations such as

…[A]s respect for sovereignty and territorial integrity, peaceful settlement of international disputes and non-interference in the internal affairs of others, as enshrined in the UN Charter, are the foundation stones upon which modern international law and conduct of international relations are built.

This is right out of Article II of the UN Charter.  But it is hard to imagine a statement by the United States about international law that did not also mention the UN Charter’s commitment to the protection of human rights.  To be sure, human rights protection is not in Article II of the UN Charter’s list of “Principles” but it is odd (at least to an American) to see it ignored so completely here.

3) Just Say No to Responsibility to Protect 

The statement takes direct aim at those countries who are interventionist.

Hegemonism, power politics and all forms of “new interventionism” pose a direct challenge to basic principles of international law including respect for sovereignty and territorial integrity and non-interference in other countries’ internal affairs. Some countries follow a pragmatist or a double-standard approach to international law, using whatever that suits their interests and abandoning whatever that does not.

Hmm.. I wonder which country or countries it is referring to here?  This position also reflects longstanding Chinese policy against any kind of military intervention (and most other kinds as well) no matter what the justification.  So don’t count on a Chinese vote for that Syria intervention.

4) Go Democracy (between, but not within, nations)!

The statement also endorses democracy…that is to say, democracy in international lawmaking.  It accuses some countries (the One-Who-Must-Not-Be-Named) of trying to make “rules of certain countries as “international rules”, and their standards “international standards”. I am guessing this is clearly a shot at the U.S. in areas as varied as trade laws, IP, and human rights.

5) Philippines and UNCLOS arbitral tribunal: Don’t You Dare Ruin International Law

Not surprisingly, the statement takes aim at international and national courts.   It declares:

“National and international judicial institutions should avoid overstepping their authority in interpreting and applying international law. Still less should they encroach on the rights and interests of other countries under the pretext of”the rule of law” in total disregard of objectivity and fairness.”

I think this is clearly a warning signal to the UNCLOS arbitral tribunal formed to resolve the Philippines claim against China.  This is another sign there will be no backing down on this arbitration. China is going to continue to loudly proclaim its commitment to rule of law, and continue to reject and maybe even denigrate the legitimacy of this arbitration.

6) International Rule OF Law, not Rule BY Law

Finally, I’ll note that the statement’s use of the phrase “international rule of law” might help clarify a debate among China-watchers as to what China means by the phrase “rule of law.”  As Josh Chin has usefully explained in the Wall Street Journal here, the Chinese phrase “法治“ (fazhi) is often translated as “rule of law” but could also be translated as “rule by law”.  Indeed, there is a traditional Chinese “Legalist” tradition that thinks of law as an instrument for ruling society, but less so as a constraint on lawmakers and government.  Most China-watchers would probably say that “rule by law” is a more accurate translation of what the Chinese Communist Party means when they call for the promotion of the “法治” (fazhi) in domestic reforms, since most expect the Party to remain effectively above the law for most key matters in the future, but for law to be used as a mechanism of social and political control of everyone else.

No matter what the Party means domestically by 法治 (fazhi), it is clear that its use internationally fits within the Western conception of law as an autonomous force constraining state power and preserving state equality.

In promoting international rule of law, the most important thing is to use universally applicable rules in international relations to distinguish right and wrong, end disputes and seek a win-win solution through coordination. This is vital to international rule of law. The formulation, interpretation and application of international law should all be conducive to this goal. Under no circumstances should we inflate the arrogance of hegemonism and power politics, still less use international rule of law to instigate disagreement and friction,for it will only lead us to a wrong direction.

Indeed, in its call for universally applicable principles, democratic lawmaking, and the use of law to restrain strong states from taking advantage of the weak, the Chinese Communist Party is invoking a version of rule of law that many Westerners would be familiar with.  It will be interesting to see if this conception bleeds over into the Party’s push for domestic rule of/by law reform.

 

Why “Lawfare” Won’t Deter China in the South China Sea

by Julian Ku

Harry J. Kazianis, the managing editor of The National Interest, has a smart post discussing the risk that the U.S. is taking if it tries to take more aggressive action to counter China in the South China Sea.  Essentially, he argues the U.S. has no effective strategy to counter China’s “non-kinetic” strategy to subtly alter the status quo by using non-military assets to expand control and influence in the region.  I agreed with Kazianis all the way until he offered his own solution:

There only seems one solution to the various territorial disputes in the region—specifically, what some are calling “lawfare.” All of the various claimants that have disputes with China in the South China Sea should appeal collectively to any and all international bodies that could possibly hear their claims. Only together can they hope to get Beijing to halt its aggressive actions.

He goes on to cite the Philippines claim against China in the UN Law of the Sea arbitration system as a possible model for other nations.

“Lawfare” or international law litigation is not going to be an effective counter to China here for at least two reasons (one legal, one policy-based):

  • 1) China has opted out of any “compulsory” system of international dispute resolution that would rule on its territorial claims in the South China Sea (or anywhere, for that matter).  This “opt-out” is perfectly legal and may very well prevent the Philippines from even making their full case to the UNCLOS arbitration tribunal.  There are no other legal institutions that have jurisdiction.  So the only way “lawfare” can work here is if China consents to arbitration. But if Kazianis is right that this is a strategy by China’s neighbors to block its expansion, then why would China ever agree to arbitration?
  • 2) Even if compulsory jurisdiction were somehow found in one of these international bodies, there is very little chance that China would feel compelled to comply with any negative ruling.  This is not a China-specific problem, but rather a problem almost every country faces when considering arbitration over territorial disputes.  The effectiveness of tribunals in these contexts is highly limited since they depend for enforcement on the individual state-parties.  This is why voluntary arbitration tends to work better than compulsory arbitration in these kinds of territorial disputes.  The U.S. and Canada, for example, have managed to settle (most of) their often contentious land and maritime borders through a combination of non-arbitral commissions, and then special bilateral arbitrations.  In the famous “Gulf of Maine” case, the U.S. Senate actually approved a special treaty with Canada to send a maritime dispute to a special chamber of the ICJ.  Although clunky, this model is far more likely to succeed in getting state compliance.

So while I agree with Kanianis and other commentators that China needs to be deterred from its current strategy in the South China Sea, I am fairly confident the use of “lawfare” will not be a way to accomplish this goal.

Game On, Again? Vietnam Planning to File Legal Action Against China Over South China Sea Dispute

by Julian Ku

There have been lots of reports out in the last 24 hours saying that the Government of Vietnam is planning to take legal action against China for its movement of an oil rig into disputed waters in the South China Sea.  Indeed, the Philippines Government has stated that Vietnam has consulted it about its ongoing arbitration case against China and the two nations issued a joint statement of solidarity opposing China’s actions in the South China Sea.

What would the Vietnam legal action look like? The most likely action would be to seek arbitration under Annex VII of UNCLOS, just as the Philippines has done.  Of course, China would have the same defense and likely the same reaction to any Vietnam claim: that China’s Article 298 declaration excluding disputes over matters involving “sea boundary delimitations”or “involving historic bays or titles….” would exclude jurisdiction.  Moreover, China might further argue that Article 298 also allows it exclude “disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service, and disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction….”

At first glance, I can’t see how Vietnam’s claim would be any better or worse than that of the Philippines with respect to jurisdiction.  Vietnam has the same objection to China’s Nine Dash Line, and Vietnam similarly argues certain South China Sea features claimed by China are not “islands” for purposes of UNCLOS entitled to an Exclusive Economic Zone.  So I think we will see a rerun of the Philippines arbitration.  Vietnam will constitute a tribunal, China will not participate, and away it goes.

Some other reports out of Vietnam suggest it will file a claim with the International Court of Justice, if only to show their good faith, even though the ICJ has no jurisdiction over China.  I don’t think this is a great strategy, but maybe it will be a useful diplomatic showcase.

Finally, there are reports Vietnam will allow its state-owned oil company to file an action against China’s state-owned oil company in Vietnamese courts.  This actually seems like an interesting idea, since once the Vietnamese company won the judgment, it could in theory try to enforce it against the assets of the Chinese company overseas.  It is not a slam-dunk, but it certainly could be a plausible claim.

I am doubtful that  an additional arbitration will lead to China backing down.  Certainly, the Philippines arbitration has not caused China to moderate its behavior toward the Philippines.   The extra added pressure of  a Vietnam arbitration is not huge, and my guess is that China will continue to simply ignore the arbitrations, reputational costs be damned.  I am not saying that it is bad strategy for Vietnam to try the arbitration route, but Vietnam should be realistic about the veryreal costs, and limited benefits of this strategy.

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