23 Jan Will China Participate in the UNCLOS Arbitration with the Philippines?
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.
Maybe we should see the arbitration as a signal by the Philippines – a powerful signal – to the Chinese that they mean business. It would be foolish for the Chinese not to appoint an arbitrator on the panel – self-defeating in my opinion – whatever their stand on jurisdiction or the mertis. I would imagine they are lawyering up at this time.
This is the kind of case where a request for abeyance might happen for the parties to reenter discussions that broke down – causing the Philippines to use this signal.
China is confronted with a situation that reminds me of the US with regard to Nicaragua at the ICJ or even the Medellin space. How in conformity with rule of law will China act – and what does rule of law mean in this setting.
Best,
Ben
Annex VII to the Convention provides some points of reference with regards to: (i) selection of arbitrators (Para. 3), and (ii) what happens if China fails to defend its case (Para. 9). Of particular note is the fact that the failure of one party to appear does not bar the tribunal from rendering a decision. http://www.un.org/depts/los/convention_agreements/texts/unclos/annex7.htm
For what it’s worth, the Chinese foreign ministry’s spokespersons’ comment quoted above could have been made last week, last year or five years ago. It is the standard formula the Chinese government repeats if it does not want to say anything else.
Other than that, whatever China’s response is going to be, it will take care that it is seen as being in conformity with international law, not only because it is party to UNCLOS, but also because it has often repeated its commitments, albeit in non-binding types of declarations such as the Declaration of Conduct of Parties in the the South China Sea (http://www.asean.org/asean/external-relations/china/item/declaration-on-the-conduct-of-parties-in-the-south-china-sea) of 4 November 2002, which is mostly a statement of peaceful intent of the ASEAN member states and China, but also contains numerous references to UNCLOS. Most relevant is par. 4: “The Parties concerned undertake to resolve their territorial and jurisdictional disputes by peaceful means, without resorting to the threat or use of force, through friendly consultations and negotiations by sovereign states directly concerned, in accordance with universally recognized principles of international law, including the 1982 UN Convention on the Law of the Sea”.