Foreign Relations & International Law

The U.S. Should Hold Its Fire Over China’s Boycott of UNCLOS Arbitration

Julian Ku
Thursday, November 26, 2015, 7:27 AM

An Arbitral Tribunal seated at the Permanent Court of Arbitration at The Hague is set to hold oral hearings this week on the merits of the Philippines’ South China Sea claims against China. China continues to insist it is not bound by the Arbitral Tribunal’s holdings, and the U.S.

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An Arbitral Tribunal seated at the Permanent Court of Arbitration at The Hague is set to hold oral hearings this week on the merits of the Philippines’ South China Sea claims against China. China continues to insist it is not bound by the Arbitral Tribunal’s holdings, and the U.S. and other countries have criticized China for failing to abide by the Arbitral Tribunal and by “international law.” Although it is true that China has a very weak legal position in the case, the U.S. should be cautious before jumping too far onto the Philippines’ lawfare bandwagon.

First, as a legal matter, China is clearly and unequivocally wrong to claim it is not bound by the Arbitral Tribunal’s rulings. The Philippines, under the authority of the UN Convention on the Law of the Sea, is seeking to legally invalidate several of China’s activities and claims in the South China Sea. (For more background, see Jay Batongbacal’s excellent background here). From the outset, China has refused to participate in any of the Tribunal’s proceedings; it refused to reply to the Philippines’ Statement of Claim, to appoint arbitrators for the Tribunal’s panel, to submit written arguments when invited, or to show up at the Tribunal’s hearings on jurisdiction. China has maintained from the outset that it “will neither accept nor participate in the arbitration” and that the Tribunal lacks jurisdiction because China has opted out of disputes “relating to sea boundary delimitations….”

In October, the Arbitral Tribunal ruled that it did have the jurisdiction to proceed to the merits of the Philippines’ claims, and indeed, it is holding hearings this week in anticipation of a final award on the merits sometime in 2016. Still China’s reaction remains the same. Here is the latest from its foreign ministry:

In an attempt to negate China's territorial sovereignty and maritime rights and interests in the South China Sea, the Philippine side unilaterally initiated the arbitration in breach of bilateral consensus with China and its commitment in the Declaration on the Conduct of Parties in the South China Sea (DOC). Our position is crystal clear: we will neither accept nor participate in the arbitration.

Various versions of this statement have been repeated by the Chinese government over the past two and half years. Legally, China is on very weak ground for the following reasons

  • The Philippines has every right to “unilaterally” initiate an arbitration under UNCLOS. The treaty does not require consent of the other state before filing an arbitration. Indeed, it is designed to avoid that need. See Article 286, “ any dispute concerning the interpretation or application of this Convention shall…be submitted at the request of any party to the dispute to the court or tribunal having jurisdiction under this section.” There is no requirement that the Philippines (“any party”) obtain the consent of another party before submitting a dispute.
  • The Chinese emphasis on “bilateral consensus” and the “Declaration” makes it sound like the Philippines promised never to seek arbitration in any South China Sea related dispute. But, at best, the Philippines promised to “exercise self restraint” in activities that would “complicate or escalate disputes.” As the Tribunal ruled, this language could hardly be read to foreclose arbitration.
  • Finally, when China signed UNCLOS, it also agreed to Art. 288(4) that “[i]n 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.” China is therefore bound by the tribunal’s decisions on jurisdiction, even if China disagrees.

Though China’s weak legal response to the Tribunals’ ruling on jurisdiction merits criticism, I am not sure the U.S. should be leading the criticism of China’s arguments here. Indeed, it is hard to see how even a complete legal victory for the Philippines will benefit the U.S. or the Philippines in their confrontation of China’s activities in the South China Sea.

For instance, while China has taken a reputational injury as a result of its reaction to the Philippines’ arbitration claim, this injury has not led China to back down from its activities in the South China Sea. Indeed, China’s controversial land reclamation activities began in August 2014, eighteen months after the arbitration was filed in January 2013. In other words, there is little evidence that the arbitration has deterred China from engaging in the type of activities that the Philippines wants stopped. China continues to patrol the South China Sea with its coast guard, and at times, it has detained Vietnamese fisherman and it prevented Filipino fisherman from using the Scarborough Shoal. It has now established several artificial islands which will allow it to base military aircraft in the region.

If, as seems likely, the Tribunal issues an award declaring that several of the land features China is occupying grant no maritime rights, China will simply ignore the award and continue to operate in exactly the same manner. Although the Philippines and other interested states like Vietnam will surely demand China’s compliance, it is difficult to imagine China acceding to these demands absent additional pressure.

In theory, the U.S. could provide some additional pressure in the form of US Freedom of Navigation operations that follow the Tribunal’s legal interpretations. For instance, if the Tribunal rules that a particular reef China is occupying is neither a rock nor an island, the U.S. might sail or fly—without limiting itself to innocent passage—and thus disregarding China’s claimed entitlement to a 12 nm territorial sea.

But for the U.S., this too is a fraught strategy. First, the U.S. has itself been willing to ignore international tribunal rulings that it believed were incorrect or unfair, or even inconvenient. It did so most recently in 2008 when the U.S. failed to stop executions of certain Mexican nationals despite an ICJ ruling to the contrary. While ignoring the ICJ may have, in fact, been the correct decision under U.S. law, it would be awkward for the U.S. to now set itself up as the enforcer of the Arbitral Tribunal’s award.

Moreover, the U.S. has not itself joined UNCLOS, in part because of quite reasonable concerns over small countries abusing the dispute settlement process. If the U.S. joined UNCLOS, it too would be subject to the jurisdictional determinations of an Arbitral Tribunal that it may very well disagree with. It could easily sit in China’s position in a future case, and might also choose to ignore an UNCLOS arbitral ruling.

Finally, lambasting China over its failure to comply with UNCLOS procedures might actually push China to follow the U.S. example and withdraw from UNCLOS. This would allow China to claim the applicability of UNCLOS law as a matter of substantive international law but avoid compulsory legal procedures like arbitration—precisely the way the US does.

For this reason, the U.S. should be circumspect in its criticism of China’s reaction to the Tribunal. China is indeed disrespecting its obligations under UNCLOS to settle its disputes through arbitration. But that is far from the worst or most dangerous act China has done in the South China Sea. The U.S. should focus its criticism and response on island building rather than arbitral procedures. Otherwise the U.S., and the Philippines, might end up with a worse result than had the arbitration never been brought.

Julian Ku is the Maurice A. Deane Distinguished Professor of Constitutional Law at Hofstra University School of Law. He is a co-founder of Opinio Juris, the leading blog on international law.

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