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Tuesday, February 19, 2013

China rejects arbitration with Philippines under UNCLOS; can it?

The news today is that China has rejected - or more accurately, purported to reject - the Philippines' attempt to resolve a dispute over sovereignty (over the Nansha Islands in the South China Sea) through arbitration under the UN Convention on the Law of the Sea. According to the Philippines' Department of Foreign Affairs, "The Department received this afternoon from Chinese Ambassador to the Philippines Ma Keqing a Note Verbale stating that China rejects and returns the Philippines’ Notification and Statement of Claim."

The Department goes on to say, "In its Note Verbale, China reiterated its often stated position that it has indisputable sovereignty over the entire South China Sea encompassed by its 9-dash line claim." This is interesting, if true. One perplexing aspect of the 9-dash line, which dates from the late 1940s when China was under Chiang Kai-shek's Kuomintang, is that successive Chinese governments have refused to say exactly what they mean by drawing it. Are they claiming, for example, that all islands within the line are Chinese, which would imply territorial waters 12 miles out from each island (and an Exclusive Economic Zone of 200 miles) but no further? Or are they claiming that the entire South China Sea is in effect a Chinese lake? The Chinese report of the rejection states only that China claims sovereignty over the Nansha Islands "and their adjacent waters." This is a more limited claim than the one the Philippines' government is reporting.

In any case, what I want to write about is the legal effect of China's rejection upon the arbitration proceedings. As far as I can see, it has no effect at all. According to China's Global Times, "The international court would not take the case without agreements from all parties involved, Dong Manyuan, a researcher at the China Institute of International Studies, told the Global Times." Sorry. No. Read your UNCLOS again. The proceedings do not require the agreement of both parties; or more accurately, each defendant has already agreed in advance to arbitration by the mere fact of joining UNCLOS. The Philippines has, pursuant to Article 286 and 287(1)(c), requested the formation of an arbitral tribunal under Annex VII. And Annex VII makes clear that the failure of a state to show up and cooperate does not bring the proceedings to a halt; they go on without it.

China's argument that the Philippines' notice of arbitration is factually flawed and contains false accusations is of course bogus; you don't get to reject otherwise justified proceedings against you just because you don't agree with the charges. Of course you don't agree with the charges; that's why arbitration is necessary.

As I read the Xinhua report of China's rejection, China also seems to be arguing that the Philippines is precluded from bringing this type of action because of obligations it has undertaken in other international agreements, specifically, the Declaration on the Conductof Parties in the South China Sea. For this argument to work, it would have to be true that (a) the Philippines has indeed undertaken contradictory obligations, and (b) those obligations, under international law as recognized by the UNCLOS arbitral tribunal, will trump its rights under UNCLOS. I have no informed (or even uninformed) opinion about whether either part of this argument is sound. But I suspect that these questions must themselves be resolved in the arbitration proceedings.

It's going to put China in an awkward position if it loses and simply blows off its treaty obligation to respect the arbitration decision.

[UPDATE: For a cogent analysis that's congruent with this one but discusses somewhat different issues, see Julian Ku's post here at Opinio Juris. In an earlier post, Prof. Ku argues that China may have a pretty strong jurisdictional claim. But typically arbitration panels decide their own jurisdiction to decide, so it's risky to refuse to appear and make that argument.]

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Comments

The researcher commenting in the Global Times is actually right. When China ratified UNCLOS, it made a reservation which excludes all forms of dispute settlement in section 2 of part XV of UNCLOS (see http://www.un.org/Depts/los/convention_agreements/convention_declarations.htm#China%20Upon%20ratification). These kinds of reservations, although unfortunate for those in favour of increased international adjudication, are perfectly legal and it therefore does seem that the arbitral panel is without jurisdiction.

Posted by: Wim Muller | Feb 20, 2013 2:23:25 PM

A correction to my earlier post: China made the Declaration in which it does not accept the dispute settlement provisions of UNCLOS (which would normally be a reservation) ten years after ratification, which raises issues under treaty law; most likely the Declaration is invalid, but the question is who decides.

Posted by: Wim Muller | Feb 20, 2013 3:28:14 PM

Sorry but China made a reservation when ractifying UNCLOS and expressly does not accept the compulsory dispute settlement regime under s 287.

Posted by: Jianfu Chu | Feb 22, 2013 10:56:57 AM

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