Saturday, February 23, 2013
Still more on China-Philippines UNCLOS arbitration: the significance of China's 2006 declaration against UNCLOS dispute settlement
Some commentators on my first post on this issue have raised the following objection:
First commenter: "Sorry but China made a reservation when ratifying UNCLOS and expressly does not accept the compulsory dispute settlement regime under s 287."
Second commenter: (a) "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."
Second commenter (b): "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."
I appreciate the comments, but don't agree with them. First, it is not crystal-clear that China's declaration in fact covers the current dispute. The Philippines was of course aware of China's declaration and strove to phrase its case in a way that avoided its effect. For an excellent analysis (with hyperlinks) of the effect of China's declaration and its applicability to this case (concluding that China has a good case but not an airtight one), see this blog post.
Second, and most important, is the issue raised in the last part of Second commenter (b)'s statement: "the question is who decides." Exactly. My point is that this is not in fact a question. The arbitral panel decides. The parties do not get to be judge in their own case even on issues of subject-matter jurisdiction. Once challenged, they have to make their arguments in front of an arbitral panel.
FYI: This blog says it all:
"It is quite funny that the Philippines has referred its dispute with China to the International Tribunal on the Law of the Sea. Legally, the disputes do not come under the UNCLOS – from either the Philippines or Chinese side. Philippines can’t make a long laundry list of reservations to protect its stakes and yet want to have its cake too by trying to bind China by imagined laws…
This is a political issue that deserves a diplomatic solution. China claims South China Seas based on history. It’s ironic to see today Philippines “hosting” French archeologists to study sunken Chinese ships in its alleged territorial waters. 2 I hope the Philippine side will understand the depth of Chinese claims and come to the table with a more sincere spirit, instead of playing legal games and trying to distract from the real work that needs to be done."
Posted by: Alek | Mar 8, 2014 9:24:46 PM