Guide to countering China spin on South China Sea arbitration

A commentary

(LawFare) The United Nations Convention on the Law of the Sea (UNCLOS) arbitral tribunal will soon release its long-awaited award in Philippines v. China. China has already said it will not comply with the award, but it is clearly worried that a negative award will isolate China diplomatically or weaken its future claims in the region. So China's diplomatic and global media assets have already been hard at work de-legitimatizing the not-yet-released award (which makes many wonder if China's cyber-spies have already reviewed drafts of it).

Although China has reasonable legal arguments supporting its objection to jurisdiction, its recent efforts to undermine the legitimacy of the arbitral tribunal and the entire UNCLOS process are very far from reasonable. So as public service to readers, I offer a few short responses to rebut talking points spouted by any Chinese diplomats or PR hacks you happen to run into.

1. Both parties' consent is NOT required for a compulsory arbitration under UNCLOS

Chinese government spokesmen and their supporters have repeatedly criticized the Philippines's arbitration as “unilateral.” They have also repeatedly intimated that the arbitration is “illegal” because the Philippines did not get China's consent before starting the arbitration process. Some Chinese government officials have invoked the 1970 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation to suggest that both parties must agree on the rules of dispute settlement before any arbitration may proceed.

On its face, this argument has no legal basis. The 1970 Declaration cannot override specific later-in-time treaty provisions, like UNCLOS (which China signed and ratified). Under Article 286 of UNCLOS, “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” (emphasis added). This is the classic language of compulsory dispute resolution: “any” party—as opposed to “both” parties—can submit a dispute to court or tribunal. It is true that many international treaties create optional arbitration regimes where both parties must consent before any arbitration may be initiated. But the whole idea of UNCLOS was to depart from that norm in order to force nations to pre-commit to compulsory arbitration without knowing what the particular dispute involved.

The Chinese government's position seems to be that the tribunal has no jurisdiction, and therefore the compulsory dispute resolution procedures of the UNCLOS do not apply. Therefore, they argue that China must consent to any binding arbitration. But this position assumes China is correct about the scope of the tribunal's jurisdiction. Because the tribunal has exercised its powers under Article 288(4) to determine that it has jurisdiction over the dispute, then China is bound whether or not it has consented to this particular arbitration.

2. Ignoring the tribunal's award does not 'uphold' international law

One of the odder arguments put forth by China and its PR organs is that China's boycott of the arbitral tribunal is necessary “to safeguard the international rule of law.” Or, as its leading state-run newspaper the People's Daily has put it, China's boycott “is the righteous act China has taken to defend the legitimate rights and interests of a State Party to UNCLOS and to uphold the authority and sanctity of this international instrument.”

It is hard to know what to make of this argument. The idea here is that if China complies with an arbitral award that exceeded the jurisdiction of UNCLOS, such compliance would somehow undermine the international legal system more generally. I suppose there is some danger that other state-parties to UNCLOS would have their maritime and territorial interests wrongly allocated to international dispute resolution, but I don't imagine this is a great danger to the international legal system. Most other states that are party to UNCLOS have even granted arbitral tribunals the explicit power to adjudicate maritime boundaries, so I doubt an award against China would bother those countries very much.

China is ignoring the cost to the international legal system of its own “non-acceptance and non-participation.”

In any event, China is ignoring the cost to the international legal system of its own “non-acceptance and non-participation.” As I've noted earlier, the UNCLOS dispute settlement system is designed to require states-parties to submit disputes to an elaborate arbitration and judicial system. It even provides explicitly for situations where one party refuses to participate (as China has done here) due to objections to jurisdiction. It reflects a strong commitment among the drafters of UNCLOS toward delegating almost all maritime related disputes to a third-party dispute settlement system.

China's non-participation and non-compliance may not destroy this system, but it is hard to see how it strengthens or safeguards it either. Future disputes sent to UNCLOS dispute settlement may now be subject to the “China” precedent, but that precedent will be unlikely to seen as a positive one upholding the “sanctity” of UNCLOS.

3. The appointment of the arbitration tribunal was not a Japanese conspiracy

In recent months, the Chinese government media, and even Chinese government officials, have stepped up the attacks on the arbitral tribunal. For instance, Xiao Jianguo, deputy director-general of the Department of Boundary and Ocean Affairs of the Chinese Foreign Ministry, has charged that "[t]he arbitral tribunal has actually become an agent of the Philippines…" In one of dozens of op-eds published in foreign newspapers by Chinese diplomats, the Chinese ambassador to Indonesia suggested the constitution of the tribunal itself is illegal or improper.

In a not so subtle invocation of the “nationalist” card, the good ambassador implies that a national of China's traditional rival Japan appointed the tribunal full of non-representative Europeans. In some corners of the Chinese-language web, Chinese nationalists have even suggested the role of the Japanese ITLOS president proves that this whole arbitration is a conspiracy hatched by Japanese Prime Minister Shinzo Abe.

The only reason then-ITLOS President Shunji Yanai was involved is because China refused to exercise its right to appoint a member of the tribunal and to participate in the appointment of three others.

But the ambassador (and his nationalist web-friends) omit an important fact. The only reason then-ITLOS President Shunji Yanai was involved is because China refused to exercise its right to appoint a member of the tribunal and to participate in the appointment of three others. Because of China's boycott of the entire proceedings, Article 3 of UNCLOS Annex VII empowers the president of ITLOS to appoint members of the tribunal if one party refuse to participate. This power accrues to him only because of China's boycott.

4. The arbitral tribunal has treated China fairly

From my vantage point, the tribunal has bent over backwards to accommodate China, even though China has pointedly refused to participate in the process. Early on in the arbitration, a member of the tribunal from Sri Lanka recused himself because his wife is a Filipino national. The new president of ITLOS appointed a replacement arbitrator. No strict rules required this replacement, but it was done to avoid even the thinnest veneer of bias.

The tribunal repeatedly stated that China was welcome to participate or submit briefs, and set deadlines that gave China as much time (if not more) than the Philippines. When China released a “position paper” reflecting its arguments on jurisdiction, the tribunal reviewed those arguments as part of its decision on jurisdiction, even though it had no obligation to do so.

In sum, China may well have prevailed on its jurisdictional argument if it had exercised its rights to participate in the appointment of arbitrator and to present arguments to the tribunal in both written and oral form. But China decided to simply boycott the arbitration completely, so we will never know. While I do not condemn China for refusing to participate in the arbitration, I do condemn its not-so-subtle attempts to smear an arbitral process which it had every opportunity to participate in. China has not been treated unfairly by the UNCLOS arbitration process, and informed observers should not let China get away with claiming otherwise.

Julian Ku is the Maurice A. Deane Distinguished Professor of Constitutional Law at Hofstra University School of Law in New York. He is a co-founder of Opinio Juris, the leading blog on international law. Philstar.com has been granted permission by LawFare to republish the piece, which first appeared on its blog.