China’s Ridiculously Weak Legal Argument Against Complying with the South China Sea Arbitration Award
By Julian Ku / June 6, 2016 / Lawfareblog
The forthcoming arbitral award in the dispute between the Philippines and China has become one of the most anticipated international judicial decisions in recent history, even dominating discussion at the ongoing Shangri-La Dialogue in Singapore. To weaken the legitimacy of any negative arbitral award, China has launched animpressive diplomatic and global public relations campaign denigrating the legal basis for the tribunal’s award. The Philippines has launched a much less impressive campaign in defense of the award that has mostly just asserted that China should “follow international law” without actually explaining why China’s legal arguments are wrong.
While I have expressed strong criticism of the Philippines’ use of arbitration (and the U.S. role in supporting it) from a strategic perspective, I don’t have any such criticism of their legal arguments. China’s claim that it can legally ignore the pending arbitral award is not only wrong, it is legally insupportable. But because this claim is repeated again and again by Chinese diplomats, scholars, and journalists, outside observers might find China’s legal arguments persuasive or at least plausible. Indeed, a former Singaporean foreign minister has said so just this week. So as a public service to journalists, policy analysts, and other non-lawyers, I offer a simple legal primer on why China has a very weak, or even ridiculous, argument for why it is allowed to legally boycott the South China Sea arbitration.
China claims that it has no duty to abide by the award of the UN arbitral tribunal because China has made a declaration limiting that tribunal’s jurisdiction to exclude “territorial or sovereignty” disputes. Indeed, Chinese officials have stated that defying the ruling is necessary in order to protect and uphold international law and have accused the Philippines of “violating” international law by bringing this proceeding.
This argument doesn’t fly for one very simple reason. It willfully ignores Article 288(4) of the UNCLOS, which states: “[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.” This provision means that the arbitral tribunal gets to determine whether or not China’s declaration excludes or limits their jurisdiction over the Philippines’ claims.
The arbitral tribunal in this case spent over a year considering just this question anddecided in a very long and thorough award that only seven of the Philippines’ claims clearly fall outside the scope of China’s declaration. This means that these seven claims do not involve or relate to maritime delimitation or sovereignty in a way that would fall within China’s declaration. The other eight claims, the tribunal decided, may fall within China’s declaration depending on the outcome of other legal determinations.
When China joined UNCLOS in 1996, it freely agreed to subject itself to compulsory dispute resolution under Article 296 (“Any decision rendered by a court or tribunal having jurisdiction under this section shall be final and shall be complied with by all the parties to the dispute) as well as Article 288(4) (“jurisdiction [shall be] settled by decision of that court or tribunal.”). Moreover, this type of provision is hardly unusual or unprecedented. China has agreed to similar provisions in the Convention on the Settlement of Investment Disputes (ICSID) (See Article 41) and the Statute of the International Court of Justice (see Article 34). This principle that a court or arbitration tribunal can determine its own jurisdiction goes back as far as the U.S.-U.K. “Alabama” arbitration in the 19th century. Read more...