South China or West Philippine Sea? United Nations Convention on the Law of the Sea (UNCLOS) and International Arbitration

Sam Fitzpatrick, Vol. 36 Associate Editor

On January 23, 2013, the Republic of the Philippines initiated binding arbitration in the Permanent Court of Arbitration after exhausting diplomatic and political remedies to resolve its dispute with China over the South China Sea.[1]  The Philippine’s memorial requested that the Permanent Court of Arbitration, in accordance with Annex VII of UNCLOS as administered by the International Tribunal of the Law of the Sea (ITLOS), arbitrate a dispute of maritime rights between the Republic of the Philippines and the People’s Republic of China.[2]  Specifically, the Philippines requested that the court determine the boundary between China’s historic “nine dash” claim to exclusive control over the islands and water in the South China Sea and the 200 mile exclusive economic zone off the coast of the Philippines.[3]  The overlap between these maritime claims has caused considerable and increasing diplomatic tension and confrontations between Philippine and Chinese naval vessels and fishermen over the past 20 years.[4] Competing Claims to the South China/West Philippine Sea The Philippines based their request for arbitration on the terms of the United Nations Convention on the Law of the Seas.[5]  Both China and the Philippines along with Vietnam, Brunei, Indonesia and Malaysia (all the nations bordering the South China Sea except Taiwan) are signatories to the UNCLOS.[6]  The Treaty provides detailed terms for establishing maritime boundaries and adjudicating maritime disputes among signatories.[7]  According to the Philippines, the terms of the UNCLOS treaty forecloses China’s expansive nine dash claim (originally asserted by the Republic of China in 1948).[8]  The Philippines seeks relief for this alleged Chinese encroachment through the UNCLOS arbitration panel.[9] China, on the other hand, bases its claim to sovereignty over the waters in the South China Sea on historical claims.[10]  China claims to have originally discovered several islands in the South China Sea and has exploited the territory’s resources for centuries; China’s exact legal claim, however, remains difficult to determine.[11]  For example, the Chinese Foreign Minister, responding to the Philippine request for international arbitration, asserted that “China has indisputable sovereignty over [the Spratly Islands] and their adjacent waters.”[12]  China has offered no genuine legal rationale for its position under UNCLOS or any other treaty.   Instead, China asserts its sovereignty as “indisputable” and “historical” and not subject to UNCLOS jurisdiction.[13] China’s Refusal to Submit to Arbitration Although China ratified UNCLOS in 1996, China claims exemption from compulsory process based on a 2006 letter China submitted to UNCLOS rejecting the mandatory arbitration provisions of the treaty.[14]  Regardless of the merits of China’s claim to exemption and the merits of each country’s claim to territorial and maritime rights in the South China Sea, one thing is absolutely clear: China will not consent to arbitration and adamantly refuses to be bound by the decisions of the arbitration panel. [15] Some commentators believe that China’s weak legal position motivates the refusal to submit to arbitration.[16] As noted, China justifies its claim to territorial and maritime rights in the South China Sea on historical sovereign control.  The relevant positive law (UNCLOS), however, does not support China’s position and China may well receive an unfavorable ruling at arbitration. China, however, also knows that the arbitration tribunal has a limited ability to enforce any decision.  China further understands that it has a veto in the Security Council, so the only possible mechanism for United Nations enforcement  of an unfavorable arbitration decision could be blocked by China.  As a result, China prefers to keep the dispute out of the jurisdiction of UNCLOS and in the traditional realm of state-to-state negotiations, where China can convince or coerce neighboring states to abandon their claims or at a minimum maintain the status quo, which favors China’s status as the dominant regional power.[17] A Right Without a Remedy? China’s steadfast refusal to submit to an international treaty that it signed will have several negative repercussions for China.  First of all, China’s refusal to submit to the terms of the UNCLOS treaty, including binding arbitration, will further turn international opinion against Chinese claims in the South China Sea.  The fact that the Philippines challenged China in an international forum has already bolstered support for the Philippines among China’s neighbors and eroded support for China.[18]  A favorable decision from the arbitration panel would build on this momentum by adding legal support to moral support.  If the arbitration panel rules in favor of the Philippines then the Philippines will be able to show China, China’s neighbors and the world community that international law unambiguously supports the Philippines’ position. Second, a decision from the arbitration panel favorable to the Philippines would encourage other states suffering from Chinese encroachment to bring similar claims.  Even if not initially enforced, the UNCLOS arbitration may inspire similar claims from Vietnam, Malaysia, Brunei and Japan that also push back on China’s claims to sovereign control according to Chiang Kai-shek’s nine dash line.[19]  A multitude of regional claims that reject Chinese dominance over the South China Sea will gain strength in numbers and make China’s legal position increasing untenable.  China will have a more difficult time ignoring several unfavorable arbitration decisions than ignoring the Philippines alone. In addition, China’s refusal to recognize and give legal effect to an international obligation to submit to binding arbitration will harm China’s ability to enter into future international obligations.  China’s continued refusal to live up to its obligations under the UNCLOS treaty will make states wary of entering into treaties with China for fear that China will simply ignore treaty obligations when more expedient.  This could result in economic harm, as the continued uncertainty and tension with China’s neighbors hampers trade and investment in the region.  Moreover, China’s continued refusal to submit to arbitration will erode China’s international standing and rise as a global leader that takes international commitments seriously.   The Future of International Arbitration Ultimately, neither the UN, the arbitration panel, nor the Philippines can force China to live up to its treaty obligations.  But, over time China may realize through rational self-interest that the benefits of adhering to international law outweigh the harm caused by disregarding international law.

1. Jay Batongbacal, Arbitration 101: Philippines v. China, Asia Maritime Transparency Initiative (Jan. 21, 2015), http://amti.csis.org/arbitration-101-philippines-v-china/.

2. Id.

3. Robert Beckman, The UN Convention on the Law of the Sea and the Maritime Disputes in the South China Sea, 107 Am. J. of Int’l L. 142, 154 (Jan. 2013).

4. See Shannon Tiezzi, The Philippines’ UNCLOS Claim and the PR Battle Against China, The Diplomat (Apr. 01, 2014), http://thediplomat.com/2014/04/the-philippines-unclos-claim-and-the-pr-battle-against-china/.

5. Batongbacal, supra note 1.

6. Beckman, supra note 3, at 142.

7. Sienho Yee, The South China Sea Arbitration (The Philippines v. China): Potential Jurisdictional Obstacles or Objections, 13 Chinese J. Int’l L. 663, 664 (2014).

8. Kamrul Hossain, The UNCLOS and the US-China Hegemonic Competition Over the South China Sea, 6 J. E. Asia & Int’l L. 107, 114 (2013).

9. Batongbacal, supra note 1.

10. Hossain, supra note 8, at 114.

11. Id.

12. Tiezzi, supra note 4.

13. Hossain, supra note 8, at 114; see also, Yu Mincai, China’s Response to the Compulsory Arbitration on the South China Sea Dispute: Legal Effects and Policy Options, Ocean Development and Int’l Law 4 (2014).

14. Daniel Wagner & Edsel Tupaz, China, the Philippines and the Rule of Law, The World Post (Jan. 23, 2013), http://www.huffingtonpost.com/daniel-wagner/china-philippines-rule-law_b_2533736.html.

15. See Julian Ku, China and the Future of International Adjudication, 27 Md. J. Int’l L. 154, 166-67 (2012).

16. Jojo Malig, UNCLOS does not support China’s claims, US naval expert says, ABS-CBN News (June 6, 2013), http://www.abs-cbnnews.com/focus/06/06/13/unclos-does-not-support-chinas-claims-us-naval-expert-says.

17. See Ku, supra note 15, at 161-62.

18. Mira Rapp-Hooper, UNCLOS on Trial in the South China Sea, Lawfare (Jan. 24, 2015), http://www.lawfareblog.com/2015/01/unclos-on-trial-in-the-south-china-sea/.

19. Id.; see Hossain, supra note 8, at 118-19.