By Do Viet Cuong
November 03, 2015
The Hague-based Permanent Court of Arbitration (PCA) ruled on late Thursday (October 29, 2015) that it had jurisdiction over a case filed by the Philippines, which contests China’s claims to nearly 90 percent of the South China Sea.
In response to the aforementioned PCA’s decision, on October 30, 2015, China released the Statement of the Ministry of Foreign Affairs of the People’s Republic of China on the Award on Jurisdiction and Admissibility of the South China Sea Arbitration by the Arbitral Tribunal Established at the Request of the Republic of the Philippines (hereafter the Statement). Accordingly, China will disregard any findings by the PCA on the case brought by the Philippines, saying it is “null and void, and has no binding effect on China.”
While Beijing is entitled to its own view, it is clear that its statement lacks much basis in international law.
China’s non-acceptance of and non-participation in the arbitration
According to the Statement, China declared that the PCA’s ruling is “null and void” and has “no binding effect” that “elaborated on the legal grounds for China’s non-acceptance of and non-participation in the arbitration.” In other words, China is continuing to claim that it is not bound by the PCA for lack of jurisdiction, although the PCA has now found it has jurisdiction over the case.
In doing so, China is clearly ignoring the provision of Article 288(4) UNCLOS which reads: “In 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.”
With respect to this issue, it is worth recalling here Australia and New Zealand’s response on jurisdiction before the UNCLOS Annex VII Arbitral Tribunal in the Southern Bluefin Tuna Case, in which was stressed that:
“These provisions [Part XV of UNCLOS – Settlement of Disputes] clearly imply that a tribunal exercising jurisdiction to determine its jurisdiction under Article 288(4) of UNCLOS should lean in favour of the effectiveness and comprehensive character of the dispute settlement regime, itself a key aspect of the UNCLOS regime. It should not accept arguments which would minimise the effectiveness of Part XV, lending themselves to easy evasion of its provisions.”
It is also necessary to reiterate here that both the Philippines and China are parties to the UNCLOS, the Philippines having ratified the UNCLOS on May 8, 1984, and China on June 7, 1996. As stipulated at Article 287 UNCLOS, when there is a dispute arising, both parties must consent to the same procedure for settlement of dispute. However, if there is no agreement on procedures, then the dispute must go to binding arbitration. The arbitration’s award shall be final and without appeal, which shall be complied with by the parties to the dispute.
Being a State party to the UNCLOS, China “shall fulfill in good faith the obligations assumed under this Convention” as provided at Article 300 UNCLOS. The reference to good faith in Article 300 reflects Article 2(2) of the United Nations Charter and the fundamental rule of international law – namely pacta sunt servanda. The 1969 Vienna Convention on the Law of Treaties contains this rule in Article 26 which provides that “every treaty in force is binding on the parties to it and must be performed by them in good faith.”
In case of China’s non-participation in the arbitration, it does not bar the PCA from proceeding with the arbitration. Article 9 of Annex VII to the UNCLOS expressly addresses the situation of a non-participating party, providing that: “absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings.” Given this, China is still a party to the arbitration, and pursuant to the provisions of Article 296(1) UNCLOS and Article 11 of Annex VII, it shall be bound by any award the Tribunal issues.
Are the Tribunal and the Philippines abusing the arbitration mechanism and procedures?
In the Statement, China accused the Tribunal and the Philippines – which filed the case – of unilateral initiation and “abusing the compulsory procedures for dispute settlement under the UNCLOS.”
However, the PCA, as part of its decision on October 29, 2015, noted that the mere act of unilaterally initiating arbitration under Part XV of UNCLOS in itself cannot constitute an abuse of rights. In this regard, it recalls the following statement in Barbados v. Trinidad and Tobago Case:
“The unilateral invocation of the arbitration procedure cannot by itself be regarded as an abuse of right contrary to Article 300 of UNCLOS, or an abuse of right contrary to general international law. Article 286 confers a unilateral right, and its exercise unilaterally and without discussion or agreement with the other Party is a straightforward exercise of the right conferred by the treaty, in the manner there envisaged.”
Is the Philippines using the “cloak of law” as a political provocation?
According to the Statement, China accused the Philippines of being “obstinate” in “pushing forward of the South China Sea arbitration,” and that it was “a political provocation under the cloak of law.”
With regard to this point, it is interesting to emphasize that insofar as the proceedings have been politically inspired as a means of exerting pressure of a State, this does not affect the legal character of the dispute. In the Border and Transborder Armed Actions Case, the International Court of Justice (ICJ) stated that:
“The Court is aware that political aspects may be present in any legal disputes brought before it. The Court, as a judicial organ, is however only concerned to establish, first, that the dispute before it is a legal dispute, in the sense of a dispute capable of being settled by the application of principles and rules of international law, and secondly, that the Court has jurisdiction to deal with it, and that that jurisdiction is not fettered by any circumstance rendering the application inadmissible. The purpose of recourse to the Court is the peaceful settlement of such disputes; the Court’s judgment is a legal pronouncement, and it cannot concern itself with the political motivation which may lead a State at a particular time, or in particular circumstances, to choose judicial settlement.”
Turning to the Philippines v. China Case here, the PCA ruled that “the Tribunal is satisfied that disputes between the Parties concerning the interpretation and application of the Convention exist with respect to the matters raised by the Philippines in all of its Submissions in these proceedings,” in paragraph 178 of its decision. In other words, the requirement of there being a legal dispute would seem to be satisfied in thePhilippines v. China Case.
Given all this, it is clear that China’s statement has little basis in international law. For all China’s rhetoric in the Statement about Chinese rights under UNCLOS and international law, Beijing is ignoring several provisions therein and is trying to dismiss the ruling of an tribunal that is a product of that same international legal process. This is baseless, and it should not go uncontested.
Do Viet Cuong is a PhD Candidate in International Law at The Graduate Institute of International and Development Studies (IHEID), and University of Geneva, Switzerland, where he focuses on the law of the sea, environmental law and energy law. He is also a research associate at the Center for International Studies (SCIS) at the University of Social Sciences and Humanities in Ho Chi Minh City.
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