After the Chinese snub

Last Feb. 19, the Chinese Foreign Ministry, through Ambassador Ma Keqing, sent a diplomatic note to our Department of Foreign Affairs that it was rejecting the Philippine notice to arbitrate and the statement of claims on the West Philippine Sea controversy. This was the arbitration resorted to by the Philippines to challenge the legality of China’s nine-dash lines under the compulsory and mandatory dispute settlement procedure of the UN Convention on the Law of the Sea (Unclos). This effectively means that China has snubbed the arbitration and will not participate in the proceedings.

This is truly unfortunate. China has repeatedly maintained that it exercises “undisputable sovereignty and rights” in the waters within what it refers to as its “nine-dash lines” in the West Philippine Sea, the second busiest sea lane in the world. And yet, it has failed to explain the nature and the basis of its claims. The arbitration would have been the appropriate forum where it can regale the rest of the world with both its legal and factual basis for its claim on these troubled waters believed  to contain anywhere from 1 billion to 200 billion barrels of oil and natural gas reserves. With its latest decision to ignore the arbitration request, China has again left the entire world, and not just the Philippines, to guess what, if any, is its legal basis to these waters.

The arbitration initiated under Annex VII of the Unclos will of course proceed. The Philippines has appointed a former president of the International Tribunal for the Law of the Sea (Itlos) and one of its sitting judges, German national Rüdiger Wolfrum, as its arbitrator for the proceedings. China’s snub now makes it incumbent on the current president of the Itlos, Shunji Yanai, a Japanese national, to complete the five-person tribunal.

Pundits have said that China’s refusal to participate will be contrary to its own interest. First, it leaves the decision on who will comprise a majority of the tribunal to a longtime Japanese diplomat, even if he is today president of the Itlos. Japan itself has ongoing maritime disputes with China, and while judges of international tribunals are expected to be independent, human experience dictates that they cannot completely be disinterested. Furthermore, a Chinese journal has warned that China should not take the Philippine arbitration lightly. Citing an unnamed expert, China was advised  that “the Philippines is using this arbitration to gain support and sympathy from its neighbors [Vietnam is supporting it] and its allies [US Secretary of State John Kerry and the EU Parliament head support it]”. The claim, according to this expert, also “hypes suspicions of China at the United Nations and elsewhere.”

The Unclos provides that all controversies relating to issues of “application and interpretation” under it shall be submitted to its compulsory and mandatory dispute settlement procedure. Under this provision, state parties may choose to submit these issues either to the International Court of Justice, the Itlos, and, in default of an express choice, through binding arbitration. Although the Unclos itself does not say so, still it is axiomatic in the field of arbitration that only the Itlos can rule on its own competence.

Here, the first task for the tribunal will be to determine if the issues submitted by the Philippines for arbitration—the legality of the nine-dash lines, whether certain low-tide elevations in the disputed Spratly group of islands should be adjudged as part of the Philippine continental shelf, as well as the issue of the nature of the waters in the disputed Panatag shoal beyond its territorial sea of 12 nautical miles—fall within the reservations made by China. A reservation is a unilateral declaration that certain subject matters should not fall within the dispute settlement procedures of the Unclos. In the case of China, it opted out of the dispute settlement procedure for issues under 1 (a) (b) and (c) of Article 298 of the Unclos. These include disputes involving maritime delimitation; military activities, including military activities by government vessels and aircraft engaged in noncommercial service; and disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction.

While arbitral tribunals go to great lengths in ruling on its own competence to convince parties to the proceedings to eventually voluntarily comply with its award, the reality is that the Chinese snub may have made our task of procuring a favorable ruling from the Itlos easier. For while the Itlos will still labor to issue a decision which it would want the world and China to believe is correct and sound, the reality is that unopposed litigious claims are always less cumbersome than disputed ones. We may yet thank China for its snub.

H. Harry L. Roque Jr. is the director of the UP Law Center’s Institute of International Legal Studies.