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China at Odds with U.N. Treaty

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China is rejecting the U.N. Law of the Sea treaty. Xinhua Photo

China is rejecting the U.N. Law of the Sea treaty. Xinhua Photo

On Jan. 22, Ma Keqing, the Chinese ambassador to the Philippines, was summoned to the Department of Foreign Affairs in Manila and handed a note verbale informing her that the Philippines was initiating a legal challenge to bring China before an arbitral ribunal under the terms of the U.N. Convention on Law of the Sea (UNCLOS).

The note verbale contained the official text of the Notification and Statement of Claim submitted to the United Nations by the Philippines. That document outlined the Philippine challenge to the validity of China’s claims to the South China Sea. The Philippines also called on China to desist from “unlawful activities that violate the sovereign rights and jurisdiction of the Philippines.” Under UNCLOS, China had 30 days to respond by notifying its nominee to the arbitral tribunal.

On 19 February, Ambassador Ma met with officials at the Department of Foreign Affairs and returned the Philippines’ Notification and Statement of Claim, thus rejecting it. A Chinese Foreign Ministry spokesman in Beijing said the Philippines’ Statement of Claim “was historically and legally incorrect and contained unacceptable accusations against China.”

UNCLOS and Binding Arbitration

Under UNCLOS Article 287, a state is free to choose one or more of four binding arbitration measures: International Tribunal for the Law of the Sea (ITLOS), International Court of Justice, arbitral tribunal, or a special arbitral tribunal. If parties to a dispute failed to issue a formal declaration specifying their choice of arbitration, under UNCLOS Article 287(3) they “shall be deemed to have accepted arbitration in accordance with Annex VII.” Because neither China nor the Philippines ever issued a formal declaration specifying their choice, their dispute became subject to arbitration by an arbitral tribunal.

Every state that ratifies UNCLOS is entitled to nominate four arbitrators to a list maintained by the U.N. Secretary General. An arbitral tribunal is generally composed of five people drawn from that list. Each party to a dispute is entitled to make one nomination and to jointly agree on the other three members, including the chairman.

Annex VII makes provisions for cases when a state fails to nominate its arbitrator within the 30-day period. After China’s rejection, the Philippines has two weeks to request that the president of ITLOS to make the necessary appointments of arbitrators from the approved list. The president has 30 days to make the necessary appointments.

When the arbitral tribunal is set up it determines its own procedures. Decisions are made by majority vote. The tribunal may hear the claim made by the Philippines even if China refuses to take part. Under Annex VII, Article 9: “If one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case, the other party may request the tribunal to continue the proceedings and to make its award. Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings. Before making its award, the arbitral tribunal must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law.”

The arbitral tribunal is required to confine its award “to the subject-matter of the dispute” and “the award shall be final and without appeal. . . . It shall be complied with by the parties to the dispute.” UNCLOS, however, does not contain any provisions for enforcement.

The Philippines’ Case

UNCLOS Part XV requires states to settle their disputes by peaceful means and to exchange views toward that end. The Philippines argues that it has continually exchanged views with China since 1995, when China occupied Mischief Reef. The Philippines’ Statement of Claim concludes, “over the past 17 years of such exchanges of views, all possibilities of a negotiated settlement have been explored and exhausted.”

In August 2006, China made a declaration of optional exceptions exempting itself from compulsory dispute procedures related to sea boundary delimitation (territorial sea, exclusive economic zone (EEZ) and continental shelf), military and law enforcement activities, and disputes involving the U.N. Security Council exercising its functions under the U.N. Charter. The Philippines was careful in its Notification and Statement of Claim to say it was not seeking arbitration over sovereignty disputes to islands or delimitation of maritime boundaries that China had excluded from arbitral jurisdiction. The Philippines claimed that its maritime disputes with China were “about the interpretation and application by States Parties of their obligations under the UNCLOS,” and therefore could be submitted for resolution.

What awards are the Philippines seeking from the arbitral tribunal? First, the Philippines sought an award that declared that the maritime areas claimed by China and the Philippines in the South China Sea are those established by UNCLOS and consisted of territorial sea, contiguous zone, EEZ, and continental shelf. On that basis, the Philippines requested the arbitral tribunal declare that China’s claims to the South China Sea were inconsistent with UNCLOS and invalid. Further, the Philippines requested that the arbitral tribunal require China to bring its domestic legislation into conformity with UNCLOS.

Second, the Philippines requested the arbitral tribunal to determine the legal status of features (islands, low-tide elevations and submerged banks) in the South China Sea claimed by China and the Philippines and whether these features were capable of generating an entitlement of a maritime zone greater than 12 nautical miles. The Philippines specifically listed Mischief Reef, McKennan Reef, Gaven Reef, Subi Reef, Johnson Reef, Cuarteron Reef, and Fiery Cross Reef and argued China claimed excessive maritime zones on the basis that these features were islands. The Philippines claimed these features were “submerged banks, reefs and low tide elevations that do not qualify as islands under UNCLOS, but are parts of the Philippines continental shelf, or the international seabed.” Under UNCLOS islands are entitled to a 200-nautical-mile EEZ and rocks to a 12-nm territorial sea.

Third, the Philippines argued that China interfered with the lawful exercise of the Philippines’ rights within and beyond its EEZ and continental shelf in contravention of UNCLOS. The Philippines requested the arbitral tribunal require China to desist from (1) its occupation of and activities on the features listed above, (2) interfering with Philippines’ vessels exploiting the living resources in waters adjacent to Scarborough Shoal and Johnson Reef, (3) exploiting the living and non-living resources within the Philippines’ EEZ and continental shelf, and (4) interfering in the Philippines’ freedom of navigation “within and beyond” the 200 nautical miles of the Philippines’ baselines.

Implications

If the arbitral tribunal accepts the Philippines’ Statement of Claim and rules in its favor, that would undermine China’s claim to “indisputable sovereignty” over the South China Sea. All other claimant states—Vietnam, Malaysia, and Brunei—would benefit from such an award. There is some risk, however. The Arbitral Tribunal could deliver a mixed award that favored the Philippines in some cases but which also entrenches China’s presence in others. A mixed award would affect the claims advanced by other littoral states, especially related to the legal status of the features that they occupy.

According to Philippine officials it could take up to three or four years for the arbitral tribunal to reach a decision. During that time China could further consolidate and expand its presence in waters claimed by the Philippines.

It remains an open question as to what impact the Philippines legal claim will have on the Association of Southeast Asian Nations and its efforts to implement confidence-building measures with China under the Declaration of Conduct of Parties in the South China Sea, and negotiate a legally binding Code of Conduct in the South China Sea.