A Fresh Chinese Critique of the South China Sea Arbitration Decision
Photo Credit: AFP
By Alvin Cheng-Hin Lim

A Fresh Chinese Critique of the South China Sea Arbitration Decision

May. 18, 2018  |     |  1 comments


In the two years following the July 2016 decision by a tribunal at the Permanent Court of Arbitration (PCA) at The Hague in the case of Philippines v. China on their South China Sea (SCS) dispute, international opinion has continued to recognize the arbitral award as a legitimate decision that informs international understanding of the complex disputes in the SCS. This is despite Beijing’s insistence that the arbitral award is an “illegal verdict” and that the Chinese government does “not accept any claim or action based on the award.” Even the Philippines, whose government under Rodrigo Duterte has downplayed the award in favor of greater cooperation with China, has not wholly rejected the award. As the Duterte administration has recently asserted: “We are not setting aside the tribunal victory which is in our favor.”


In legal terms, the arbitral award was a serious blow to Chinese claims to the SCS. Not only did the PCA tribunal invalidate China’s historic claims to the SCS, it found that “these historical claims had been superseded the moment China ratified the UN Convention on the Law of the Sea” (UNCLOS). The tribunal also ruled that “the territorial sea extending 12 nautical miles around the Scarborough Shoal is a common fishing ground … and that the use of force to prevent any country’s fishermen from the use of this common fishing ground would be a violation of their traditional fishing rights. The PCA tribunal also found Mischief Reef, Second Thomas Shoal, and Reed Bank to be low-tide features located within the EEZ of the Philippines.” In addition, the tribunal found the “damage to coral reefs and other fragile ecosystems” caused by China’s reclamation works in the SCS to be a “violation of China’s obligation, under UNCLOS, to preserve and protect marine habitats.”


The Chinese government had refused right from the start to participate in the arbitration proceedings, which the Philippine government under then-President Benigno Aquino III had initiated under UNCLOS. As Wang Jiangyu notes, this decision set the stage for the Philippines’ eventual arbitration victory: “If China participated in the process — at least in the hearings concerning jurisdiction and admissibility of the claims, it would be able to appoint at least one arbitrator, and block the appointment of the arbitrators that it believes to be unfriendly. Further, in accordance of the Rules of Procedure of the tribunal, it can challenge any arbitrator for whom it has justifiable doubts about his/her impartiality or independence. Unfortunately, as can be seen, in the current case, all the five arbitrators were appointed by The Philippines and the then ITLOS President, who is a Japanese national. China’s non-participation has also led to the loss of the opportunity to present its own case before the tribunal … To win a case or minimize the losses, a party must appear before the tribunal to present arguments and evidence. This is essential at least for the purpose of counterbalancing the case of the other party and influencing the deliberation of the tribunal.”


One of the reasons for Beijing’s decision not to participate in the arbitration proceedings was its then-lack of human resources in the relevant fields of international law. As Wu Shicun, the President of the National Institute for South China Sea Studies, explained in 2015: “The challenge facing China over the South China Sea is daunting and we don’t have enough experts that are familiar with international law regarding territorial disputes. If we can count on talented people with experience … we may be able to [satisfactorily] submit our claims to arbitration.”


As Patrick Renz and Frauke Heidemann explained at that time, it was important for China to develop its expertise in lawfare — the mastery of international law to fight for the interests of the nation in the global arena: “Greater expertise of international legal norms is a necessary next step for the rising power. China has considerable economic might and shows this with initiatives such as the Asian Infrastructure Investment Bank as well as its increasing willingness to take up a bigger role in global governance. With all this comes the need to understand the legal framework in which the global governance game is played.” It now appears that China’s efforts to nurture its lawfare arsenal has begun to bear fruit. A team of legal experts from the Chinese Society of International Law (CSIL) has just published a major critique of the PCA arbitral award in the Chinese Journal of International Law. However, given that the PCA arbitral award is final and cannot be appealed, is there any point to such critiques?


As Stefan Talmon points out, even though the arbitral award is “final,” with respect to its interpretation its effects need not be final: “China and other States may … take active steps to limit the effects of the award. State parties to a treaty can effectively overrule the interpretation of a treaty provision by an international court or tribunal by concluding a subsequent agreement regarding the interpretation of the treaty or the application of its provisions. Such an interpretative agreement may take many different forms, including unwritten consensus … While China may not be able to achieve an agreement overruling the tribunal’s interpretation of Article 121, it may encourage other States to maintain or adopt a legal position contradicting the tribunal’s finding. Such contrary State practice may sound a note of caution to other courts and tribunals not to ascribe any precedential value to the award of the tribunal in the South China Sea Arbitration when interpreting or applying Article 121 in the future” (Talmon, 2017, pp. 400-401).


In their comprehensive critique of the PCA arbitral award which spans over 500 pages, the CSIL (2018) argues that “the Tribunal failed to discharge its duty to satisfy itself that it did have jurisdiction over the dispute and that the Philippines’ submissions were well founded in fact and law, and failed to state the reasons on which its awards were based. The Tribunal’s relevant findings contravene the law. The Chinese government is well justified to conclude that the Tribunal’s awards are null and void” (pp. 652-653). The CSIL comes to this conclusion based on a series of arguments which are summarized as follows. (This summary does not attempt to assess the merits of the CSIL’s arguments.)



It will be interesting to see if bodies of work such as the CSIL’s critique will eventually help China persuade the countries in the region as well as the world’s major powers to ignore the arbitral award and accept its ongoing activities in the SCS.




The first stage in the CSIL’s (2018) critique is to argue that “the Tribunal manifestly had no jurisdiction over the Philippines’ submissions, and its awards are groundless both in fact and in law, thus null and void … The subject-matter of the Philippines’ submissions is in essence one about territorial sovereignty over several maritime features in the South China Sea, which is beyond the scope of the Convention and does not concern the interpretation or application of the Convention … The Tribunal manifestly had no jurisdiction over the Philippines’ submissions. However, it turned a blind eye to the fact that the Philippines’ submissions concern the territorial and maritime delimitation dispute between China and the Philippines, disregarded the agreement that exists between the two States on settling relevant disputes through negotiation, and acted ultra vires by exercising its jurisdiction over and deciding upon the submissions. This is the most fundamental error committed by the Tribunal in this Arbitration” (p. 649).


The CSIL (2018) next proceeds to argue that the PCA tribunal had “erred in fact finding, and law interpretation and application.” Among these errors are those pertaining to China’s historic claims: “The Tribunal misread the relationship between the Convention and historic rights, resorted to selective and arbitrary use of materials, erroneously characterized China’s historic rights, and erroneously decided that China did not enjoy such historic rights in the South China Sea.” The CSIL also argues that the PCA tribunal had made factual errors with regard to the physical and human geography of the features in the disputed maritime area. For example, the CSIL argues that the tribunal “erroneously found that some component features of China’s Nansha Qundao (Spratly Islands) were ‘low-tide elevations’ and could not be appropriated as territory,” and also “erroneously found that neither Huangyan Dao (Scarborough Shoal) of China’s Zhongsha Qundao (Macclesfield Bank) nor any features of China’s Nansha Qundao could sustain human habitation or economic life of their own” (pp. 650-651).


With regard to China’s activities in the SCS, the CSIL (2018) argues that the PCA tribunal had “disregarded the Philippines’ provocations that challenged China’s sovereignty and jurisdiction in the areas of Meiji Jiao (Mischief Reef), Ren’ai Jiao (Second Thomas Shoal), Huangyan Dao and Liyue Tan (Reed Bank), and erroneously took China’s legitimate activities to affirm and safeguard its sovereignty as actions to protect the alleged illegal fishing activities of its fishermen, and considered them as illegally endangering navigation safety and impeding the Philippines’ exercise of sovereign rights.” Furthermore, the CSIL notes that the PCA tribunal had “disregarded the fact that China’s construction activities caused no significant pollution or harm to the marine environment in the South China Sea on the basis of which, islands and reefs, and that China has the discretion on whether or not to conduct an environmental impact assessment,” upon which the tribunal “erred in applying Article 206 of the Convention to China.” In addition, the CSIL argues that the tribunal also “erred in taking China’s construction activities in Nansha Qundao as the construction of artificial islands, installations, and structures within the already ascertained exclusive economic zone and continental shelf of the Philippines, and in applying Articles 60 and 80 of the Convention to these activities.” (pp. 651-652).


The following stage in the CSIL’s (2018) critique highlights how the PCA tribunal’s decisions “contravene the law, set an ill precedent, and threaten to undermine the international rule of law.” The CSIL begins by observing the “judicial activism” of the PCA tribunal: “The Tribunal abused its competence to decide jurisdiction, and attempted to circumvent optional exceptions declarations made under Article 298 by China and therefore other States parties, by misreading the choice of means of dispute settlement made by China and the Philippines and therefore other States parties and deliberately lowering the threshold for initiating compulsory procedures under the Convention. This act undermined the States parties’ right to choose, on their own, means of the peaceful settlement of their disputes” (p. 653).


The CSIL (2018) next describes the PCA tribunal as having “disregarded the fact that the subject-matter of the Philippines’ submissions concerns China’s territorial sovereignty in the South China Sea, erred in addressing the legal status of component features of China’s Nansha Qundao and Zhongsha Qundao, and attempted to jeopardize China’s territorial sovereignty in the South China Sea. The Tribunal infringed a State’s territorial sovereignty in the name of interpretation and application of the Convention. Such a trick violates fundamental principles of international law, and goes against the object and purpose of the Convention” (p. 653).


With regard to the PCA tribunal’s treatment of China’s historic claims in the SCS, the CSIL (2018) argues that “the Tribunal erroneously concluded that the Convention superseded any historic rights in excess of the limits imposed by the regimes of exclusive economic zone and continental shelf under the Convention. This would put in risk the historic rights enjoyed by States under general international law.” In addition, the CSIL also argues that the PCA tribunal had “erroneously denied the regime of continental States’ outlying archipelagos under customary international law. This jeopardized the legitimate rights and interests of continental States possessing outlying archipelagos” (p. 653).


In sum, the CSIL (2018) sees the PCA tribunal as having overstepped its boundaries: “When interpreting and applying relevant provisions of the Convention, the Tribunal did so out of context, distorted the true meaning and spirit of the Convention, rewrote some provisions, broke the delicate balance in the Convention as well as the balance of interests between States parties, and went against the object and purpose of the Convention. It usurped, in effect, the law-making power which belongs to the States parties to the Convention.” This, the CSIL feels, has given “a bad name to Annex VII arbitration and even the whole dispute settlement mechanism under the Convention” (p. 654).


Reading the vigorous critique by the CSIL of the PCA’s arbitral award, one wonders if Philippines v. China would have had a different award had China opted to actively participate in the arbitration process. However, that hypothetical is only useful now as a theoretical exercise. In terms of China’s international diplomacy, it will be interesting to see if bodies of work such as the CSIL’s critique will eventually help China persuade the countries in the region as well as the world’s major powers to ignore the arbitral award and accept its ongoing activities in the SCS.


References


Chinese Society of International Law (CSIL). (2018). The South China Sea Arbitration Awards: A Critical Study. Chinese Journal of International Law, 17(2), 207–748. doi:10.1093/chinesejil/jmy012


Lim, A. C. H. (2016, July 19). Prospects and Challenges for China after the South China Sea Arbitration. IPP Review.


Ng, T. (2015, May 5). Crack international law team to join in China’s hunt for fugitives. South China Morning Post.


Renz, P. M. and Heidemann, F. (2015, May 8). China’s Coming ‘Lawfare’ and the South China Sea. The Diplomat.


Talmon, S. (2017). The South China Sea Arbitration and the Finality of ‘Final’ Awards. Journal of International Dispute Settlement, 8(2), 388–401. doi:10.1093/jnlids/idw027


Venzon, C. (2018, April 28). Duterte tells Vietnam: Manila not throwing out maritime arbitration win. Nikkei Asian Review.


Wang, J. (2016, April 6). National Interests, International Law, and China’s Position on the South China Sea Disputes. IPP Review.




1 Comments To This Article

  • arkhangelsk
    arkhangelsk

    on May 19, 2018 at 09:38 AM - Reply

    1

    If it is a "fresh" critique, you are not doing a very good job of selling it. The way you put it, it sounds like a rehash of everything Chinese scholars have already bleated about, from the jurisdiction issue to the facts issue. Further, your summary already introduced a contradiction from the start. In saying "in essence", it is conceding that technically or formally it can be viewed differently, and further, "essence" is a subjective inference so it is hard to push for "manifestly" once you've already said "essence". And it is simply within the court's discretion to rule that UNCLOS overrides anything about "historic" rights, especially when allowing for them would deprive others of formally delineated rights under a positive law. What's NEW about this thing. Why should I particularly want to read this 500-page diatribe?

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