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Background Briefing: South China Sea: China Rejects UNCLOS Arbitral Tribunal Carlyle A. Thayer February 21, 2013

[client name deleted] China said Tuesday it rejected the Philippines' attempt to seek international arbitration over conflicting claims to territory in the South China Sea. Foreign Ministry spokesman Hong Lei said that China's ambassador to Manila, Ma Keqing, had returned Manila's formal notification of the move to a Philippine Department of Foreign Affairs official. Hong said the proposal was historically and legally incorrect and contained unacceptable accusations against China. Could you provide your assessment of the following issues: 1. Given the status quo, can the tribunal be convened and proceed in the absence of China? ANSWER: It is up to the chairman of the International Tribunal on the Law of the Sea to nominate five persons to form the Arbitral Tribunal upon a formal request by the Philippines. These persons will be selected from a list of experts already nominated by member states that have ratified the United Nations Convention on the Law of the Sea (UNCLOS). The Arbitral Tribunal must undertake two duties before it can proceed. First, it must decide whether or not the Philippines Claim and Notification is an abuse of international law. Second, the Arbitral Tribunal must decide if it has jurisdiction in this case. 2. If the tribunal rules in favour of the Philippines, would the verdict be binding? How would it be enforced? ANSWER: UNCLOS states that the decision of the Arbitral Tribunal is binding on all members. But UNCLOS contains no provision for enforcement or compliance. 3. What if China refuses to observe the verdict? ANSWER: The Arbitral Tribunal has been asked to rule on several points of international law. Some of its decisions may favour the Philippines but other decisions may not. If China refuses to accept a ruling by the Arbitral Tribunal recognising the maritime zones promulgated by the Philippines (territorial sea, contiguous zone, Exclusive Economic Zone and continental shelf) and declaring the occupation of low-tide

2 elevations illegal, it would undermine UNCLOS and the fabric of international law as a means to adjudicate disputes over maritime jurisdiction. The decision by the Arbitral Tribunal would have the effect of nullifying Chinas nine-dash line claim to the South China Sea and claims to sovereignty over low tide elevations that China occupies and claims are islands and rocks under international law. China would no longer have a basis in international law to argue for indisputable sovereignty. The claimant states could act to defend their sovereignty on the grounds that China's claim lacks any standing in international law. In other words, there is no longer a legal dispute. The use of the term legal dispute is meant in its strict sense. International lawyers argue that when two states are in dispute no state should change the status quo in its favour and both states should conduct themselves peacefully until the dispute is resolved. If there is no longer a legal dispute then the Philippines (and/or Vietnam) could proceed to develop the resources in their EEZs and deploy paramilitary and military ships to protect their commercial interests. States could proceed to explore and develop oil and gas fields within their EEZ and send Coast Guard or military ships to protect commercial vessels. States could raise the matter in regional forums and in the United Nations claiming that Chinas noncompliance and further attempts to exert sovereign jurisdiction were a threat to peace and security. In these cases claimant states could seek resolutions requiring China to comply with international law. This would only add moral and political pressure on China and China could just ignore such resolutions. But it would be at a cost to its prestige and international standing. States could attempt to block, board and seize any Chinese ships and fishing boats conducting illegal acts within their EEZ. In all cases, if China decides to brazen it out and continue to occupy features illegally there is not much a regional state realistically could do. If a state attempted to use force it would be an unequal confrontation that China would win. China would undermine its credibility and prestige, however. 4. Should the fact that China rejects such mediation serve as a discouraging factor for other claimants like Vietnam to file a similar lawsuit in the future? ANSWER: Yes, if China refused to comply with the finding of the Arbitral Tribunal, other states would still face the situation where China asserts sovereign jurisdiction over the South China Sea. It should be noted that the Philippines has been clever not to challenge those areas where China has exempted itself from binding arbitration. The various arbitration provisions of UNCLOS are concerned with adjudicating disputes over maritime jurisdiction but not sovereignty. Vietnam cannot resort to UNCLOS to establish its claims to sovereignty over the Paracel Islands, for example. That can only be decided between China and Vietnam bilaterally or by a mutually agreed third party.

Suggested citation: Carlyle A. Thayer, South China Sea: China Rejects UNCLOS Arbitral Tribunal, Thayer Consultancy Background Brief, February 21, 2013.