1. PCA on China vs.

Philippines
A commentary
(LawFare) The United Nations Convention on the Law of the
Sea (UNCLOS) arbitral tribunal will soon release its longawaited award in Philippines v. China. China has already said
it will not comply with the award, but it is clearly worried that
a negative award will isolate China diplomatically or weaken
its future claims in the region. So China's diplomatic and
global media assets have already been hard at work delegitimatizing the not-yet-released award (which makes
many wonder if China's cyber-spies have already reviewed
drafts of it).
Although China has reasonable legal arguments supporting
its objection to jurisdiction, its recent efforts to undermine
the legitimacy of the arbitral tribunal and the entire UNCLOS
process are very far from reasonable. So as public service to
readers, I offer a few short responses to rebut talking points
spouted by any Chinese diplomats or PR hacks you happen
to run into.
1. Both parties' consent is NOT required for a compulsory
arbitration under UNCLOS
Chinese government spokesmen and their supporters have
repeatedly criticized the Philippines's arbitration as
unilateral. They have also repeatedly intimated that the
arbitration is illegal because the Philippines did not get
China's consent before starting the arbitration process. Some
Chinese government officials have invoked the 1970
Declaration on Principles of International Law Concerning
Friendly Relations and Cooperation to suggest that both
parties must agree on the rules of dispute settlement before
any arbitration may proceed.

On its face, this argument has no legal basis. The 1970

Declaration cannot override specific later-in-time treaty
provisions, like UNCLOS (which China signed and ratified).
Under Article 286 of UNCLOS, any dispute concerning the
interpretation or application of this Convention shall... be
submitted at the request of any party to the dispute to the
court or tribunal having jurisdiction under this section
(emphasis added). This is the classic language of compulsory
dispute resolution: any partyas opposed to both
partiescan submit a dispute to court or tribunal. It is true
that many international treaties create optional arbitration
regimes where both parties must consent before any
arbitration may be initiated. But the whole idea of UNCLOS
was to depart from that norm in order to force nations to precommit to compulsory arbitration without knowing what the
particular dispute involved.
The Chinese government's position seems to be that the
tribunal has no jurisdiction, and therefore the compulsory
dispute resolution procedures of the UNCLOS do not apply.
Therefore, they argue that China must consent to any
binding arbitration. But this position assumes China is
correct about the scope of the tribunal's jurisdiction. Because
the tribunal has exercised its powers under Article 288(4) to
determine that it has jurisdiction over the dispute, then
China is bound whether or not it has consented to this
particular arbitration.
2. Ignoring the tribunal's award does not 'uphold'
international law
One of the odder arguments put forth by China and its PR
organs is that China's boycott of the arbitral tribunal is
necessary to safeguard the international rule of law. Or, as
its leading state-run newspaper the People's Daily has put it,
China's boycott is the righteous act China has taken to

defend the legitimate rights and interests of a State Party to

UNCLOS and to uphold the authority and sanctity of this
international instrument.
Homepage ( Article MRec ), pagematch: 1, sectionmatch: 1
It is hard to know what to make of this argument. The idea
here is that if China complies with an arbitral award that
exceeded the jurisdiction of UNCLOS, such compliance would
somehow undermine the international legal system more
generally. I suppose there is some danger that other stateparties to UNCLOS would have their maritime and territorial
interests wrongly allocated to international dispute
resolution, but I don't imagine this is a great danger to the
international legal system. Most other states that are party
to UNCLOS have even granted arbitral tribunals the explicit
power to adjudicate maritime boundaries, so I doubt an
award against China would bother those countries very
much.
China is ignoring the cost to the international legal system of
its own non-acceptance and non-participation.
In any event, China is ignoring the cost to the international
legal system of its own non-acceptance and nonparticipation. As I've noted earlier, the UNCLOS dispute
settlement system is designed to require states-parties to
submit disputes to an elaborate arbitration and judicial
system. It even provides explicitly for situations where one
party refuses to participate (as China has done here) due to
objections to jurisdiction. It reflects a strong commitment
among the drafters of UNCLOS toward delegating almost all
maritime related disputes to a third-party dispute settlement
system.

China's non-participation and non-compliance may not

destroy this system, but it is hard to see how it strengthens
or safeguards it either. Future disputes sent to UNCLOS
dispute settlement may now be subject to the China
precedent, but that precedent will be unlikely to seen as a
positive one upholding the sanctity of UNCLOS.
3. The appointment of the arbitration tribunal was not a
Japanese conspiracy
In recent months, the Chinese government media, and even
Chinese government officials, have stepped up the attacks
on the arbitral tribunal. For instance, Xiao Jianguo, deputy
director-general of the Department of Boundary and Ocean
Affairs of the Chinese Foreign Ministry, has charged that
"[t]he arbitral tribunal has actually become an agent of the
Philippines" In one of dozens of op-eds published in foreign
newspapers by Chinese diplomats, the Chinese ambassador
to Indonesia suggested the constitution of the tribunal itself
is illegal or improper.
In a not so subtle invocation of the nationalist card, the
good ambassador implies that a national of China's
traditional rival Japan appointed the tribunal full of nonrepresentative Europeans. In some corners of the Chineselanguage web, Chinese nationalists have even suggested the
role of the Japanese ITLOS president proves that this whole
arbitration is a conspiracy hatched by Japanese Prime
Minister Shinzo Abe.
The only reason then-ITLOS President Shunji Yanai was
involved is because China refused to exercise its right to
appoint a member of the tribunal and to participate in the
appointment of three others.
But the ambassador (and his nationalist web-friends) omit an
important fact. The only reason then-ITLOS President Shunji

Yanai was involved is because China refused to exercise its

right to appoint a member of the tribunal and to participate
in the appointment of three others. Because of China's
boycott of the entire proceedings, Article 3 of UNCLOS Annex
VII empowers the president of ITLOS to appoint members of
the tribunal if one party refuse to participate. This power
accrues to him only because of China's boycott.
4. The arbitral tribunal has treated China fairly
From my vantage point, the tribunal has bent over
backwards to accommodate China, even though China has
pointedly refused to participate in the process. Early on in
the arbitration, a member of the tribunal from Sri Lanka
recused himself because his wife is a Filipino national. The
new president of ITLOS appointed a replacement arbitrator.
No strict rules required this replacement, but it was done to
avoid even the thinnest veneer of bias.
The tribunal repeatedly stated that China was welcome to
participate or submit briefs, and set deadlines that gave
China as much time (if not more) than the Philippines. When
China released a position paper reflecting its arguments on
jurisdiction, the tribunal reviewed those arguments as part of
its decision on jurisdiction, even though it had no obligation
to do so.
In sum, China may well have prevailed on its jurisdictional
argument if it had exercised its rights to participate in the
appointment of arbitrator and to present arguments to the
tribunal in both written and oral form. But China decided to
simply boycott the arbitration completely, so we will never
know. While I do not condemn China for refusing to
participate in the arbitration, I do condemn its not-so-subtle
attempts to smear an arbitral process which it had every
opportunity to participate in. China has not been treated

unfairly by the UNCLOS arbitration process, and informed

observers should not let China get away with claiming
otherwise.