The release of the tribunal award on the maritime disputes between China and the Philippines on July 12, 2016 put an end to a controversial arbitration procedure that lasted three years. However, in the eyes of the western camp, Pandora’s box has been opened, and the United States is at the forefront of those who had been expecting—and hoping—that China would ultimately be defeated in this case. It is foreseeable that various tricks will be played by these countries to use the award as a pretext to force China to surrender its interests on the South China Sea issue. Some of these tricks can be foreseen and others are not yet known. However, nobody, and no international force, can shake China’s determination to its sovereignty.
Against the current headwind sweeping through the South China Sea, Beijing will be ever more steady and resolved in safeguarding its territorial sovereignty and maritime rights and interests. China’s territorial sovereignty and maritime rights and interests in the South China Sea are amply evident by way of their long-term historical development as well as by China’s exploitation and effective jurisdiction and management of these waters throughout its modern history. International jurisdiction is no way to deny China’s sovereign claims in the South China Sea.
Why the “award” is unfair and invalid
Since the Philippines unilaterally filed the South China Sea dispute to international arbitration in January 2013, the Chinese government has clearly expressed that the arbitral tribunal has no jurisdiction on the submissions and claims initiated by the Philippines, in addition to China’s position of “non-acceptance and non-participation” in the arbitration case. First, according to Section I of Part XV of the “United Nations Convention on the Law of the Sea” (hereinafter referred to as “the Convention“), the precondition for the arbitration tribunal to exercise jurisdiction was untenable because China and the Philippines had agreed to solve the South China Sea disputes through consultations and negotiation, excluding the possibility of recourse to third-party resolution mechanisms.
Secondly, the Chinese government made a declaration, in accordance with the right conferred to State parties under Article 298 of the Convention, in 2006, to exclude itself from the compulsory arbitration procedure on maritime delimitation, historical title, and military and law enforcement activities. The Philippines’ case falls exactly within the category of China’s declaratory exclusions from third party settlement.
Thirdly, the submission initiated by the Philippines is obviously beyond the scope of adjustment and regulation of the Convention and beyond the jurisdiction of the arbitral tribunal because the South China Sea disputes between China and the Philippines are, in nature, territorial ownership disputes and potential delimitation disputes over some islands and reefs in the South China Sea. However, the arbitral tribunal turned a blind eye to these facts, which the Philippines deliberately packaged artfully in its submissions as disputes related to the interpretation and application of the Convention. The tribunal wantonly expanded its jurisdiction and thus misused such jurisdiction to obstinately render an award on the status of certain islands and reefs that are closely related to territorial and sovereignty ownership and delimitation. This has, in practice and consequence, resulted in an unjustified judicial intervention on the ownership and sovereignty question of the disputed maritime features, and a potentially misleading delimitation thereby of the disputed waters between China and the Philippines.
Although the arbitral tribunal conducted an analysis of China’s arguments in its award, it notably did not pay heed to China’s perspective. On the contrary, it only took into consideration the viewpoints of the Philippines on these opinions. While acknowledging that it had no jurisdiction on territorial sovereignty disputes, the tribunal still decided to exercise its so-called “jurisdiction” on the submissions initiated by the Philippines based on several assumptions associated with sovereignty-related considerations. The tribunal was clearly aware that it had no jurisdiction on maritime delimitation issues between China and the Philippines; it still decided to allow the Philippines to submit its argumentation on the meaning of “historical title” and rendered an absurd award with regard to delimitation, which is contrary to the purposes of the Convention.
State sovereignty is the cornerstone of international law and international relations. The basic principle of international law that governs legal disputes between States is that no recourse shall be applied to the International Court of Justice or arbitral tribunals without the consent of the disputed parties concerned. China has never agreed, by virtue of expressions or implications, to resolve the South China Sea disputes between China and the Philippines via compulsory arbitration procedures. In fact, the Chinese government has repeatedly reaffirmed its position of “non-acceptance” and notified Manila very clearly of this from the beginning. Under such circumstances, the tribunal still obstinately forged ahead with the arbitration and inappropriately expanded its jurisdiction, which inevitably led to obvious faults in terms of determination of the facts and the application of law as well. Furthermore, unilaterally adopting the evidence submitted by the Philippines in a raw and untested manner, the tribunal embarrassingly closed its eyes to the evidence submitted by relevant parties on the Chinese side—such as “amicus curiae” briefs delivered by a Taiwanese NGO—and rendered an award that lacked basic fairness, that was completely biased in favor of the Philippines, and that was wholly ultra vires and a total abuse of jurisdiction. There is no doubt that such an award is null and void and that China’s official position of “non-acceptance and non-recognizance” has shown that such “award” has no binding force on China.
China is not the first country to proclaim “non-implementation” towards an international judicial or arbitral ruling
It is not difficult, through a quick review of the history of international judicial and arbitration awards, to find that this case is not the first case in which a sovereign state has expressed its position of non-acceptance of an international judicial or arbitration award. The so-called “award” has no reason to be implemented by China at all, not to mention that China has stated its position of “non-acceptance and non-recognizance” as soon as the case was initiated.
A precedent was established by the United States in the “Nicaragua case” in 1986 with its objection to jurisdiction of the relevant international judicial organ and its refusal to obey the judgment rendered. The case related to the military and quasi-military activities conducted by the United States within the territory of Nicaragua, which was designed to subvert and overthrow the Government of Nicaragua. Nicaragua filed a lawsuit with the ICJ against the U.S. and argued that the ICJ had jurisdiction over the case and competence to hear the case because both the U.S. and Nicaragua had agreed to accept the ICJ’s compulsory jurisdiction. The U.S. objected to the ICJ’s jurisdiction at the jurisdictional stage of the hearing. However, America’s objection was rejected by the ICJ in its award on jurisdiction and admissibility. Under such circumstances, the U.S. refused to continue its participation in the litigation procedure and withdrew from the compulsory jurisdiction of the ICJ in October 1985. After the American withdrawal, the ICJ continued to hear the merits portion of the case and rendered a final judgment according to which the U.S. was the losing party. Since then, the United States has refused to recognize and enforce the judgment rendered by the International Court of Justice.
Here, it is necessary to recall the American official position, which arguably subscribed to its internal law rather than to its international arbitration.
First, the United States argued that although it was usually a norm to comply with ICJ decisions, there existed important exceptions, particularly when the dispute concerned highly political and even “politicized” subject matters; that the Nicaragua case involved “the highly charged politics of President Reagan’s Latin American policy”; and that, as a result, it was not an issue that could be solved by way of a judicial award.
Second, the United States insisted that no consensus had been reached within the international community on the question of the ICJ holding, preserving jurisdiction to determine its own jurisdiction—a common concept in private international law known as competence-competence. Although there was stipulation according to Article 36(6) of the ICJ Statute that “in the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court,” the U.S. pointed out in its statement to the UN Security Council that, “[The] negotiating history of the Charter of the United Nations and the International Court of Justice, as well as the consistent interpretation of those instruments by the Court, the Council, and by Member States, made abundantly clear that the Court’s claim of jurisdiction and competence in the Nicaragua case [was] groundless both in law or fact.”
Third, the United States contended that international judicial bodies have no jurisdiction over political and military disputes; that Nicaragua did not submit a legal dispute that needed to be heard; and that, on the contrary, the case was related to political events or military activities, and according to the Statute of the ICJ, such cases were not within the jurisdiction of the ICJ.
Finally, the United States, Britain and other Western powers agreed that the deliberate avoidance of the political attributes of a dispute and the intentional “packaging” of a dispute as a so-called “legal dispute” was a serious breach of the obligation of good faith. The United States pointed out in its statement to the UN Security Council that:
“What is at stake here is most emphatically not simply a legal question, despite Nicaragua’s strenuous efforts to pretend otherwise. We cannot sidestep the reality of the situation in Central America by hiding behind a decision of the International Court of Justice, much less a decision that the Court had neither the jurisdiction nor competence to render.”
The U.S. position was backed by Britain, and the U.K. condemned Nicaragua for not acting in good faith.
The world operates on the basis of reality, not on the basis of illusions. Not only have big powers such as the United States rejected international jurisdiction, but even smaller and mid-sized powers have regularly turned down jurisdiction when it constituted a formidable challenge to their national interests. China’s objection to the tribunal award does not set a precedent in anyway. For example, in the case of “Nicaragua v. Colombia,” both states were parties to the Pacto de Bogotá, a 1948 treaty which recognized the compulsory jurisdiction of the ICJ. On 19 November 2012, the ICJ rendered a judgment relatively in favor of Nicaragua that, while Colombia had sovereignty over seven disputed islands in the western Caribbean, Nicaragua was permitted to control a large amount of the surrounding waters and seabed of the seven disputed islands. The ICJ’s judgment on maritime delimitation in this case was heavily criticized. After the judgment was rendered, Colombia followed the precedent set by the U.S. in the Nicaragua v. U.S. case and withdrew from the Pacto de Bogotá. The President of Colombia Juan Manuel Santos pointed out in his statement, “The highest national interests require that territorial and maritime boundaries be established through treaties, as it has been the legal tradition in Colombia, and not by judgments handed down by the ICJ. The ICJ rule on those territorial and maritime boundaries based on undetermined equity criteria are applied in an uncertain manner, prejudicing the rights of the States and the peoples.”
Recently, the Arctic Sunrise case has also been frequently quoted because Russia refused to accept the arbitration and declined to implement the award under the framework of Annex VII of the Convention. It was brought to the tribunal on 4 October 2013 by the Netherlands against Russia and focused on the boarding, seizure, and detention of the vessel “Arctic Sunrise” and its crew. Russia refused to participate in the proceedings on the ground that it made a declaration according to Article 298 of the Convention to exclude relevant military activities from the application of compulsory arbitration procedures. Russia made a clear statement after the rendering of the award that it would refuse to enforce the award. Russia also believed that deciding to accept or deny the judicial award, which was rendered in accordance with the Convention, was not a pure legal issue but rather a major political consideration.
These cases tell us that no country is willing to accept an international judicial judgment or arbitration award against its unwillingness, especially when such judgment or award is related to a major political issue or interest that concerns the state. Meanwhile, these cases also prove that China is correct in its decision of non-acceptance in allowing a third party mechanism to determine a territorial dispute and maritime delimitation amongst other related issues. The South China Sea disputes are not a purely legal issue. It involves history, law, international relations and geopolitics on the one hand, and it is also related to the complex disputes over territory and maritime jurisdiction on the other. Apparently such complicated disputes cannot be settled by a mistaken tribunal ruling. It is obvious as well that such “arbitration” has not only failed to solve previous disputes over the South China Sea but, on the contrary, has fueled new disputes that could disturb the peace and de-stabilize the region if they are not well-managed.
Similarly, China’s position of “non-acceptance and non-recognizance” of the award also means that such a “scrap of paper” will not be allowed to exert any negative impact on China’s territorial sovereignty and maritime rights and interests over the South China Sea nor will it be allowed to negatively influence China-ASEAN relations and bilateral relations between China and other claimant countries. After the release of the award, some countries have attempted to exploit the arbitration and wishfully think that they can isolate China. In fact, these countries are making an incorrect assumption that they can accrue direct “gains” from the “award” by using it to foment dissent and stir up a challenge to China’s territorial sovereignty and maritime rights and interests in the South China Sea. Bearing this in mind, China should—and will continue to—make necessary preparations with regard to disseminating its views to a broader public audience; legally protest the award as well as engage in diplomatic engagement and maritime order maintenance activities so as to nullify the tribunal award; defeat the ulterior motives of interventionist foreign actors; and ensure a final victory in this comprehensive battle on “home field.”