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How China can benefit from the S. China Sea arbitration

As we get closer to the decision in the arbitration on the South China Sea, we hear numerous arguments from all sides, including the article by Ambassador Xie Feng in The Jakarta Post on June 8

Haryo Budi Nugroho (The Jakarta Post)
Jakarta
Wed, June 15, 2016

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How China can benefit from the S. China Sea arbitration

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s we get closer to the decision in the arbitration on the South China Sea, we hear numerous arguments from all sides, including the article by Ambassador Xie Feng in The Jakarta Post on June 8. Now, it is important to view the arbitration from an objective standpoint.

First, regarding the formation of the arbitration, it is indeed the case that the Philippines initiated the arbitration unilaterally.

However there is no stipulation within UNCLOS that bans a country from unilaterally launching arbitration. For instance Malaysia did so in the case of land reclamation filed against Singapore.

China declined to participate from the beginning, which other countries must respect as this is perfectly legal under international law, especially UNCLOS.

In the same vein, the non-participation by China does not prevent the arbitration from proceeding. It is also within the framework of international law that the arbitration can render its decision after it satisfies itself that it has jurisdiction and that the claim is well founded.

Refusal to participate has deprived China of opportunities to influence the decision-making process in the arbitration from within. China’s attempt to explain its position, including the article by Ambassador Xie Feng, constitutes an effort to influence the decision from outside.

The effectiveness of this strategy is yet to be seen and would be a great academic research topic.

Second, regarding the competence of the arbitration. This matter concerns whether both parties have consented to the arbitration procedure and whether the dispute submitted falls within the scope of the UNCLOS dispute-settlement mechanism.

Parties to UNCLOS give their consent to the binding dispute-settlement mechanism when they become parties. Exceptions can be made for cases involving delimitation, military activities in the EEZ and disputes currently handled by the UN Security Council.

In the South China Sea, the dispute filed by the Philippines did not touch any of the exceptions.

In this regard the Philippines presented its arguments in the first round of hearing. China on the other hand indirectly delivered its arguments through its Position Paper issued on Dec. 7, 2015.

The Position Paper in principle questions the competence of the arbitration because the core of the Philippines submission relates to sovereignty and delimitation.

Indeed to some extent the dispute is connected to delimitation and sovereignty, but the arbitration has been very cautious.

In its award on jurisdiction last year it did not affirm jurisdiction to hear the case to all of the submissions, but reserved its right to determine jurisdiction after hearing the arguments on their merits. The arbitration has actually acted fairly and impartial.

The argument of Ambassador Xie Feng that the arbitration has disavowed the legally binding force of the declaration of conduct (DOC) on the South China Sea is legally flawed. The DOC is not a legal document; it is a political document.

Thus, the DOC does not have legally binding force. Furthermore the DOC aims to regulate conduct and manage the dispute, whereas the subject matter of the arbitration concerns interpretation and application of UNCLOS provisions.

Lastly, the DOC applies to the entire South China Sea area while the arbitration only concerns areas that relate to the Philippines’ claim.

Third, regarding the attitudes of the parties in complying with the decision of the arbitration.

Both China and the Philippines as parties to the dispute are under international obligation to obey the decision of the arbitration.

To date, China has expressed its strong opposition and it will not follow the decision of the arbitration. Such a move will surely create tension and instability in the South China Sea.

So much is at stake for China if it decides not to follow the ruling. It will set a backlash against the rule of law and show a negative example how a groundless unilateral action finds its place in the international community.

Such an example is not expected from a permanent member of the UN Security Council. China as a proponent of the international judicial system can be seen by the fact that there are always Chinese judges at both the International Court of Justice (ICJ) and the International Tribunal for the Law of the Sea.

Under the preamble of the UN Charter, we pledged to establish conditions under which justice and respect for the obligation arising from treaties and international law can be maintained.

As a permanent member of the Security Council, China should lead by example in upholding the rule of law. China should not, on the contrary, bail and withdraw from UNCLOS.

The ruling of the arbitration will carry significant importance, as it will become a source of international law. Such a stipulation is based on Article 38 of the ICJ Statute, that judicial decisions are a source of international law.

The substance of the award may also carry some fundamental elements of international law such as definition of the term “human habitation” and the term “economic life of their own”.

This ruling may be referred to by states as well as international courts in the future. At that point, it will be difficult for China to oppose the decision.

If China accepts the ruling of the arbitration, it will not forfeit its claim over the maritime features in the South China Sea. As a matter of fact, China can adjust its claims by simply drawing a maritime zone from all the features that it claims within the distance of 12 or 200 nautical miles in accordance with the decision of the arbitration.

With this position, China can ask the other claimants namely the Philippines, Brunei, Vietnam and Malaysia to clarify their respective claims.

By accepting the arbitration and its ruling, China can overcome the difficulties it is currently facing, as the Chinese proverb goes “In every crisis, there is an opportunity”.
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The writer holds a doctorate degree on ocean law and policy from the University of Virginia’s School of Law, and was a training fellow at the International Tribunal at the Law of the Sea in Hamburg.

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