Int’l Law could kill China’s claims in the South China Sea

The Permanent Court of Arbitration (PCA) at The Hague has announced that it will be holding this month of July the first hearing on the 2013 arbitration case the Philippines filed against China. The Philippines questions the legal validity of China’s ‘9-dash line’ claim over the South China Sea. Since China has refused to participate in any way in the proceedings, Philippine government officials are hopeful that an initial favourable ruling concerning jurisdiction and admissibility of the Philippine case will be the result.

To date, China has not submitted a single responsive paper. The panel is expected to proceed with the case even without China’s appearance.

While China is signatory to the United Nations Convention on the Law of the Sea (UNCLOS), the treaty permits state parties to refuse their consent to be bound by the UNCLOS courts. This begs the question, if the arbitral panel issues an award favourable to the Philippines, would the Philippines be able to ‘enforce’ the judgment against China? China is expected to ignore any decision made by the PCA. Given that China is able to resist nominal claims, the Philippines cannot enforce the award directly.

Given that China is willing and able to resist nominal claims, the Philippines cannot enforce the award directly. China’s posture has been cumulative, including recent reports over the use of water cannons against Philippine fishermen. It looks increasingly likely that China will lose in The Hague. It has already lost in the court of international public opinion. And it remains to be seen whether or not it will be a graceful loser, but this seems unlikely.

(This is a condensed article originally posted in the Huffington Post.)

Updated: 07/10/2015 — 18:33:31