Yesterday I set out the background to the Position Paper issued by the China, on December 7, 2014, “on the Matter of Jurisdiction in the South China Sea Arbitration initiated by the Republic of the Philippines” [hereafter, “China Position Paper”] and examined China’s first objection to the jurisdiction of the arbitral tribunal. In this post, I consider the other Chinese objections.
Second Chinese Objection: Did the Philippines violate the duty to negotiate in regard to the subject-matter of this dispute, when it initiated the arbitration?
The China Position Paper effectively maintains that the ‘exclusive’ dispute settlement mechanism between the Philippines and China on the South China Sea is friendly consultations and negotiations (China Position Paper, paras. 30-39). This position would appear tenable, if one were to tacitly accept the characterization of the arbitration’s subject-matter as one involving claims for maritime delimitation, rather than merely the “interpretation or application of UNCLOS” to the maritime limits drawn in the 9-dash line map as well as to the submerged geographic features described therein.
Notwithstanding the disputed characterization of the arbitration’s subject-matter, however, it is difficult to see where a duty to exclusively pursue negotiations or friendly consultations exists. Ordinary textual examination of the bilateral instruments and multilateral instrument (e.g. the 2002 ASEAN Declaration on the Code of Conduct of Parties in the South China Sea) referenced in the China Position Paper, appears to militate against the notion of an exclusive choice of dispute settlement through ‘friendly consultations and negotiations’. Nothing in the language of the instruments therein definitively rules out compulsory arbitration under Part XV of UNCLOS – which as UNCLOS Part XV also explicitly stresses, is likewise a peaceful means of dispute settlement in international law. Moreover, UNCLOS Part XV Article 283(1) carefully stresses that “[w]hen a dispute arises between States Parties concerning the interpretation or application of this Convention, the parties to the dispute shall proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means.” (Italics added.) This describes a remarkably low threshold for an applicant State to be able to demonstrate the failure to reach settlement (e.g. either failure of negotiations or failure to reach settlement through other peaceful means), before being able to access compulsory arbitration through an Annex VII tribunal under UNCLOS Part XV, Article 286. One can well anticipate that the Philippines could substantiate its prior recourse to “peaceful means” of dispute settlement through various diplomatic notes verbale sent to China, as well as to the United Nations, diplomatic protests at the UN as expressed during the 2012 Scarborough Shoal incidents, as well as other ongoing public statements of protest against continuing escalations that have occurred since the filing of the Statement of Claim in January 2013 (e.g. March 29, 2014 incident at Ayungin Shoal/Second Thomas Shoal; China’s reported construction, through reclamation, of a man-made island or airstrip at Fiery Cross Reef; as well as to potentially note Vietnam’s protests and standoff with China on its deployment to, and operation of, an oil rig at the disputed Paracels Islands).