The imminent prospect of a final award in the Philippines v. China arbitration case on the South China Seahas prompted much speculation on what China will do after the award is issued. One of the more disconcerting scenarios that has been put forth in the event of an unfavorable award is China’s denunciation of the 1982 UN Convention on the Law of the Sea (UNCLOS).
Article 317 allows States Parties to denounce UNCLOS by written notification to the UN Secretary-General. This possibility was first raised soon after the Philippines initiated proceedings against China in 2013 and was recently elaborated on in a recent article by Stefan Talmon titled “Denouncing UNCLOS remains option for China after tribunal ruling.” Talmon argues that denouncing UNCLOS is a viable option for China if the Arbitral Tribunal decides the dispute in a way that infringes China’s territorial sovereignty over the Spratlys. He contends, amongst other things, that there would be no serious disadvantages for China primarily because, like the United States, it would continue to enjoy most of the advantages afforded in UNCLOS under customary international law.
Denouncing a convention that took nine years to negotiate, contains 320 articles and nine annexes covering an astonishingly broad range of issues, has 167 Parties, and has been described as a “constitution” for the oceans is not a decision that should be made on a whim. As Talmon acknowledges, it is a choice that should be made after careful consideration of the relative costs and benefits of remaining in the system. Contrary to Talmon’s assertion, however, there are several compelling reasons for China not to denounce UNCLOS.