Like it or not, UNCLOS arbitration is legally binding for China

Author: Jerome A. Cohen, NYU

International media have come to focus on Tuesday’s anticipated decision in the Philippines’ arbitration against China. Beijing’s recent propaganda and diplomatic blitz has raised the prominence of the case to new heights. The dispute involves no fewer than 15 issues, many of them highly technical. Yet the basic issue in the case — whether the decision will be legally binding on China as well as the Philippines — is reasonably straightforward. Still there appears to be widespread misunderstanding surrounding it.

We should recognise that this will not be a decision of the Permanent Court of Arbitration in the Hague, as so many press reports state. That institution is the facilitating administrative institution for the arbitration tribunal that has been established under the United Nations Convention on the Law of the Sea (UNCLOS) in response to the claim submitted by the Philippines against China. The decision will be made by the UNCLOS tribunal, which consists of five of the world’s leading law of the sea experts.

Although any outcome can be arbitrarily dismissed as ‘debatable’, if properly understood there should be no doubt that despite Beijing’s endlessly repeated denunciations of the tribunal’s legitimacy — and even the competence and fairness of the arbitrators — China will be legally bound by the tribunal’s decision.

China claims that it has ‘indisputable sovereignty’ over the land features and waters involved in the South China Sea. It refuses to be bound by the tribunal’s anticipated decision on the grounds that the decision will necessarily deal with issues of territorial sovereignty (who owns which disputed islands) and maritime delimitation (how conflicting national water boundary claims should be resolved) and that China has never consented to any third party impartial arbitration of these issues.

China’s argument here is misleading. The tribunal has already indicated that its award will not decide those issues but will only concern itself with other important questions, all of which involve the interpretation and application of UNCLOS and are therefore within the tribunal’s decision-making authority. By ratifying the Convention, which requires compulsory dispute resolution and commits all parties to abide by whatever decision results, China clearly consented to accept the arbitration tribunal’s decision.

For example, the tribunal may amplify the meaning of the crucial Article 121.3 of the Convention by clarifying and applying the criteria for determining whether or not an island, no matter who owns it, is entitled to a 200 nautical mile exclusive economic zone (EEZ) and continental shelf as well as the 12 nautical mile territorial sea that attaches to every island.

The tribunal may also clarify the relationship of the Convention to national maritime claims that existed prior to adoption of the Convention. In particular, it may decide whether China’s ambiguous ‘nine-dash-line’ — which first appeared on a Chinese government map after World War II before the current Communist government was established — should be deemed an ‘historic right’ that survived the Convention’s adoption.

The Convention plainly provides for the determination of such questions by an impartial, independent group of five specialists whose membership and rules of procedure are prescribed at length. No further consent is required from any nation that has ratified the Convention and has a relevant claim brought against it.

When China ratified the Convention and agreed to be bound by any decision that resulted from such a compulsory third party determination, this consent was a free exercise of Chinese sovereignty and a solemn international treaty commitment to respect and comply with whatever decision emerged from the proceedings.

Of course, since China argues that in substance the issues raised by the arbitration involve questions of territorial sovereignty and maritime delimitation — and are therefore outside the scope of the tribunal’s jurisdiction — it has the right to present these arguments for the tribunal’s determination. But China declined to participate in the tribunal’s proceedings, unilaterally claiming that, since to its own satisfaction its arguments are legally correct, it need not present them for the tribunal’s impartial consideration. Despite this, the tribunal has done its best to evaluate China’s jurisdictional arguments.

Just think what a legal system the world would have if a country that has consented to compulsory third party decision-making — as countries have in over 90 international agreements — could simply renounce its solemn treaty promise while remaining within the treaty system and thumb its nose at the decision of the authorised independent tribunal. The provisions of UNCLOS clearly prohibit such conduct, which obviously constitutes a violation of international law.

China is evidently frantic to avoid being branded a violator of international law, even though, as its supporters point out, the United States, in a dispute with Nicaragua three decades ago, ignored a decision of the International Court of Justice after the court rejected its claim that the court lacked jurisdiction. That unfortunate action of the Reagan administration continues to damage the US’s reputation to this day. Washington’s reluctance to accept impartial third party dispute resolution may well be one of the reasons why the United States, disappointingly, has never ratified UNCLOS.

China’s current leaders, apparently only recently aware of the widespread opposition to their South China Sea legal stance, have been striving to limit the damage Beijing is about to suffer. Their spokespeople have presented all sorts of unpersuasive defences of their government’s refusal to honour its UNCLOS commitment. A few have even argued that China, by denouncing the tribunal’s allegedly improper actions, has become the true defender of international law. Instead of trying to stand international law on its head, China would be wiser to renew bilateral negotiations with the Philippines on the basis of the tribunal’s binding decision.

Jerome A. Cohen is Director of the US-Asia Law Institute, an NYU law professor and adjunct senior fellow for Asia at the Council on Foreign Relations.

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Godfree Roberts
12 July 2016 10:24 am

‘despite Beijing’s endlessly repeated denunciations of the tribunal’s legitimacy… China will be legally bound by the tribunal’s decision’. Why?
There is, in fact, a precedent of “non-participation and non-acceptance” of a ruling by a third party to settle an international dispute. In the Nicaragua case of the 1980s, the then Ronald Regan-led US administration took a “non-participation and non-acceptance” stance when the International Court of Justice accepted the case; it eventually passed a ruling that went against the US.
Subsequently, although Nicaragua submitted the case twice to the United Nations Security Council for discussion, the US used its veto as a permanent Security Council member to foil its passage. Noticeably, the Security Council’s members such as Britain and France and Thailand, too, refused to support Nicaragua’s demand for the implementation of the ICJ ruling, by abstaining from voting on the discussion under various pretexts. By abstaining from voting, these countries indicated they, as Security Council members, chose to take into consideration extensive political factors, though they could support the ICJ verdict.
The Nicaragua case testifies that not all rulings of international courts are recognized or implemented by one or the other party. A comparison of the cases whose rulings were implemented and those whose rulings were not recognized shows the factors that would decide whether the Permanent Court of Arbitration’s ruling in the Philippines’ case is recognized and implemented include whether the tribunal has jurisdiction over the case and whether it passes a flawless ruling. Different from the South China Sea arbitration case-in which the ruling is likely to stop short of having enough and binding content for implementation-the ICJ verdict in the Nicaragua case explicitly said the US should stop violating international law and compensate the losses it has caused to Nicaragua. So if the US, which has ignored the ICJ verdict, pressures China to implement the arbitral tribunal’s ruling, it will be guilty of using double standard.

13 July 2016 1:35 pm

“So if the US, which has ignored the ICJ verdict, pressures China to implement the arbitral tribunal’s ruling, it will be guilty of using double standard.”

I agree. Why is the pot now calling the kettle black?

And when can we expect the US Senate to ratify Unclos before asking China to uphold the PCA’s politically-motivated ruling?

When Unclos came into force in Nov 1994, it was clear that it has no power on matters involving sovereignty and under Article 298 it allows states to exclude compulsory arbitration (exactly like the PCA we see today) on matters relating to delimitation or maritime boundary.

China made such a declaration on 2006 and 39 other states, including the UK and Australia made the declaration to exclude compulsory

At least eight of the 15 claims by the Philippines pertained to decisions based on sovereignty and delimitation, which are outside the powers of the PCA and yet, amazingly, it could exceed its powers, with total disregard for the provisions of Unclos.

In the preliminary ruling on 29 Oct 2015, the PCA stated that it will be barred if China owns an island in the South China Sea.

Taiwan, by extension China under the one-China policy even the Philippines, the US and Australia adhere to, has sovereignty over Taiping Island which is about 46 ha in area and can sustain economic activity under Article 121 of Unclos, as it is the biggest land mass, with fresh water, in the Spratly.

It also has buildings, a harbour and marine research facilities, farming and fishing activities and a few hundred people living on it. Taiping Island’s history goes back over centuries.

The Philippines deceptively claims Taiping Island is a high-tide rock and thus has no 200nm EEZ, which would extend over the nine dash line and even to the shores of the Philippines.

The PCA, amazingly, agrees with the Philippines but does not explain how it is possible for an aircraft to land on the 3,800 ft runway on a rock. Check out its size below:

It is clear that the PCA ruling is politically-motivated and is therefore null and void.

The Permanent Court of Arbitration is an intergovernmental organization located at The Hague in the Netherlands. The PCA is not a court, but rather an organiser of arbitral tribunals to resolve conflicts between member states. It should not be confused with the International Court of Justice, a separate institution. (Wikipedia).

In 2014 it awarded US$50 billion to former shareholders in the now defunct oil giant Yukos, a politically-motivated ruling against Russia but that ruling was later quashed.

Mat E
20 July 2016 11:28 am

Whoa there, Godfree. You seem to have assumed that the international court’s ruling against the US was somehow not binding because the US arrogantly decided to not accept the ICJ ruling against it.

The ICJ ruling against the US was and still is binding regardless of the US’s rejection of it, just as the PCA Tribunal’s ruling against China is and will continue to be binding, regardless of Beijing’s current slanderous and contemptuous rejection of it and the PCA itself.

Armed with hindsight of the past, the world now needs to decide:

Was the United States’ rejection of the ICJ ruling, back during the Reagan era, something exemplary that other nations should and emulate? Or was it a reprehensible act that should now be properly condemned and never allowed to be repeated again?

29 July 2016 1:34 pm
Reply to  Mat E

If the ruling is binding, consider these anomalies:

1 Why is that no one can enforce it?

2 Why did President Duterte appoint an envoy to hold talks with China, without reference to it?

3 Why did Kerry encourage the Philippines and China to hold talks for a peaceful solution instead?

4 Why did Asean, after its meeting in Vientiane on 25 July, make no mention of it in its official statement?

Mat E
7 August 2016 6:21 pm
Reply to  KTTan

Absolutely none of the above “anomalies” you mentioned have any bearing as to the binding nature of the ruling and are mere red herrings.

As anyone who has actually read UNCLOS can easily understand for themselves:

“The award shall be final and without appeal,” as per UNCLOS Annex VII Article 11.

I do not see what is so mind-boggingly mysterious or difficult to understand about that.

13 July 2016 2:20 pm

Let’s say if a sea conflict/war should breakout in near future due to enforcement to free navigation or securing EEZ interest, China has no capability or limited capacity in sustaining a long term conflict to secure the reefs/man-made islands. However, nations/trade utilizing the sea passage will be significantly impacted.

14 July 2016 3:15 pm
Reply to  Rocker

Lets not talk about war over islands, rocks, shoals and reefs when China has stated ad nauseum that she is willing to hold talks and negotiate till all parties are satisfied.

Folks, Peace is, by far, a better option because in an all out nuclear war, no country is spared when a nuclear winter sets in.

But please never underestimate China military capability when she has a war chest of US$3.25 trillions and has sent a rover to the Moon.

China has said it will not cause trouble but she is not afraid of trouble or any country which flaunts its power, as China is nuclear power too.

I wrote these comments in another article in the EAF:

Mike F Chang
13 July 2016 10:34 pm

For your information, UNCLOS arbitration is not legally binding for China

The Permanent Court of Arbitration (PCA) is not a court, is not an organ of U.N.
On the other hand, the International Court of Justice (ICJ) is part of UN, and is a successor to the Permanent Court of International Justice (PCIJ).
The PCA and ICJ share the same buildings – the Peace Palace in Hague, but otherwise unrelated.

To summarize:

First, do not confuse PCA with PCIJ; nor with ICJ.
Second, do not confuse Tribunal with a Court.
Third, PCA does not power to enforce its rulings; the ICJ does.

What is the difference between the Permanent Court of Arbitration (PCA) and the International Court of Justice (ICJ)?

21 July 2016 2:54 pm
Reply to  Mike F Chang

Actually, because the tribunal duly decided according to UNCLOS rules that it has jurisdiction, its award is binding and final.

Mat E
21 July 2016 7:14 pm
Reply to  Mike F Chang

Excuse me Mike, but the ruling of the Permanent Court of Arbitration TRIBUNAL, as per UNCLOS Part XV, Annex VII & VIII, is valid and binding on China, regardless of whether China accepts it or not.

Since the 1982 Convention came into force in 1994, the PCA has acted as registry in all but one of the cases that have been arbitrated under Annex VII of UNCLOS.

Having administered all but one of the UNCLOS Annex VII arbitrations to date, the PCA has gained unique experience in dealing with, among other things, diverse organizational, procedural, and substantive issues that may arise in such arbitrations.

Through an exchange of letters between the Secretary-General of the PCA and the Registrar of ITLOS, the PCA and ITLOS have agreed to cooperate with respect to relevant legal and administrative matters.

Under the arrangement, the PCA and ITLOS have undertaken to exchange documents, particularly those connected with disputes under Annex VII of UNCLOS, and to explore cooperation in other areas of concern.

The Permanent Court of Arbitration, established by treaty in 1899, is an intergovernmental organization that actually predates the UN and thus it also predates the ICJ.

As such, the PCA predates both the ROC and PRC and their Dash Line claims, as well.

Mike F Chang
14 July 2016 3:07 am

Mr. Cohen, this is for you to ponder:

By ignoring the South China Sea ruling, China follows a long line of big powers

14 July 2016 11:46 am

Very good article, I am following this case since 2012 and would like to point out that the tribunal was never asked to assign land ownership to one country or another. This case was all about which maritime feature is a rock and which one is an island and which Exclusive Economic Zones they generate according to mutually accepted UNCLOS rules. Also kindly refer to

a) Annex VII, Article 9 on Default of appearance”
“[…] Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings. […]”

b) Part XV, Article 288 Par 4 on Jurisdiction:
“4. In the event of a dispute as to whether a court or tribunal has jurisdiction, the matter shall be settled by decision of that court or tribunal.”

c) Part XV, Article 296, Par 1 on Finality and binding force of decisions:
“1. Any decision rendered by a court or tribunal having jurisdiction under this section shall be final and shall be complied with by all the parties to the dispute.”

The text is available for anyone to read (remove spaces in the links):
www. un. org/Depts/los/convention_agreements/texts/unclos/closindx.htm

In Chinese language:
www .un .org/Depts/los/convention_agreements/texts/unclos/unclos_c.pdf

18 July 2016 1:27 am
Reply to  Patrick

You are right about compulsory dispute settlement but there are at least three exceptions.

Dr Tommy Koh, the former President of the Third UN Conference on the Law of the Sea (Unclos) and now Ambassador-At-Large at Singapore’s Ministry of Foreign Affairs and Chairman, Governing Board, Centre for International Law, National University of Singapore, wrote recently:

“Under Unclos, dispute settlement is compulsory and not optional and it is an integral part of the convention. However, if the negotiations are unsuccessful, a party to the dispute may refer the dispute to conciliation, arbitration or adjudication. The convention gives to every state party a choice between arbitration, the International Court of Justice and the International Tribunal for the Law of the Sea. If a state fails to make a choice, it is deemed to have chosen arbitration.”

He however added “Under Article 298 of the convention, disputes over sea boundaries and military activities are exempted from compulsory dispute settlement. Apart from these TWO exceptions, all other disputes concerning the interpretation and application of the convention are subject to compulsory dispute settlement.” (emphasis mine).

Another exception which is obvious is that under the provisions of Unclos, the Tribunal has no power to decide on matters pertaining to sovereignty.

In 2006, China exercised her rights under Unclos and made a Declaration under Article 298, that excludes compulsory arbitration on delimitation (maritime boundary. This declaration was also made by 30 other countries.

The Philippines was also wrong to take China suddenly for ad hoc arbitration by a Tribunal at the Permanent Court of Arbitration at the Hague (PCA) in 2013, because there was NO negotiation, though both parties agreed to do so under the terms of the 2012 DOC. (The PCA is not a court and has no link to the UN).

The dispute is really about delimitation or maritime boundary and sovereignty, which the Tribunal has no power to decide.

The Tribunal itself also stated on 29 Oct 2015 that it is barred if China owns an island in the Spratly.

The Philippines claimed that Taiping Island is a high-tide rock and thus has no 200nm EEZ, which would extend even to the shores of the Philippines, vindicating the nine dash line.

Taiping island or Itu Aba, which has been occupied by Taiwan since 1946, by extension China under the one-China policy, is about 46 ha in area and can sustain economic activity under Article 121 (3)of Unclos, as it is the biggest land mass in the Spratly islands, with plenty of fresh water.

It also has administrative and residential buildings, a hospital, a 3,800 ft runway, a harbor, roads and marine research facilities, farming and fishing activities and a few hundred people living on it.

Taiping Island’s history goes back by 600 years, as recorded in the ‘Geng Lu Bu’ or Manual of Sea Routes.

The Tribunal, amazingly, agreed with the Philippines that Taiping Island is a rock but did not explain how it was possible for an aircraft, carrying the Taiwanese President in 2015, was able to land on the 3,800 ft runway of a rock. Check out its size below:

If the US-controlled Baker and Howland islands in the South Pacific, which are uninhabited, have no fresh water and are now bird sanctuaries, can have a 200nm EEZ as claimed by the United States, (which has not yet ratified Unclos), on what basis did the Tribunal rule that Taiping island is a rock?

21 July 2016 2:47 pm
Reply to  KTTAN

1) No maritime or territorial boundary was assigned by the tribunal. That is why the tribunal justly decided that clause 298 will not apply in this proceedings. Even the Philippines did explicitly say it does not seek any award on ownership. Because the tribunal duly decided according to UNCLOS rules that it has jurisdiction, its award is binding and final.

2) Exclusive Economic Zones (EEZ) are NOT maritime boundaries, they are an area where a country has some exclusive rights of use. The tribunal only ruled on which maritime feature generates what type of EEZ, so clause 298 does not apply. The documentation is available for everyone to read on the arbitration website.

3)An EEZ is an extension of rights that propagates from owned land. Land can be owned, water cannot (There is no such a thing as a ‘water title’, but there is a ‘land title’).

4) Concerning the classification of maritime features. An island in its original state before human intervention, must be able to sustain human habitation. The natural state counts, water was not naturally flowing on Taiping and the feature was reshaped to suit the needs of the local army living there, de facto transforming it into an island. Habitable conditions can be created even on the Moon and on Mars, however that is not the point.

16 August 2016 10:01 pm
Reply to  Patrick

1 By arbitrarily ruling Taiping Island as a rock the tribunal did a defacto delimitation.

Why was it arbitrary? Taiping Island is able to support human habitation and has been for over 600 years.

Baker island is a bird sanctuary and not suited for human habitation and ditto for Okinotori atoll (no fresh water) and yet the US and Japan claim a 200nm EEZ each. Where is the equity?

2 Yes, the ruling is binding and final but what’s the point if it cannot be enforced? Also there is a remedy at Annex VII Art 12.

3 I know what an EEZ is. A country has sovereignty over its inland waters and its 12nm Territorial water. In Chile one can buy water rights (maybe title too) in a river.

4 Taiping Island in its original state had a lush vegetation (it still does), a good sign there is water. Now it produces about 60 tons of potable water each day.

There is a saying that you cannot get water out of a rock. Taiping Island is not a rock. Okinotori atoll is.

Sam Bleicher HLS '66
14 July 2016 12:38 pm

Thank you, Jerry, again, for the direct and cogent explanation of the ITLOS decision, along with the earlier article on China’s rejection of a similar Japanese claim to territorial and EEZ rights around rocks off its coast.
I’m in Beijing this month teaching about climate change at UIBE, and there is no avoiding this issue. So your articles are a valuable assist in explaining the decision.

Mike F Chang
14 July 2016 9:31 pm
17 July 2016 7:07 pm
Reply to  Mike F Chang

Actually you can just provide the direct link to the ICJ lest people accuse you of only able to provide links from Chinese news sources.

They did in fact release a statement to stress they are not linked to PCA. Highly unusual of ICJ to come out with this statement at this point in time.

15 July 2016 2:20 am

Actually, it is not.

Mat E
7 August 2016 6:24 pm
Reply to  Avery

Actually, it is.

“The award shall be final and without appeal,” as per UNCLOS Annex VII Article 11.

I do not see what is so mind-boggingly mysterious or difficult to understand about that.

14 August 2016 12:28 am
Reply to  Mat E

Actually, it is not.

Read on because under Art 12 if there is controversy a party can take the controversy to a court or another tribunal and there were a multitude of controversies, like ruling that Taiping Island is a rock, when the President of Taiwan could land there in a large military plane in 2015.

Article 12

Interpretation or implementation of award

1. Any controversy which may arise between the parties to the dispute as regards the interpretation or manner of implementation of the award may be submitted by either party for decision to the arbitral tribunal which made the award. For this purpose, any vacancy in the tribunal shall be filled in the manner provided for in the original appointments of the members of the tribunal.

2. Any such controversy may be submitted to another court or tribunal under article 287 by agreement of all the parties to the dispute.

Adolfo Paglinawan
26 August 2020 3:13 pm

Pray tell me Mr. Cohen, how can an arbitration occur with only one party participating? The Permanent Court of Arbitration is a private body where according to the UN Charter (a body of laws more organic than UNCLOS), participation is voluntary. This PCA does not have UN sanction nor is in any way related to the UN, the voluntary submission of the parties are essential because the PCA has no enforcement mechanism; enforcement depends on the cooperation of both parties. Besides the PCA is neither permanent nor a court. It is only convened when the exigency arises and subject to the mutual agreement of the parties participating. The PCA that rendered a decision on the Philippine case was merely a Philippine panel, and such a decision does not have any gravitas except for its propaganda, public relations and lawfare value. Like it or not, the PCA ruling was a monumental fraud.