China’s rejection of int’l arbitration could weaken its case: analysts

China’s rejection of the Philippines’ attempt to seek international arbitration in their East Sea territorial dispute may discourage other claimants from taking similar steps, but it will also put the East Asian giant at a disadvantage in validating its expansive claims, analysts say.


A protester burns a Chinese flag
“If China refuses to comply with the findings of the Arbitral Tribunal, other states would still face the situation where China asserts sovereign jurisdiction over the South China Sea (East Sea),” said Carl Thayer, a Vietnam expert with the University of New South Wales in Australia.

“The various arbitration provisions of UNCLOS (UN Convention on the Law of the Sea) are concerned with adjudicating disputes over maritime jurisdiction, but not sovereignty. Vietnam cannot resort to UNCLOS to establish its claims to sovereignty over the Paracel Islands (Hoang Sa Archipelago), for example. That can only be decided between China and Vietnam bilaterally or by a mutually agreed third party,” he said.

On Tuesday (February 19), China's ambassador to Manila, Ma Keqing, returned Manila's formal notification of the move seeking arbitration to a Philippine Department of Foreign Affairs official, AP quoted Chinese Foreign Ministry spokesman Hong Lei as saying.

Hong said the proposal was historically and legally incorrect and contained unacceptable accusations against China, the newswire reported.

Last month, the Philippines had informed China that it plans to take their conflicting claims to an international tribunal. It expects the tribunal to declare illegal China's moves in the potentially resource-rich waters.

The Philippines' foreign affairs department said in a statement Tuesday that China's rejection will not interfere with the arbitration process that the Southeast Asian nation has started.

In an email to Vietweek on Wednesday, Julia Ritter, press officer of the International Tribunal for the Law of the Sea (ITLOS), said her agency had not received any submission from any concerned party regarding the dispute.

While the Philippines insists on going forward with the arbitration process, analysts said that if ITLOS opens a tribunal with China in absentia, a ruling favoring the petitioner can be expected.

Thayer said it is up to the chairman of ITLOS to nominate five persons to form the Arbitral Tribunal. These persons will be selected from a list of experts already nominated by member states that have ratified UNCLOS, he said.

“The Arbitral Tribunal will comprise five individuals. It must undertake two duties. First, it must decide whether the Philippines' Claim and Notification is an abuse of international law. Second, the tribunal must decide if it has jurisdiction in this case,” he told Vietweek.

“If China refuses to recognize a ruling by the Arbitral Tribunal recognizing the maritime zones promulgated by the Philippines (territorial sea, contiguous zone, Exclusive Economic Zone and continental shelf) and declaring the occupation of low-tide elevations illegal, it would undermine UNCLOS and the fabric of international law as a means to adjudicate disputes over maritime jurisdiction.

“The decision by the Arbitral Tribunal would have the effect of nullifying China’s nine-dash line claim to the South China Sea and claims to sovereignty over low tide elevations that China claims are islands and rocks under international law. China would no longer have a basis in international law to argue for ‘indisputable sovereignty.’ The claimant states could act to defend their sovereignty on the grounds that China's claim lacks any standing in international law. In other words, there is no longer a legal dispute," Thayer said.

Mark Valencia, a Hawaii-based expert on the East Sea dispute said if China refuses to accept or abide by ITLOS’s decision, the Philippines could use the refusal as strong propaganda for its own claims.

However, he also opined that in making this move, the Philippines would only be digging itself “into a deeper hole” instead of “coming to terms with the now dominant nation in Asia which is growing stronger day by day.”

Thanhnien News