China's SCS Strategy Thread

[Dolcevita]

Arbitration between nations must be voluntary, especially when the original arrangement included opting out clauses, that's what gives the institution its legitimacy. The PCA's perplexing overreach into international politics will likely diminish its own brand as a voluntary and impartial dispute mechanism. Also, China's ability to line up over 60 countries to denounce PCA overreach lends weight to its claim the court lacks legitimacy in this specific case.

PCA does not even follow their first rule. See PCA's Optional Rules for Arbitrating Disputes between Two States (1992). Section 1: Introductory Rules( Scope of Application), Article 1, Item 1.

Why is this "court" even wasting everyone's time and how could this have happened? It states clearly on the first item on the first article of the first section that Arbitration has to be agreed to in writing and China has clearly opted out of this provision.

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PERMANENT COURT OF ARBITRATION OPTIONAL RULES
FOR ARBITRATING DISPUTES BETWEEN TWO STATES
Effective October 20, 1992

SECTION I. INTRODUCTORY RULES

Scope of Application

Article 1

PERMANENT COURT OF ARBITRATION OPTIONAL RULES
FOR ARBITRATING DISPUTES BETWEEN TWO STATES
Effective October 20, 1992

SECTION I.

INTRODUCTORY RULES

Scope of Application

Article 1
1.Where the parties to a treaty or other agreement have agreed in writing that disputes
shall be referred to arbitration under the Permanent Court of Arbitration Optional Rules
for Arbitrating Disputes between Two States, then such disputes shall be settled in
accordance with these Rules subject to such modification as the parties may agree in
writing.

 

[Brumby]

A recent verdict of PCA said that Russia should pay $50b compensation to the shareholders of the late Russian oil company Yukos. In accordance with the charter of PCA Russia appealed to a medium level Dutch court in The Hague who decided that PCA had no authority in the matter as Russia had never ratified the treaty setting up the court. As China excluded the authority of PCA when it acceded to UNCLOS the same Dutch court is bounded to throw out any PCA verdict in this case.

The simple answer is that the jurisdictional authority to hear the case is governed by the specific treaties e.g. UNCLOS et al and not the PCA itself. You are comparing apples and oranges when comparing between UNCLOS and whatever international agreement that governed the Yukos case. It is like insisting your life should be the same as your neighbour even though the circumstances are different including having different parents.

 

[Brumby]

PCA does not even follow their first rule. See PCA's Optional Rules for Arbitrating Disputes between Two States (1992). Section 1: Introductory Rules( Scope of Application), Article 1, Item 1.

Why is this "court" even wasting everyone's time and how could this have happened? It states clearly on the first item on the first article of the first section that Arbitration has to be agreed to in writing and China has clearly opted out of this provision.

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As you pointed out the PCA should follow the rules as laid out in UNCLOS. In this case Article 298 and Article 288 which I had discussed before.

https://www.sinodefenceforum.com/chinas-scs-strategy-thread.t3118/page-248

 

[Blackstone]

PCA does not even follow their first rule. See PCA's Optional Rules for Arbitrating Disputes between Two States (1992). Section 1: Introductory Rules( Scope of Application), Article 1, Item 1.

Why is this "court" even wasting everyone's time and how could this have happened? It states clearly on the first item on the first article of the first section that Arbitration has to be agreed to in writing and China has clearly opted out of this provision.

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PCA isn't a court, and it's findings are not binding to non-participants. China opted out of the voluntary proceeding, and so has the right by fiat to disregard the so-called rulings. The PCA overreached in this case, and the self-inflicted wound diminishes its international standing as a just and impartial mechanism for disputes between states. Those that say so-and-so countries must follow PCA rulings, regardless of proper or improper adjudication ignore the first rule of arbitration: it must be voluntary to be legitimate.

 

[Engineer]

Why is this "court" even wasting everyone's time and how could this have happened?

There are a lot of arm twistings behind the scene. Also, PCA is a bureaucracy, and like any other bureaucracy, it puts its own survival above all else. In this instance, the PCA is giving the appearance that it is doing something so as to justify its own existence.

 

[joshuatree]

The major curve ball in my view would be Itu Abba. Whilst not part of the dispute, information was sought by the PCA from ROC. There are two possible outcomes that I could speculate. The first is that the PCA would not make a determination on whether Itu Abba is an island or not. I think such an outcome would not be desirable and its residual effect is not helpful towards future resolution of the disputes in SCS. The second possible outcome is that the PCA would determine that Itu Abba has the status of an island but its maritime entitlement is restricted to a 12 nm territorial sea. Such a determination will be highly controversial but is not without legal precedence as established in the cases of Nicaragua v. Colombia (2012) and Romania v. Ukraine
(2009). The main reasoning being adjacent land coastlines dominate the tiny coastline of an island.

Don't recall the PCA seeking info about Itu Aba from ROC. Infact, a ROC delegation to observe the case was denied by the PCA. Then ROC went on a media blitz of its own despite the displeasure of the US and the Philippines to make its argument known. About roughly a month ago, the PCA out of the blue took in a submission of facts from a private Taiwanese group which is odd but perhaps the PCA realized it would completely appear biased to take in the Filipino statements about Itu Aba with zero physical validation and the administrators of Itu Aba being barred from participating.

If the PCA makes any determination on Itu Aba, it would already make itself biased as a court should only rule on points specifically brought before it. Itu Aba is not any of those 15 points the Philippines submitted for "Relief Sought". Since the Philippines did not seek anything about Itu Aba but just mentioning it, the PCA should make no determination. Otherwise, that just amounts to gaming the system and lends credence to China stating this case is nothing but lawfare. Undesirable residual effect is not the responsibility of the court nor should it be a factor in an objective ruling especially when the lawyers that submitted the filing papers intentionally sidestepped Itu Aba and only mentioned it. Clearly, their hope is for a court ruling on Itu Aba without a full blown analysis.

(d)The legality of China restricting the Philippines economic access to its EEZ i.e. Scarborough Shoal. IMO, whilst there is a dispute over sovereignty, restricting one party access would be deemed inconsistent with UNCLOS especially when the use or the threat to use force is evident.

I don't recall any incident where China has impeded Philippines economic access to its EEZ in Scarborough Shoal area outside of 12 NM of Scarborough. Within 12 NM would be enforcing one's territorial sea rights, granted the soveriegnty is disputed, but that isn't necessarily inconsistent with UNCLOS. Otherwise the Philippine naval interception of Chinese fishermen within Scarborough would also be inconsistent with UNCLOS and came with the threat of force.

 

[Brumby]

Don't recall the PCA seeking info about Itu Aba from ROC. Infact, a ROC delegation to observe the case was denied by the PCA. Then ROC went on a media blitz of its own despite the displeasure of the US and the Philippines to make its argument known. About roughly a month ago, the PCA out of the blue took in a submission of facts from a private Taiwanese group which is odd but perhaps the PCA realized it would completely appear biased to take in the Filipino statements about Itu Aba with zero physical validation and the administrators of Itu Aba being barred from participating.

The main point is that the PCA sought submission of facts on Itu Abba from Taiwan. Whether it is a private group or quasi government I have no idea because of the way such bodies are structured in Taiwan. Why and how such information will be used by the PCA will not remain a mystery after 12th July.

If the PCA makes any determination on Itu Aba, it would already make itself biased as a court should only rule on points specifically brought before it. Itu Aba is not any of those 15 points the Philippines submitted for "Relief Sought". Since the Philippines did not seek anything about Itu Aba but just mentioning it, the PCA should make no determination. Otherwise, that just amounts to gaming the system and lends credence to China stating this case is nothing but lawfare. Undesirable residual effect is not the responsibility of the court nor should it be a factor in an objective ruling especially when the lawyers that submitted the filing papers intentionally sidestepped Itu Aba and only mentioned it. Clearly, their hope is for a court ruling on Itu Aba without a full blown analysis.

I agree that Itu Abba it is not part of the 15 claims. Itu Aba is potentially a two edged sword. I did say it is a curve ball and will be controversial. How and in what way the PCA may factor it into their determination will be known in a week's time.

I don't recall any incident where China has impeded Philippines economic access to its EEZ in Scarborough Shoal area outside of 12 NM of Scarborough. Within 12 NM would be enforcing one's territorial sea rights, granted the soveriegnty is disputed, but that isn't necessarily inconsistent with UNCLOS. Otherwise the Philippine naval interception of Chinese fishermen within Scarborough would also be inconsistent with UNCLOS and came with the threat of force.

It is part of the 15 claims made by the Philippines and the facts I am sure were presented regardless of whether you or I recall such impediments. After all such claims are a matter of law and facts. We will know soon enough.

 

[dingyibvs]

At the rate things are going, there won't be a "reputational cost" to China, but a reputational boon. If Duterte more or less ignores the ruling and accede to Chinese demand in exchange for Chinese assistance, it'll show that China has arrived at a similar stage of power as the U.S., where it's above the law because there exists no greater power to enforce the law. It would convince other nations to stop appealing to useless international bodies in the hope of a David vs. Goliath moment, and deal with China in a more pragmatic manner.

 

[joshuatree]

The main point is that the PCA sought submission of facts on Itu Abba from Taiwan.

Again, don't see the PCA seeking submission of facts on Itu Aba from Taiwan. Per the Amicus Curiae submitted by CSIL of Taiwan, PCA only sought comments from the Philippines and PROC in regards to ROC's press release No 23 and only sought those two for all other matters. The court accepted CSIL's self initiated Amicus Curiae around April 2016 but this is more reactive than proactively seeking anything from Taiwan.

It is part of the 15 claims made by the Philippines and the facts I am sure were presented regardless of whether you or I recall such impediments. After all such claims are a matter of law and facts. We will know soon enough.

Recalling factual impediments are important. While the Philippines made point numbers 8 & 9 in its "Relief Sought" that Scarborough should only be entitled to 12 NM and that it should be able to exploit resources in waters adjacent to Scarborough, what is actually happening around Scarborough does not support any notion that China is impeding the Philippines economic access around the Scarborough area outside of 12 NM. I am open to presentation of any verifiable incidents as I could not find any yet. And any such incidents should be outside of Itu Aba's potential 200 NM EEZ to be truly in violation of UNCLOS as opposed to disputed waters. Facts were presented in court I'm sure but that does not preclude selective facts. Example - Paul Reichler's presentation of facts on Itu Aba in court are far different from the facts submitted by CSIL's Amicus Curiae.

 

[sinopakfriend]

Whatever the outcome of the PCA... situation on the ground is about something totally different. Two great powers are negotiating. One with grand chess board and the other with grand game of Go.

That is the context... out of this any issue can be created with relevant escalation matrix. With global order and global governance in a fluid phase, expect more 'negotiations'. Giants do fight physically. Pivot has only Japan and Aussies. India in the background lurking.

Barring any accidental launch, there is not going to be any wars in SCS or ECS. Philpines is a divided house. Up for grabs for both powers. With new President... could go either way.