181
4 South China Sea
The second example of arbitration proceedings concerning the application of the
Law of the Sea Convention, in which the respondent State did not take part, is the
procedure between the Philippines and China.
56
In this section, this procedure is
examined in a similar way as the Arctic Sunrise proceedings were examined in the
section above. Here, too, we will not dwell extensively on the substantive side of the
dispute. So much has been written on the merits of this dispute that an entire library
can been filled with scholarly books and articles, especially written by Chinese
scientists. The dispute between the Philippines and China relates to historical rights
in the South China Sea claimed by China, the legal status of certain maritime features in the South China Sea, and the legality of certain actions of China in the South
China Sea, such as the construction of artificial islands and fisheries, which damage
the marine environment.
57
This article will focus on the procedural issue of
non-participation.
The story is in many ways similar to the Arctic Sunrise story. When ratifying the
LOSC, China made a declaration stating that “the Government of the People’s
Republic of China does not accept any of the procedures […] with respect to all the
categories of disputes [which can be excluded from compulsory dispute
settlement]”.
58
In other words, China did not bother to make a comprehensive list of
excluded categories of disputes, as Russia had done; it simply excluded everything
from compulsory dispute settlement that it was allowed to exclude.
Unlike the Arctic Sunrise controversy, the dispute between the Philippines and
China did not include a provisional measures phase before ITLOS, and thus the litigation immediately went to the Annex VII LOSC arbitration stage. In its memorial
submitted 30 March 2014, the Philippines addressed the legal consequences of the
non-participating respondent. It reminded the Tribunal that “China’s consent to be
bound by the LOSC, including the dispute settlement provisions of Part XV, is not
in any way vitiated by its decision not to participate in these proceedings”.
59
Referring to Art. 9 Annex VII and Rule 25 of the Arbitral Tribunal’s Rules of
Procedure, the Philippines, “for the avoidance of any doubt […] requests that these
proceedings continue” despite China’s non-participation.
60
The Netherlands made a
similar, formal request. The Philippines then referred to the quote from the ICJ’s
Nicaragua case, which was reaffirmed by ITLOS in the Arctic Sunrise case.
61
The Philippines noted, in its memorial, that “China’s non-appearance […] does
not mean that the Tribunal has no basis on which to form a view as to China’s posi56 See Franckx and Benatar (2017).
57 See e.g., Gao and Jia (2013), and Zimmermann and Bäumler (2013).
58 The
reservation
is
available
at
https://treaties.un.org/Pages/ViewDetailsIII.
aspx?src=TREATY&mtdsg_no=XXI-6&chapter=21&Temp=mtdsg3&clang=_en#EndDec.
59 South China Sea Arbitration, The Philippines’ Memorial, Vol. I, 30 March 2014, available at
https://files.pca-cpa.org/pcadocs/Memorial%20of%20the%20Philippines%20Volume%20I.pdf,
para. 1.21.
60 Ibidem. See also para. 7.39.
61 Ibidem, para. 1.22.
Non-participation in Arbitral Proceedings Under Annex VII United Nations Convention…
4 South China Sea
The second example of arbitration proceedings concerning the application of the
Law of the Sea Convention, in which the respondent State did not take part, is the
procedure between the Philippines and China.
56
In this section, this procedure is
examined in a similar way as the Arctic Sunrise proceedings were examined in the
section above. Here, too, we will not dwell extensively on the substantive side of the
dispute. So much has been written on the merits of this dispute that an entire library
can been filled with scholarly books and articles, especially written by Chinese
scientists. The dispute between the Philippines and China relates to historical rights
in the South China Sea claimed by China, the legal status of certain maritime features in the South China Sea, and the legality of certain actions of China in the South
China Sea, such as the construction of artificial islands and fisheries, which damage
the marine environment.
57
This article will focus on the procedural issue of
non-participation.
The story is in many ways similar to the Arctic Sunrise story. When ratifying the
LOSC, China made a declaration stating that “the Government of the People’s
Republic of China does not accept any of the procedures […] with respect to all the
categories of disputes [which can be excluded from compulsory dispute
settlement]”.
58
In other words, China did not bother to make a comprehensive list of
excluded categories of disputes, as Russia had done; it simply excluded everything
from compulsory dispute settlement that it was allowed to exclude.
Unlike the Arctic Sunrise controversy, the dispute between the Philippines and
China did not include a provisional measures phase before ITLOS, and thus the litigation immediately went to the Annex VII LOSC arbitration stage. In its memorial
submitted 30 March 2014, the Philippines addressed the legal consequences of the
non-participating respondent. It reminded the Tribunal that “China’s consent to be
bound by the LOSC, including the dispute settlement provisions of Part XV, is not
in any way vitiated by its decision not to participate in these proceedings”.
59
Referring to Art. 9 Annex VII and Rule 25 of the Arbitral Tribunal’s Rules of
Procedure, the Philippines, “for the avoidance of any doubt […] requests that these
proceedings continue” despite China’s non-participation.
60
The Netherlands made a
similar, formal request. The Philippines then referred to the quote from the ICJ’s
Nicaragua case, which was reaffirmed by ITLOS in the Arctic Sunrise case.
61
The Philippines noted, in its memorial, that “China’s non-appearance […] does
not mean that the Tribunal has no basis on which to form a view as to China’s posi56 See Franckx and Benatar (2017).
57 See e.g., Gao and Jia (2013), and Zimmermann and Bäumler (2013).
58 The
reservation
is
available
at
https://treaties.un.org/Pages/ViewDetailsIII.
aspx?src=TREATY&mtdsg_no=XXI-6&chapter=21&Temp=mtdsg3&clang=_en#EndDec.
59 South China Sea Arbitration, The Philippines’ Memorial, Vol. I, 30 March 2014, available at
https://files.pca-cpa.org/pcadocs/Memorial%20of%20the%20Philippines%20Volume%20I.pdf,
para. 1.21.
60 Ibidem. See also para. 7.39.
61 Ibidem, para. 1.22.
Non-participation in Arbitral Proceedings Under Annex VII United Nations Convention…