South China Sea: Philippines v. China – Institute for Maritime and Ocean Affairs

The Philippines v. China case before the arbitral tribunal set up under Annex VII of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) has attracted worldwide attention for a number of reasons, one of which being China’s refusal to participate in the proceedings, which were initiated by the Philippines.

The non-appearance of a party before an international court or tribunal is not uncommon, nor is this the first time a party has chosen not to appear before an UNCLOS dispute settlement body. In 2013, Russia elected to stay away from both provisional measures proceeding before the International Tribunal for the Law of the Sea (ITLOS) and currently, as things stand, it is not appearing before the Annex VII arbitral tribunal in the Arctic Sunrise case initiated by the Netherlands. What is peculiar about Philippines v. China, however, is that even though China has officially made it public that it would not participate in the proceedings, it has missed no opportunity to make the details of its position known through both formal and informal channels. This situation gives rise to several interesting legal questions.

Can China choose not to participate?

Even though international law imposes on States an obligation to settle disputes peacefully, when it comes to international adjudication or arbitration, States retain the right to decide whether to take part in it or not. The decision to not participate in legal proceedings of course begs the question of good faith, nevertheless it has to be acknowledged that international law allows for States to do so. In this particular case, Article 9 of Annex VII UNCLOS, Default of appearance, and Article 25 of the Rule of Procedure of the Arbitral Tribunal envision a situation in which one of the parties fails to appear before the tribunal. However, both of these articles state that the non-appearance of one party will not constitute a bar to the proceedings and at the same time require the tribunal to “satisfy itself that it has jurisdiction and that claim is well founded in fact and in law.”