Santos, Katrina Mae C. (Student No.

2015-90076) Section III – E

Beating China at Its Own Game

The international sphere witnessed the problematic attempt of the Republic of the Philippines
(RP) to bring the People's Republic of China (PRC) to an international tribunal by invoking the very
compulsory jurisdiction which the PRC has renounced since its declaration of non-acceptance of the
procedures under Article 298 of the United Nations Convention on the Law of the Sea (UNCLOS) in 25
August 2006. As a rising global power, the PRC is a force to be reckoned with, its economic and
military power comparable to that of the United States (US). The PRC was quick to establish its position
that it will disavow any decision that the arbitral court may render and refused to participate in the
proceedings. In an official statement posted online, Chinese Foreign Ministry Spokesperson Hua
Chunying said that on the issues of territorial sovereignty and maritime rights and interests, China will
never accept any unilaterally imposed solution or third-party settlement. The RP's main plan of action
has always been to depend on international legal methods acknowledged by other global superpowers,
in the hopes of compelling compliance from the PRC, dutifully avoiding negotiations with China – with
dismal results in its implementation. This paper submits that the RP will have a better chance of a
favorable outcome if it utilizes the PRC's preferred way of dispute settlement – negotiation, but with the
active participation of a Regional Organization of which both are member states: the Association of
Southeast Asian Nations (ASEAN). The statement of Spokesperson Hua regarding China's preferred
method of settling disputes is elucidating: "China has always adhered to and has been committed to
resolving, in accordance with international law…with relevant states directly concerned through
negotiation and consultation…is China’s consistent practice, and also common practice of the
international community." 1

One of the main functions of regional organizations is to provide opportunities for diplomatic
contact in a structured setting. Though such contact serves many purposes, it is particularly useful in
the case of the RP and the PRC because it can provide them with an opportunity to discuss their
differences when international tension has disrupted communication.2 Since the Award was issued in
favor of the RP, the PRC has tightened its grip on the issue, now claiming sovereignty over all land
features in the South China Sea (SCS).3 Clearly, the SCS issue is not operating in a vacuum with only
the RP and the PRC involved. Their neighboring countries certainly have an interest involved in the
resolution of this dispute. Further bolstering ASEAN's pivotal role in this possible negotiation between
states, the ASEAN Declaration on the Conduct of Parties in the South China Sea 4 states that member
countries concerned undertake to resolve their territorial and jurisdictional disputes through "friendly
consultations and negotiations by sovereign states directly concerned, in accordance with universally
recognized principles of international law" almost echoing verbatim the earlier statement of
Spokesperson Hua as regards China's preferred mode of settlement.

It is true that UN arbitral tribunals and other legal methods have proven their general
effectiveness in the international sphere, however, it is important to note that these courts and tribunals
do not operate in isolation but regularly interact with political institutions and processes. 5 This is not to
say that the Arbitral Award in favor of the RP will be rendered useless and nugatory. The same ruling
may be used to further the RP's position in a possible negotiation with the PRC through the ASEAN.
Nations in the ASEAN have had their share of disputes successfully settled by the Permanent Court of
Arbitration (PCA) of the UNCLOS. For example, when Bangladesh won its maritime dispute with India,
the latter stated that it was "committed to abiding the outcome" of the arbitration 6 which shows strong
adherence to UNCLOS rulings among the neighboring states.

If met head-on with its preferred mode of dispute settlement, the PRC is precluded from refusing
to participate in the settlement and, with the ASEAN to shepherd and guide the negotiations, the
interests of the RP will presumably be protected. Therefore, the possibility of brokering a satisfactory
agreement among the relevant states would seem to be within reach. Considering that the PRC is
seeking to become a global leader, its consistent refusal to comply with any decision would have strong
reputational costs. Friendly relations with its neighbors are especially crucial to the PRC's continuous
rise to power. The PRC is a member of 130 international organizations that apply international law.
Thus, it needs the world to believe that its commitments under international law are credible, especially
in the trade and maritime realms on which its economy relies. 7

1
Statement of the Ministry of Foreign Affairs of the People's Republic of China on the Award of 12 July 2016 of the Arbitral Tribunal in the South China Sea
Arbitration Established at the Request of the Republic of the Philippines, http://www.fmprc.gov.cn/nanhai/eng/snhwtlcwj_1/t13 79492.htm.
2
Evans, p. 549, International Organizations and Dispute Settlement by John Merrills.
3
http://www.asser.nl/eel/dossiers/international-environmental-law-aspects-of-the-south-china-sea-arbitration-award/
4
http://asean.org/?static_post=declaration-on-the-conduct-of-parties-in-the-south-china-sea-2
5
Evans, p. 547, The Means of Dispute Settlement by John Merrills.
6
http://www.thehindu.com/news/national/bangladesh-wins-maritime-dispute-with-india/article6191797.ece
7
https://thediplomat.com/2015/11/international-law-is-the-real-threat-to-chinas-south-china-sea-claims/