Italian expert: China has the right to not participate

File photo of South China Sea. [Photo/Xinhua]

Relying on certain clauses of the United Nations Convention on the Law of the Sea of 1982, to which both the Philippines and China are parties, Manila started an arbitration procedure against Beijing. This procedure concerns the status of many features in the South China Sea and the legality of the conduct of China in some incidents that occurred in that sea. The arbitration has resulted in an award handed out on Oct 29, 2015, in which the tribunal affirmed its right to adjudicate (jurisdiction), on about half of the Philippines' submissions, and stated that jurisdiction and the merits are linked on the remaining submissions.

So the tribunal did not exclude to have the right to adjudicate any of Manila's submissions. The final award on the merits will concern all these submissions.

China has made it very clear since the beginning of the procedure that: "It will neither accept nor participate in the arbitration … initiated by the Philippines."

This position has been criticized as inconsistent with the fact that, being bound by UNCLOS, China is also bound by the provisions in UNCLOS providing that a case concerning the interpretation and application the convention may be submitted unilaterally, by one state party, to a court or tribunal, including arbitral tribunals.

As will be shown, in fact, China's position is perfectly legal under international law. The 2015 award of the tribunal does not deny such legality, but it considers China's position only in part.

China's position consists in two distinct statements. The first is that China does not accept the arbitration. The second is that China will not participate in it. The 2015 arbitral award considers in some detail China's non-participation in the arbitration, but treats only cursorily its non-acceptance (or "rejection") of it. Non-acceptance may be seen as a political statement underlining that, with its initiative, the Philippines acts in contradiction with numerous statements, declarations and agreements in favor of friendly negotiations.

Of course, this political meaning is included in China's non-acceptance of the arbitration. However, such non-acceptance has also a specific legal meaning. It conveys the message, that, as stated by China in a Position Paper of December 2014, "the unilateral initiation by the Philippines of the present arbitration constitutes an abuse of the compulsory procedures provided in the Convention".

The tribunal did not consider seriously the "non-acceptance" of the arbitration as distinguished form "non-participation". It simply states that the language used by China "calls to mind" UNCLOS Articles 300 or 294. The tribunal comes to the correct conclusion that these articles are not relevant, but does not pursue its analysis further. In light of the evident aim of the Philippines' submissions to circumvent the limits of compulsory jurisdiction under UNCLOS, the notion of abuse of legal proceedings should have been examined in detail at a very preliminary stage.

It must be regretted that the tribunal did not consider seriously China's "non-acceptance" of, as distinguished from "non-participation" in, the arbitration. Doing so could have brought the tribunal to discuss seriously this very general aspect of the case which is the one China is most keen about, and which explains its non-participation. Such serious examination — whatever its results — would have been necessary in order to ensure the balanced treatment of the parties.

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