South China Sea

The Philippines Should Dare China to Challenge the Arbitral Award in the ICJ

By Julian Ku
Tuesday, July 5, 2016, 10:13 AM

As the release of the South China Sea arbitration tribunal’s award on July 12 nears, China has apparently gone into “propaganda overdrive” to defend its position that the tribunal lacks jurisdiction. By now, most anyone who accesses the internet or reads a daily newspaper has run across China’s insistence that the Philippines dispute involves maritime delimitation and sovereignty issues beyond the arbitral tribunal’s power. China’s formidable global public relations campaign has driven this point home in diplomatic meetings, editorials, and news videos. Throughout this campaign, Chinese officials have spoken with absolute confidence in the correctness of their legal position.

But if China really has the courage of its convictions, there is another legal avenue it can pursue to test its arguments. Nothing prevents China from seeking to annul the UNCLOS arbitral tribunal’s award in the International Court of Justice as long as the Philippines gives its consent. Indeed, as I was recently reminded at a conference, China and the Philippines could agree to submit the arbitral tribunal’s award to the International Court of Justice for an annulment action. China’s argument in such a proceeding would not have to deal with the merits of the Philippines’ argument. Instead, China could reiterate its argument on jurisdiction and argue that the award should be nullified because the arbitral tribunal exceeded its powers. If the ICJ agreed with China, the award would be rendered “null and void,” just as China argues. Senegal and Guinea-Bissau used just such a procedure with respect to an arbitral award in 1989. Indeed, the International Law Commission’s Model Rules for Arbitral Procedure contemplates just such a procedure reviewing the validity of state-to-state arbitrations like this one.

In the event it prevails on July 12, the Philippines should seriously consider proposing this idea to China. The new president could say: If China really believes its position on jurisdiction is necessary to protect ‘the international rule of law,’ why not seek out the views of the United Nations’ ‘principal judicial organ’ for a definitive statement? We the Philippines want to give China every chance to have its argument on jurisdiction heard. The ICJ might be a friendlier forum to China’s argument.

China will no doubt turn this offer down. But it is an effective point for the Philippines nonetheless as it begins its post-award strategy of negotiating with China. All of China’s language about the “nullity” of the arbitral award is taken from statutes which allow the “setting aside” of private commercial arbitral awards by national courts. The ICJ would provide that same safeguard for China if it really has such confidence in its legal position. It’s worth one last try.