China's Island Building and International Law

[William Hung]

Give me a source that shows that this "arbitration" is legally binding.

It's a legal term. If you legally agreed and join a convention, then you are legally binded to the laws and ruling of that convention.

UNCLOS is an international convention that China has agreed to join. Meaning, China has legally binded itself to the UNCLOS. The International Arbitral Tribunal was established by the UNCLOS, it runs under the UNCLOS.

UNCLOS is like a country's law, and the Arbitral Tribunal is like a country's court. You can refuse to defend yourself in a court, but you are still under it's jurisdiction and are legally binded to it's ruling.

And if there is no enforcement, then it means nothing anyway.

Yes, without enforcement, no one can do anything to China. But it can also mean that China has broken an International convention and laws that China has binded itself to.

 

[Chinese-Dragon]

It's a legal term. If you legally agreed and join a convention, then you are legally binded to the laws and ruling of that convention.

UNCLOS is an international convention that China has agreed to join. Meaning, China has legally binded itself to the UNCLOS. The International Arbitral Tribunal was established by the UNCLOS, it runs under the UNCLOS.

UNCLOS is like a country's law, and the Arbitral Tribunal is like a country's court. You can refuse to defend yourself in a court, but you are still under it's jurisdiction and are legally binded to it's ruling.



Yes, without enforcement, no one can do anything to China. But it can also mean that China has broken an International convention and laws that China has binded itself to.

No, just that we ignored an "arbitration" that we are not even part of.

Again, show me any source to prove that this "arbitration" is legally binding.

 

[William Hung]

No, just that we ignored an "arbitration" that we are not even part of.

Yes, you can ignore and refuse to participate in a tribunal case. It's just like in most country, people have a right to refuse to defend themselves in a civilian court.

But those civilians are still subject to the law and court. The Tribunal belongs to the UNCLOS, and China has agreed to become a member of it since the 80s.

Again, show me any source to prove that this "arbitration" is legally binding.

You still do not understand the definition of "legally binding". For example, if you signed a legal contract, then you are legally binded to that contract. What source do you want? you just need need to consult a dictionary for this "source."

China has already signed a "contract" to join the UNCLOS. The International Arbitral Tribunal belongs to the UNCLOS so China is legally binded to their ruling, even if China refused to participate.

 

[Chinese-Dragon]

Yes, you can ignore and refuse to participate in a tribunal case. It's just like in most country, people have a right to refuse to defend themselves in a civilian court.

But those civilians are still subject to the law and court. The Tribunal belongs to the UNCLOS, and China has agreed to become a member of it since the 80s.



You still do not understand the definition of "legally binding". For example, if you signed a legal contract, then you are legally binded to that contract. What source do you want? you just need need to consult a dictionary for this "source."

China has already signed a "contract" to join the UNCLOS. The International Arbitral Tribunal belongs to the UNCLOS so China is legally binded to their ruling, even if China refused to participate.

Still no source?

Not one person in any international media has said that this arbitration is legally binding?

That seems impossible. Unless of course you are lying.

 

[William Hung]

Still no source?

Not one person in any international media has said that this arbitration is legally binding?

That seems impossible. Unless of course you are lying.

Simply read the OP article properly:

China occupies and controls seven reefs in the Spratlys, the legal status of which are at issue in the case between the Philippines and China that is currently before an international arbitral tribunal established under the dispute settlement provisions in the UN Convention on the Law of the Sea (UNCLOS). China has decided not to participate in the case, and the matter is proceeding without Beijing's participation as provided in UNCLOS.

The author made it clear that the tribunal under which the Philippines is pursuing it's case, was established by the UNCLOS.

And the author is a law professor at National University of Singapore.

As for whether the ruling would be legally binding if China refuses to participate, heres the direct source from a UNCLOS legal document:

Article 9

Default of appearance



If one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case, the other party may request the tribunal to continue the proceedings and to make its award. Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings. Before making its award, the arbitral tribunal must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law.

Article 10

Award



The award of the arbitral tribunal shall be confined to the subject-matter of the dispute and state the reasons on which it is based. It shall contain the names of the members who have participated and the date of the award. Any member of the tribunal may attach a separate or dissenting opinion to the award.

Article 11

Finality of award



The award shall be final and without appeal, unless the parties to the dispute have agreed in advance to an appellate procedure. It shall be complied with by the parties to the dispute.

Before making its award, the arbitral tribunal must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law.

This clause is easy to satisfy. The Arbitral tribunal, which has been established by the UNCLOS, has jurisdiction over the dispute because both the Philippines and China has binded themelves to the UNCLOS. It is now up to the tribunal to decide whether the Philippines' case is well founded according to UNCLOS'law. And the law professor said in the article that China's land reclamation works could be breaking some UNCLOS law.


PREAMBLE TO THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA

 

[Chinese-Dragon]

Simply read the OP article properly:



The author made it clear that the tribunal under which the Philippines is pursuing it's case, was established by the UNCLOS.

And the author is a law professor at National University of Singapore.

As for whether the ruling would be legally binding if China refuses to participate, heres the direct source from a UNCLOS legal document:





This clause is easy to satisfy. The Arbitral tribunal, which has been established by the UNCLOS, has jurisdiction over the dispute because both the Philippines and China has binded themelves to the UNCLOS. It is now up to the tribunal to decide whether the Philippines' case is well founded according to UNCLOS'law. And the law professor said in the article that China's land reclamation works could be breaking some UNCLOS law.


PREAMBLE TO THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA

Nothing you have quoted contains the phrase "legally binding".

I'm sure you know that.

 

[William Hung]

Nothing you have quoted contains the phrase "legally binding".

I'm sure you know that.

It seems like you're lacking in knowledge in even basic legal terminology.

If you signed a legal contract, then you are automatically "legally binded" to that contract. This is a basic legal concept. Simply, a dictionary can give you this definition.

China has signed a "legal contract" to become a member of UNCLOS, which mean that China has legally binded itself to it.

The tribunal under which the Philippines is pursuing it's case, was legally established by the UNCLOS. And since both China and the Philippines are binded to the UNCLOS, the tribunal will have legal jurisdiction over the case and dispute.

 

[Chinese-Dragon]

It seems like you're lacking in knowledge in even basic legal terminology.

If you signed a legal contract, then you are automatically "legally binded" to that contract. This is a basic legal concept. Simply, a dictionary can give you this definition.

China has signed a "legal contract" to become a member of UNCLOS, which mean that China has legally binded itself to it.

The tribunal under which the Philippines is pursuing it's case, was legally established by the UNCLOS. And since both China and the Philippines are binded to the UNCLOS, the tribunal will have legal jurisdiction over the case and dispute.

Plenty of signed agreements are not legally binding as well.

I'm sure you know that.

Again, show me a source that shows that "this arbitration is legally binding".

 

[William Hung]

Plenty of signed agreements are not legally binding as well.

I'm sure you know that.

Again, show me a source that shows that "this arbitration is legally binding".

Global Insider: Philippines-China Case May Test Limits of UNCLOS Arbitration

In an email interview, John E. Noyes, a professor of international law and the law of the sea at California Western School of Law, explained the significance of the move and how international tribunals for maritime disputes generally operate.

WPR: What are the steps for seeking arbitration under the United Nations Convention on the Law of the Sea (UNCLOS), and what is the scope of the disputes that can be settled under it?

John Noyes: Under UNCLOS, which has been accepted by 165 parties, countries involved in a dispute must first try to resolve it informally. If negotiation fails, the disputing parties may have recourse to arbitration. To begin the arbitration, an applicant country prepares a legal claim, sends it to the respondent country along with a notice of arbitration and names one member of the five-member arbitral tribunal. The respondent then has 30 days to name a second member of the tribunal, and the two disputants have another 60 days to agree on the remaining three members. If the respondent fails to name an arbitrator, or if there is no agreement on other tribunal members, the tribunal will still be constituted, but in that case the president of the International Tribunal for the Law of the Sea (ITLOS) selects the remaining arbitrators.

Once constituted, the arbitral tribunal must determine whether it has jurisdiction, that is, authority to decide the merits of the case. A tribunal has jurisdiction over disputes concerning interpretation or application of UNCLOS, with the exception of certain fishing and marine scientific research disputes. Countries may also refuse jurisdiction in cases concerning other specified sensitive matters, such as maritime boundaries and military activities. China, for example, declared in 2006 that it does not accept ITLOS jurisdiction with respect to those matters. In the Philippines’ recent case against China, the arbitral tribunal will dismiss for lack of jurisdiction if it determines that the case concerns maritime boundary delimitation or sovereignty over land. But the Philippines contends the case is among other things about China’s interference with navigational rights and whether certain features are “rocks” or “low-tide elevations” (rather than “islands,” which have extensive maritime zones); if the tribunal accepts the Philippines’ characterization, the tribunal would conclude that it has jurisdiction.

If an arbitral tribunal has jurisdiction, it will proceed to render a legally binding decision on the merits. This process may take several years.

WPR: What mechanisms are in place to enforce rulings made under UNCLOS arbitration or the ITLOS?

Noyes: UNCLOS for the most part does not provide enforcement mechanisms for arbitral or ITLOS decisions.

Like what I said, if the Philippines succeed in its arbitration case, and the tribunal determines that it has jurisdiction over the dispute, then their ruling is legally binding.
However, the tribunal does not have the mechanism to enforce their ruling.

The arbitration case will depend on whether the tribunal decide that they have jurisdiction over the dispute or not. The Philippines argue that they do, while China can argue that the tribunal and UNCLOS dont, but it doesnt help that China is ignoring it and are staying relatively silent about the case. Do you know why? Because China has also previously raised the Diaoyudao dispute to the UNCLOS against Japan. Meaning, China dont want to fully reject UNCLOS's jurisdiction because they might need it later for the Diaoyudao dispute.

So I will ask my original question again to you: In a hypothetical scenario where the Philippines does succeed in its arbitration case, will China accept it or will China reject it?

 

[Chinese-Dragon]

So you finally found a source with the phrase "legally binding". Unfortunately for you, even your own source says it's not legally binding thus far, nor does it have any enforcement mechanisms.

So I will ask my original question again to you: In a hypothetical scenario where the Philippines does succeed in its arbitration case, will China accept it or will China reject it?

Reject obviously.

Domestic law supersedes International law in every scenario for us.

 

[kyle Chiang]

Joining UNCLOS is entirely voluntary. Both China and the US has the free choice to join it or not. US didnt join, China did.

If you legally joined a convention, then you are legally subject to its law and ruling.



I'm not too sure what you are saying here. Your spelling and grammar made it unclear. Can you link to the UNCLOS document with that clause?

第一，中菲南海争议的核心是领土主权争议。这个争议是菲自上个世纪70年代开始非法占领中国南沙岛礁的部分岛礁而引起的。《联合国海洋法公约》只解决公约本身的解释或者适用的争端，不解决陆地和岛屿的领土主权争议。所以这个争端不可能适用《公约》的争端解决程序。

第二，中菲同为南海沿岸国，在南海有专属经济区和大陆架划界问题没有解决。但是，中菲海域划界问题也不适用仲裁程序，因为中国于2006年依据《公约》第298条，已经将包括海洋划界、历史性所有权、军事活动和海上执法活动等争端排除适用公约287条的强制争端解决程序。这是《公约》赋予缔约国的权利，已经有包括常任理事国当中的四大常任理事国在内的34个国家做出类似声明。美国之所以不是其中之一，是因为美国海没有批准加入《联合国海洋法公约》。

第三，中菲共同参加的2002年《南海各方行为宣言》第四条明确规定，涉及领土主权和管辖权的争议由直接有关的争端当事方通过协商谈判解决。这也排除了利用第三方介入的争端解决程序的适用。

 

[William Hung]

So you finally found a source with the phrase "legally binding". Unfortunately for you, even your own source says it's not legally binding thus far, nor does it have any enforcement mechanisms.

That's because you do not even understand basic legal precepts. The term "legal binding" is a basic legal terminology and the UNCLOS legal documemts do not need to mention such basic convention. Any lawyer with basic knowledge in law can interpret that from those legal documents.

When did I say the tribunal has already made a legally binding decision? It is still an ongoing process. I said if the Philippines win it's arbitration case, then it will become legally binding, but not enforced.

第一，中菲南海争议的核心是领土主权争议。这个争议是菲自上个世纪70年代开始非法占领中国南沙岛礁的部分岛礁而引起的。《联合国海洋法公约》只解决公约本身的解释或者适用的争端，不解决陆地和岛屿的领土主权争议。所以这个争端不可能适用《公约》的争端解决程序。

第二，中菲同为南海沿岸国，在南海有专属经济区和大陆架划界问题没有解决。但是，中菲海域划界问题也不适用仲裁程序，因为中国于2006年依据《公约》第298条，已经将包括海洋划界、历史性所有权、军事活动和海上执法活动等争端排除适用公约287条的强制争端解决程序。这是《公约》赋予缔约国的权利，已经有包括常任理事国当中的四大常任理事国在内的34个国家做出类似声明。美国之所以不是其中之一，是因为美国海没有批准加入《联合国海洋法公约》。

第三，中菲共同参加的2002年《南海各方行为宣言》第四条明确规定，涉及领土主权和管辖权的争议由直接有关的争端当事方通过协商谈判解决。这也排除了利用第三方介入的争端解决程序的适用。

The problem is that China dont want to clarify that 2006 clause. All the press statements made by Chinese officials so far are quite ambiguous. They just simply said the Philippines case is not valid and ignore it. China dont want to talk too much details about the UNCLOS jurisdiction because they might need it for the Diaoyudao dispute later on.

 

[Chinese-Dragon]

That's because you do not even understand basic legal precepts. The term "legal binding" is a basic legal terminology and the UNCLOS legal documemts do not need to mention such basic convention. Any lawyer with basic knowledge in law can interpret that from those legal documents.

When did I say the tribunal has already made a legally binding decision? It is still an ongoing process. I said if the Philippines win it's arbitration case, then it will become legally binding, but not enforced.

So basically it is 100% worthless.

The tribunal's ruling will be legally binding.

Here you said the tribunal's ruling will be legally binding, but your own source says they have not even decided if it has jurisdiction or not. And it cannot be legally binding until they do.

And it can't be enforced in either case. So again worthless.

 

[William Hung]

So basically it is 100% worthless.

It is worthless in the sense that the tribunal will not enforce it's ruling. But if the Philippines does win its case and China decides to ignore it, it will mean that China has broken an international convention which it has previously binded itself to.

It would also mean that any attempt to bring the Diaoyudao dispute to the UNCLOS in the future, will probably get laughed at.

Also, do check out my companion thread about "why the US May Go to War in the SCS".

I dont think the US will do it. But a PhD from Cambridge thinks that the US could wage a war in the SCS to enforce any UNCLOS ruling.

The tribunal's ruling will be legally binding.

Here you said the tribunal's ruling will be legally binding, but your own source says they have not even decided if it has jurisdiction or not. And it cannot be legally binding until they do.

um, how exactly did my source contradict with what I've said?

I said "the tribunal's ruling will be legally binding."

You do know that "will be" is grammatically in the future tense and not in the present tense?

It means that in the future, whatever ruling the tribunal gives, will be legally binding. If you're facing difficulties with English grammar, then ask a native English speaker here to explain it to you.

What I've said does not imply that the tribunal has already made a legally binding ruling. I've never made such a claim. Read all my posts again.

But I want to try to summarise what you've said so far throughout this thread. And correct me if I'm wrong:

1. China's claim to sovereignty only depends on domestic law, not on international law.

2. If international law rules against China, then China will simply ignore it because China only cares about domestic law.

3. China do not follow international law.

4. Even though China is signatory to UNCLOS, any potential rulings from UNCLOS against China will be ignored because no one can enforce it.

Am I correct?

 

[Chinese-Dragon]

It is worthless in the sense that the tribunal will not enforce it's ruling. But if the Philippines does win its case and China decides to ignore it, it will mean that China has broken an international convention which it has previously binded itself to.

It would also mean that any attempt to bring the Diaoyudao dispute to the UNCLOS in the future, will probably get laughed at.

Also, do check out my companion thread about "why the US May Go to War in the SCS".

I dont think the US will do it. But a PhD from Cambridge thinks that the US could wage a war in the SCS to enforce any UNCLOS ruling.




um, how exactly did my source contradict with what I've said?

I said "the tribunal's ruling will be legally binding."

You do know that "will be" is grammatically in the future tense and not in the present tense?

It means that in the future, whatever ruling the tribunal gives, will be legally binding. If you're facing difficulties with English grammar, then ask a native English speaker here to explain it to you.

What I've said does not imply that the tribunal has already made a legally binding ruling. I've never made such a claim. Read all my posts again.

But I want to try to summarise what you've said so far throughout this thread. And correct me if I'm wrong:

1. China's claim to sovereignty only depends on domestic law, not on international law.

2. If international law rules against China, then China will simply ignore it because China only cares about domestic law.

3. China do not follow international law.

4. Even though China is signatory to UNCLOS, any potential rulings from UNCLOS against China will be ignored because no one can enforce it.

Am I correct?

That's a whole load of waffle.

You already agreed that it is worthless. And it is not legally binding, unless you can somehow see the future and say that they will somehow find jurisdiction.

As for American help, ask where was America when China seized the Scarborough shoal from the Philippines in 2012?

They don't care at all. They probably forgot what Scarborough is already. The only thing that happened after that was the US government came to China, and asked us to loan them more money again.