Sofaer: The Philippine Law of the Sea Action against China: Relearning the Limits of International Adjudication

Abraham D. Sofaer (Stanford Univ. - Hoover Institution; formerly, Legal Adviser, U.S. Department of State) has posted The Philippine Law of the Sea Action against China: Relearning the Limits of International Adjudication (Chinese Journal of International Law, forthcoming). Here's the introduction:

China has been blamed – and rightly so – for advancing overbroad claims in the South China Sea (SCS), and for unilaterally attempting to enforce those claims through threats and aggressive actions. The United States has properly responded to China’s assertions by exercising its maritime rights through freedom of navigation operations, by assisting States whose claims are threatened by China’s conduct, and by working to create and strengthen alliances to deter China from continuing its policy of using strength to implement its claims to sovereignty and historical rights through unilateral actions. Such measures are essential to convince China to return to its long-held and sound policy of avoiding sovereignty disputes and supporting cooperative development.

It is equally imperative, however, for the US to acknowledge the ineffective foreign policy that continues to exacerbate the ongoing, dangerous confrontation with China over its SCS claims. The 2002 Declaration on the Conduct of Parties in the South China Sea among conflicting SCS claimants provides for the negotiation, rather than unilateral implementation, of conflicting claims; and the Philippine government in particular agreed to resolve its disputes with China through negotiations. The Philippine government gave up on diplomacy, however, and sued China under the United Nations Convention on the Law of the Sea (UNCLOS) in January 2013, contending that bilateral negotiations had led nowhere; that multilateral efforts were bogged down; and that China had repeatedly used its superior power to maintain its claims. The LOS tribunal appointed to hear the case has decided it has jurisdiction over several of the Philippine claims and it has reserved judgment on all the other claims until the merits have been determined. An LOS tribunal decision adverse to China is anticipated on July 12, 2016.

Supporters of the litigation – including the United States – appear to have believed that the action against China: was justified under the Convention’s terms; was necessary because all efforts to resolve the disputes between the two States regarding the SCS had been exhausted; could embarrass China and thereby lead it to moderate its conduct and narrow its claims; could prompt additional LOS suits by other States affected by China’s maritime claims; and would advance the influence and effectiveness of international law and the Law of the Sea in particular.

These hoped-for results have not been realized. To the contrary, the litigation has caused far more harm than good. The US does need firmly to oppose China’s unilateral actions in the SCS. But its strategy must be both realistic and honest, whereas its reliance on this litigation has been ill-considered and insincere given the firm US policy against being artificially forced into international adjudication and its failure to have ratified the Convention.