Why China Shouldn’t Denounce UNCLOS

The imminent prospect of a final award in the Philippines v. China arbitration case on the South China Seahas prompted much speculation on what China will do after the award is issued. One of the more disconcerting scenarios that has been put forth in the event of an unfavorable award is China’s denunciation of the 1982 UN Convention on the Law of the Sea (UNCLOS).

Article 317 allows States Parties to denounce UNCLOS by written notification to the UN Secretary-General. This possibility was first raised soon after the Philippines initiated proceedings against China in 2013 and was recently elaborated on in a recent article by Stefan Talmon titled “Denouncing UNCLOS remains option for China after tribunal ruling.” Talmon argues that denouncing UNCLOS is a viable option for China if the Arbitral Tribunal decides the dispute in a way that infringes China’s territorial sovereignty over the Spratlys. He contends, amongst other things, that there would be no serious disadvantages for China primarily because, like the United States, it would continue to enjoy most of the advantages afforded in UNCLOS under customary international law.

Denouncing a convention that took nine years to negotiate, contains 320 articles and nine annexes covering an astonishingly broad range of issues, has 167 Parties, and has been described as a “constitution” for the oceans is not a decision that should be made on a whim. As Talmon acknowledges, it is a choice that should be made after careful consideration of the relative costs and benefits of remaining in the system. Contrary to Talmon’s assertion, however, there are several compelling reasons for China not to denounce UNCLOS.

First, denouncing UNCLOS would not release China from its obligation to comply with the Philippines v. Chinaarbitration award. Article 317 of UNCLOS clearly provides that denunciation shall not affect any right, obligation, or legal situation of the denouncing State created through the execution of the Convention prior to its termination for that State.

Second, denouncing UNCLOS would not fully protect China against similar future claims brought by Vietnam, Indonesia, or Malaysia in the South China Sea or Japan in the East China Sea, as argued by Talmon. Under Article 317, a denunciation only takes effect a year after the written notification. There is nothing to stop these countries from bringing claims during this one-year period. Indeed, when Colombia withdrew from the Pact of Bogota after the 2012 decision of the International Court of Justice (ICJ) in Nicaragua v. Colombia, Nicaragua did not waste any time filing another case against Colombia before the one year expired. The ICJ affirmed that it had jurisdiction to hear the second case brought by Colombia within the one year period, as the Pact of Bogota only terminated one year after the denunciation. Thus, instead of precluding cases being brought against it, China’s denunciation may even prompt a slew of lawsuits to be initiated before the one year is up.

Third, China is deeply entrenched in the UNCLOS system. For example, China has heavily invested in the deep seabed regime established under Part XI of UNCLOS, which allows States Parties to explore and exploit the resources of the deep seabed in areas beyond national jurisdiction. Indeed, China is a pioneer investor for deep-sea bed exploration, having been actively engaged in the exploration of the deep seabed since the 1970s. Its state entity, China Ocean Mineral Resources Research and Development Association, has concluded three contracts for the exploration of the minerals found on the deep seabed with the international institution responsible for managing these resources, the International Seabed Authority (ISA).

China’s involvement in the deep seabed regime has been motivated not only by the possibility of monetary return from extraction of these minerals but also by strategic reasons, including securing a long term supply of rare metals as an alternative to land-based minerals and enhancing China’s marine science and technology capabilities. If China were to withdraw from UNCLOS, it would have to surrender its current exploration concessions and throw a considerable amount of time, resources, and capital expenditure down the drain. The only way it might benefit from the deep seabed regime as a non-party if it were to conclude a joint venture with another contractor and get sponsorship from another State Party, a process which is complex, time-consuming, and not guaranteed.

China has also taken advantage of the rights afforded by Article 76 in Part VI of UNCLOS to claim an outer continental shelf beyond 200 nautical miles in order to exploit the oil and gas resources found there. Article 76 allows States Parties whose continental shelf meet certain scientific criteria (relating to the geology and geomorphology of the seabed) to submit information supporting its proposed outer limit of its shelf to the Commission on the Limits of the Continental Shelf (CLCS). The CLCS is empowered to make final and binding recommendations on the establishment of the outer limits of the continental shelf. On December 14, 2012, after expending considerable resources collecting data on the seabed over a period of ten years, China made a partial submission to the CLCS on the outer limits of its continental shelf in the East China Sea. Its submission overlaps with Japan’s Exclusive Economic Zone in the East China Sea and unsurprisingly, prompted a protest from Japan.

China’s withdrawal from UNCLOS could compromise its outer continental shelf claim, even though the CLCS has yet to consider China’s submission. It is true that China will still have inherent rights to its continental shelf beyond 200 nautical miles under customary international law. However, it is not clear whether the scientific criteria used to establish the outer limits set out in Article 76 of UNCLOS have attained the status of customary international law.

Further, the primary benefit of the submission to the CLCS is that it strengthens the legitimacy of a State’s outer continental shelf claim vis-à-vis other States and provides the certainty necessary before oil and gas exploitation can take place. Indeed, in the 2012 decision of the International Tribunal for the Law of the Sea (ITLOS) inBangladesh v. Myanmar, much weight was placed on the fact that both parties had made submissions to the CLCS to substantiate their outer continental shelf claims even though the CLCS had yet to issue a final recommendation. Similarly, in the 2012 ICJ decision in Nicaragua v. Columbia, the fact that Nicaragua had not made a submission to the CLCS compelled the ICJ to discount Nicaragua’s claim to an outer continental shelf. If China withdraws from UNCLOS, its outer continental shelf claim will be subject to the vagaries and uncertainty of customary international law, which could potentially impact its’ position vis-à-vis Japan in the East China Sea.

Fourth, as a State Party to UNCLOS, China has the right to use the UNCLOS dispute settlement mechanisms set out in Part XV as well as participate in the institutions established under UNCLOS. While China has not as yet used Part XV, it has prepared lengthy submissions during the hearings of the two advisory opinions by the ITLOS. It is also a member of the ISA, had a representative on the Council (the decision-making body of the ISA) until this year, and presently has a representative in the ISA Legal and Technical Commission, which approves applications to explore and exploit the deep seabed. It has a member on the CLCS as well as a judge on ITLOS. Opportunities to participate in these institutions and use UNCLOS dispute settlement mechanisms are privileges given only to States Parties and allow States Parties to shape the way in which decisions are made in these respective institutions. These are not privileges that should be given up lightly.

Indeed, the United States has experienced all the disadvantages described above as a result of being outside the Convention system, contrary to what has been argued by Talmon. American business interests ranging from the oil, energy, shipping, fishing, and communications industries have consistently argued before the U.S. Senate that being a non-party to UNCLOS has undermined the commercial and strategic interests of the country. For example, it is unable to submit information to the CLCS on its outer continental shelf, thereby undermining the certainty of the limits of its continental shelf and consequently hindering the full exploitation of its seabed resources. Similarly, it has not been able to fully participate in the deep seabed regime in Part XI despite being one of the countries most heavily engaged in the exploration of the seabed prior to the adoption of UNCLOS.

Further, the U.S. Navy has constantly maintained that its non-party status has undermined its credibility in bilateral and multilateral relationships and compromised its global maritime operations. Successive administrations have supported ratification and it is only a small minority of intractable senators that have stymied the process. The question is whether China, a global maritime power, wants to be in the same position as the United States — having its core ocean interests determined by something as malleable and uncertain as customary international law.

Lastly, and perhaps most compellingly, China’s withdrawal from UNCLOS would undermine the already fragile belief in China’s commitment to a “peaceful rise” as a global superpower. UNCLOS establishes certain baseline expectations of how States should behave in the oceans and has hitherto provided a language through which the Claimants, even China, have communicated their positions and claims. As tensions in the South China Sea escalate on a daily basis, denouncing UNCLOS could irretrievably damage the trust and confidence of States in the region.  This would consequently derail any of China’s efforts to pursue its preferred course of action, namely a negotiated solution of the South China Sea disputes.

China’s potential non-compliance with the final award will inevitably harm its standing as a law-abiding member of the international community. To compound that with a knee-jerk denunciation of a long-standing and widely accepted legal regime could have far-reaching implications that are at odds with China’s long-term national interests. The non-ratification of UNCLOS by the United States is tolerated because the U.S. is perceived as faithfully complying with the UNCLOS regime. China’s denunciation after a tribunal has found its actions in the South China Sea contrary to UNCLOS will not be interpreted in the same light. There are many courses of action China can take after the Award is issued. Denouncing UNCLOS should not be one of them.

By TARA DAVENPORT Mar. 24, 2016 on The Diplomat

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