Is China trying use the COC to beef up its Article 281 defence?

Besides ‘we do not accept,’ another legal argument China used to argue that the Philippines case before An Arbitral Tribunal under Annex VII of UNCLOS was inadmissible was that the 2002 Declaration on the Conduct of Parties (DOC) in the South China Sea prevented arbitration as per UNCLOS Article 281. This article states that if states have agreed on a way to settle the dispute, no case can be brought in that area. However, the tribunal quashed the reasoning that the DOC prevents it from judging in this case in its award on admissibility of 29 October 2015.

Following the frenzy after the tribunal released its final decision on 12 July 2016, there have been various attempts to lower the tensions. Both sides appear committed to keep the peace, even if reaching an agreement proves difficult. At the same time, however, states are positioning themselves for future possible legal challenges. Some claimant states may see the Philippines’ success as encouragement to start their own cases. China must be preparing for such eventuality already by beefing up its legal defences. One area I think we should keep an eye on is Article 281.

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