Tri­bunal pro­ceed­ings onManila’s claims flawed

China Daily (Canada) - - LIFE -

As is now well known, the Philip­pines has brought ar­bi­tra­tion pro­ceed­ings against China un­der theUnit­edNa­tions Con­ven­tion on the La­wof the Sea re­lat­ing to the South China Sea, and the Tri­bunal has re­cently given its de­ci­sion on whether it has ju­ris­dic­tion over the claims made by the Philip­pines. It found that it had ju­ris­dic­tion, al­though un­con­di­tion­ally only over three of the 15 sub­mis­sions made by the Philip­pines. The Tri­bunal has since heard ar­gu­ment on the mer­its of the var­i­ous claims, and is likely to give its rul­ing on them later this year. But looked at crit­i­cally the de­ci­sion of the Tri­bunal that it has ju­ris­dic­tion has a num­ber of weak­nesses.

As back­ground, UNCLOS em­pha­sizes that the States bor­der­ing a semi-en­closed sea, like the South China Sea, should co­op­er­ate to­gether in deal­ing with com­mon is­sues, even when there is no agree­ment about the mar­itime bound­aries be­tween them.

In ad­di­tion, UNCLOS sets out what mar­itime zones it is per­mis­si­ble for a coastal State to claim: a ter­ri­to­rial sea of twelve nau­ti­cal miles, an exclusive eco­nomic zone of 200 nau­ti­cal miles, and a con­ti­nen­tal shelf stretch­ing at least to 200 nau­ti­cal miles, but po­ten­tially ex­tend­ing be­yond that if the ge­o­log­i­cal con­di­tions are right. These mar­itime zones can­not be claimed from “low-tide el­e­va­tions”, that is fea­tures which are un­der­wa­ter at high tide. All of these mar­itime zones can be claimed from is­lands, ex­cept that “rocks which can­not sus­tain hu­man habi­ta­tion or eco­nomic life of their own” can only gen­er­ate a ter­ri­to­rial sea. This def­i­ni­tion of “rocks” is not easy to in­ter­pret and so far there has been lit­tle in­ter­na­tional case-law on what it might mean. How­ever, it is crit­i­cal to many of the ar­gu­ments of the Philip­pines that they al­lege that a large num­ber of the fea­tures in the South China Sea are ei­ther low-tide el­e­va­tions or “rocks”.

Un­der UNCLOS there are cer­tain cir­cum­stances in which a State is obliged to ac­cept that a dis­pute with an­other State can be put to ar­bi­tra­tion, but there are a sig­nif­i­cant num­ber of ex­cep­tions and lim­i­ta­tions to this obli­ga­tion, some of which are ex­er­cis­able at the op­tion of the State con­cerned. In other words, when it is said that un­der UNCLOS the States party have con­sented to ar­bi­tra­tion, this is true only in a very qual­i­fied way: they have only con­sented to ar­bi­tra­tion sub­ject to the ex­cep­tions and lim­i­ta­tions set out in UNCLOS. This is im­por­tant be­cause the pro­vi­sions in UNCLOS on the set­tle­ment of dis­putes were ac­cepted as part of a pack­age deal at theUNCon­fer­ence which adopted UNCLOS; it is ob­vi­ously im­por­tant to all par­ties to UNCLOS that the pack­age deal is not dis­turbed.

When the Philip­pines com­menced ar­bi­tra­tion pro­ceed­ings un­der UNCLOS, China de­clined to ap­pear, ar­gu­ing that the pro­ceed­ings were cov­ered by one of the ex­cep­tions in UNCLOS. Non­ap­pear­ance by a State in in­ter­na­tional pro­ceed­ings is ac­tu­ally not so un­usual. Most fa­mously, the United States de­clined to par­tic­i­pate in the pro­ceed­ings brought by Nicaragua in the In­ter­na­tional Court of Justice in the 1980s af­ter the Court had held that it had ju­ris­dic­tion.

So, on what ba­sis did the Tri­bunal find that it had ju­ris­dic­tion? The first point to note is that the Tri­bunal does not have ju­ris­dic­tion to ad­ju­di­cate upon the ter­ri­to­rial sovereignty over the var­i­ous land fea­tures in the South China Sea – even though it is com­mon knowl­edge that this is­sue is hotly dis­puted, not only by China and the Philip­pines, but also by Viet Nam, Malaysia and Brunei. In other words, the Tri­bunal can­not say that a par­tic­u­lar feature be­longs to China or the Philip­pines. This is be­cause the Tri­bunal only has ju­ris­dic­tion to de­cide on dis­putes over the “in­ter­pre­ta­tion or ap­pli­ca­tion” of UNCLOS, and UNCLOS of course is not con­cerned with re­solv­ing dis­putes over land ter­ri­tory. The Philip­pines rec­og­nized the dif­fi­culty here and ex­pressly de­nied that it was seek­ing a de­ci­sion on sovereignty over land ter­ri­tory.

De­spite this, the Tri­bunal took the viewthat it can de­cide upon the sta­tus of fea­tures in the South China Sea (ie whether they are “rocks” or low-tide el­e­va­tions), even though it can­not rule on which State the feature be­longs to. I have de­scribed this else­where as putting the sta­tus cart be­fore the sovereignty horse, and there ap­pears to be no prece­dent for an in­ter­na­tional tri­bunal pro­ceed­ing in such cir­cum­stances.

In reach­ing this con­clu­sion, the Tri­bunal asked it­self what was the “real is­sue” in the case brought by the Philip­pines, and de­cided that it was not about the sovereignty over the fea­tures, but about their sta­tus; thus, it said that it could rule on the lat­ter ques­tion with­out touch­ing on the for­mer. This is de­spite the re­cent prece­dent of the case brought byMau­ri­tius against theUnited King­dom, in which by bring­ing pro­ceed­ings un­der UNCLOS ques­tion­ing the va­lid­ity of the ma­rine pro­tected area de­clared around the Cha­gos Archipelago, Mau­ri­tius sought to dis­pute the sovereignty over the is­lands. The Tri­bunal in that case rightly sawthrough that de­vice and de­clined to ac­cep­tMau­ri­tius’s ar­gu­ment on this point. It is per­haps sur­pris­ing that the Tri­bunal in the Philip­pines case did not follow this prece­dent.

It is also im­por­tant to note that one of the ex­cep­tions in UNCLOS which China has made use of re­lates to mar­itime de­lim­i­ta­tion. Thus, there can be no com­pul­sory re­course to ar­bi­tra­tion in a case about mar­itime de­lim­i­ta­tion in­volv­ing China. But ac­tu­ally one of the key ques­tions in any mar­itime de­lim­i­ta­tion is: what is the sta­tus of the var­i­ous fea­tures in the mar­itime area be­ing de­lim­ited. This is be­cause, as we have seen, low-tide el­e­va­tions do not gen­er­ate mar­itime zones at all and “rocks” only gen­er­ate a ter­ri­to­rial sea. So, de­cid­ing upon the sta­tus of mar­itime fea­tures is an in­dis­pens­able com­po­nent in ef­fect­ing a mar­itime de­lim­i­ta­tion. In other words, de­lim­it­ing a mar­itime bound­ary nec­es­sar­ily in­volves also con­sid­er­ing the sta­tus of mar­itime fea­tures. There is a strong ar­gu­ment there­fore that the Chi­nese ex­cep­tion for mar­itime de­lim­i­ta­tion should also have been held to cover the ques­tion of the sta­tus of the mar­itime fea­tures which are an in­dis­pens­able part of ef­fect­ing a mar­itime de­lim­i­ta­tion.

Fur­ther­more, there is a well­known le­gal dic­tum that “the land dom­i­nates the sea”. In other words, a State’s en­ti­tle­ments to mar­itime zones de­pends upon the ter­ri­tory owned by that State. Thus, the In­ter­na­tional Court of Justice in its case-law has al­ways de­cided upon dis­putes over land ter­ri­tory be­fore pro­ceed­ing to pre­scribe a mar­itime bound­ary. So, there are three in­ter­de­pen­dent el­e­ments: the sta­tus of fea­tures, mar­itime de­lim­i­ta­tion and sovereignty over land ter­ri­tory. But even though the Tri­bunal ac­cepted that it has no ju­ris­dic­tion over the lat­ter two el­e­ments, it has de­cided to pro­ceed with the case on the ba­sis that it has ju­ris­dic­tion over the first el­e­ment.

One won­ders whether it was right for the Tri­bunal to pro­ceed in this way. The In­ter­na­tional Court of Justice has em­pha­sized in sev­eral cases that it must pro­tect the in­tegrity of its ju­di­cial func­tion. In the same way, it is le­git­i­mate to ask whether the Tri­bunal can be said to be act­ing with due ju­di­cial in­tegrity when it seeks to ex­er­cise ju­ris­dic­tion on the ba­sis that it can rule on one el­e­ment of a case, but not on two prior and in­dis­pens­able el­e­ments of that case.

China has al­ways main­tained that any dis­putes con­cern­ing the South China Sea should be set­tled by ne­go­ti­a­tion be­tween the par­ties, rather than through re­course to ju­di­cial pro­ce­dures, and in this re­spect it points to the Dec­la­ra­tion on the Con­duct of Par­ties in the South China Sea, signed by China and ASEAN (in­clud­ing the Philip­pines) in 2002, which states this ex­plic­itly. A doc­u­ment like the Dec­la­ra­tion may not be for­mally legally bind­ing in it­self, but to in­ter­na­tional lawyers it would nor­mally be re­garded as giv­ing rise to what is called an estop­pel. This is where State A makes a rep­re­sen­ta­tion to State B, which State B re­lies upon to its detri­ment; in such cir­cum­stances, State A can­not go back on its rep­re­sen­ta­tion. But in this case the Tri­bunal held that the Dec­la­ra­tion did not amount to a rep­re­sen­ta­tion by the Philip­pines. This is very dif­fi­cult to un­der­stand: the Dec­la­ra­tion was a jointly ne­go­ti­ated doc­u­ment, which was signed at a high level, so to say that it does not con­sti­tute a rep­re­sen­ta­tion seems odd. But the re­sult was that the Tri­bunal al­lowed the Philip­pines to re­sile from what had been said in the Dec­la­ra­tion and to pro­ceed with the ar­bi­tra­tion. This may be an un­for­tu­nate prece­dent: there are many tens of thou­sands of sim­i­lar doc­u­ments ne­go­ti­ated be­tween States, which may not be legally bind­ing, but which States feel they ought to abide by; the Tri­bunal’s de­ci­sion is there­fore po­ten­tially desta­bi­liz­ing in in­ter­na­tional re­la­tions gen­er­ally.

Fi­nally, un­der UNCLOS, the Tri­bunal is obliged to en­sure that a case is “well founded” be­fore pro­ceed­ing. One of the ar­bi­tra­tors in the Philip­pines case, speak­ing in an ear­lier case, likened this to the stan­dard “be­yond rea­son­able doubt” ap­plied in crim­i­nal cases in com­mon law coun­tries – which is of course an ex­act­ing stan­dard. The ques­tion here is ul­ti­mately whether the Tri­bunal ap­plied this high stan­dard in de­cid­ing that it had ju­ris­dic­tion to hear the Philip­pines’ claims.

The au­thor is for­mer Deputy Le­gal Ad­viser of the United King­dom’s For­eign and Com­mon­wealth Of­fice.

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