The South China Sea Saga Continues*

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Introduction

On 29 October 2015, the Arbitral Tribunal constituted under Annex VII of the 1982 United Nations Convention on the Law of the Sea (“LOSC”) on the initiative of the Philippines rendered its highly anticipated Award on Jurisdiction and Admissibility in the Philippines v China case. The Tribunal found itself competent to rule on seven out of fifteen submissions lodged by the Philippines, whereas it will decide whether it has jurisdiction over the remaining submissions at the merits stage. Although the Award addresses preliminary issues it is valuable for it deals with a range of issues of particular interest with respect to international law and the law of the sea as well as because it may serve as a precursor for what will follow in the examination of the merits. In any event, the Award is another sequel to the long-standing South China Sea (“SCS”) conundrum, while definitely there is more to come.

The South China Sea dispute

In 1948, China published an atlas depicting a dotted line encompassing the entire SCS region, but it was only in the 1970s that these assertions were contested owing to the emergence of new states during the decolonization era (the states bordering the SCS are China, Vietnam, the Philippines, Malaysia, Brunei, Singapore and Indonesia as well as Taiwan). The situation deteriorated after China reacted  via a Note Verbale in 2009  to the submission of Vietnam (a joint submission was also filed during that period by Vietnam and Malaysia) to the Commission on the Limits of the Continental Shelf (“CLCS”) claiming continental shelf rights beyond the limit of 200 nautical miles (“nm”) perforce Article 76(8) of the LOSC. In its Note Verbale, China stated that it asserts sovereignty over all island formations (Pratas Islands, Paracel Islands, Scarborough Shoal, Spratly Islands) hemmed in a “nine-dash line” (or “U-shaped” or “bull’s tongue” line) illustrated in map attached to the Note  and, accordingly, claims sovereign rights and jurisdiction over the waters, seabed and subsoil adjacent to those features’ coasts. This was the first time China had circulated a map depicting the “nine-dash” line through an official document.

The Philippines v China arbitration

On 22 January 2013, the Philippines initiated arbitration proceedings against China under Annex VII LOSC. Both the Philippines and China are state parties to the LOSC, which in Part XV envisages a dispute settlement apparatus. According to Article 287(1) LOSC a state party has the option to choose one or more judicial fora from the four available before which it can submit its disputes with another state party (1. International Court of Justice 2. International Tribunal for the Law of the Sea 3. Arbitral Tribunal under Annex VII 4. Special Arbitral Tribunal under Annex VIII). As neither the Philippines nor China have opted for one of the aforementioned judicial organs, an Arbitral Tribunal under Annex VII seised jurisdiction as the “default” forum competent to adjudicate a dispute between these two states (Article 287(3) LOSC).

In a nutshell, the Philippines seeks an award recognising the invalidity of the “nine-dash” line; determining the status of the insular features in the SCS in order to ascertain whether and to what extent they are entitled to generate maritime zones; and declaring that China has acted in contravention of the LOSC “by interfering with the exercise of the Philippines’ sovereign rights and freedoms under the Convention”.   It should be pointed out that, the Philippines has crafted their arguments very carefully in order to avoid rejection of the case by the Tribunal on the basis of lack of jurisdiction. In particular, the Philippines has repeatedly made clear that it pursues neither a decision addressing the sovereignty status of the insular formations in the SCS nor a delineation of maritime boundaries as China has excluded disputes concerning delimitation from adjudication under Part XV LOSC (Article 298(1)(a)(b)(c) LOSC), while territorial sovereignty conflicts fall outside the scope of the LOSC dispute settlement mechanism.

Although China had explicitly rejected the possibility to participate in the proceedings, the Tribunal went on to examine whether it has jurisdiction to hear the case and whether the claims of the Philippines were admissible reiterating the principle that China’s non-appearance should not impair the Chinese positions (“there will be no “default” judgment”), even though the final award will be binding upon both parties (paras 11-12, 112-123 of the Award). The Tribunal considered China’s Position Paper published on 07 December 2014 as setting out the objections of China to the Tribunal’s jurisdiction. Eventually, the Tribunal decided it has jurisdiction to consider Submissions Nos. 3,4,6,7,10,11, and 13, whereas it will resolve whether it is competent to rule on Submissions Nos. 1,2,5,8,9,12,14, and 15 on the merits.

Moreover, the Tribunal found that there was a sufficient exchange of views satisfying the prerequisites of Article 283 LOSC for recourse to arbitration. Further, even though the Tribunal recognised the existence of a dispute between the parties concerning land sovereignty over insular features, however it accepted that the Philippines’ submissions did not touch upon this matter (para 152). Further, the Tribunal resolved that the absence of other interested states (Vietnam, Malaysia, Indonesia, Brunei) from the proceedings did not constitute a bar to its jurisdiction (paras 179-188). Also, the Tribunal discussed China’s position that the Declaration of Conduct signed by the ASEAN members in 2002 (“DOC”), which provides for the resolution of the parties’ disputes through friendly consultations and negotiations, renders the Tribunal incompetent to hear the case under examination. Despite the fact that China had –rightly- argued that the term “undertake” used in the DOC (“the Parties undertake to respect the provisions of this Declaration”) entails a binding effect, the Tribunal decided that the DOC “was not intended to be a legally binding agreement with respect to dispute resolution” (paras 198-229). In addition, the Tribunal considered neither the Treaty of Amity and Cooperation in Southeast Asia nor the Convention on Biological Diversity as posing a bar to the application of Part XV LOSC (paras 265-269, 281-289).

What comes next?

Although the Tribunal could have reserved its decision on jurisdiction and admissibility on the merits (as in the Chagos Archipelago case), the bifurcation of the proceedings provides China with another opportunity to participate (para 18), despite the unlikelihood of this. A possible outcome of the award on the merits might be the ascertainment that the insular formations under scrutiny are either low-tide elevations (entitled to no maritime zones) or rocks (entitled only to a territorial sea and a contiguous zone). As a result, the only source of maritime entitlements for China would be its continental land, thereby diminishing the maritime space it will be capable of claiming.

At any rate, by satisfying itself that it has jurisdiction, the Tribunal has already made a breakthrough and remains to be seen whether it will fulfill the expectations and render a landmark judgment with respect to such a controversial case. The Tribunal has undertaken a herculean task, namely to define the status of several insular features; to examine the compliance of China’s alleged historic rights with the LOSC; to resolve whether the Chinese activities have been detrimental to the sovereign rights of the Philippines. Even if China does not conform to the award on the merits, the forthcoming award should be seen as another step towards the normalisation of the situation in this volatile region and not the end of the road.

* Posted on Cambridge Journal of International and Comparative Law (27 February 2016)

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