As is now well known, the Philippines has brought arbitration proceedings against China under the United Nations Convention on the Law of the Sea (UNCLOS) 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 fifteen 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 emphasises 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 the UN Conference 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. Non-appearance 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 recognised the difficulty here and expressly denied that it was seeking a decision on sovereignty over land territory.
Despite this, the Tribunal took the view that 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 by Mauritius against the United 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 saw through that device and declined to accept Mauritius’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 well-known 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 emphasised 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 destabilising 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.
