The United Nations Convention on the Law of the Sea (UNCLOS) established an intricate legal framework for the oceans. Under the Convention’s Part XV: Settlement of Disputes, the Philippines instituted arbitration against China on Jan. 22, 2013 with a purported aim to seek a solution to the bilateral maritime dispute and adjudicate on the lawfulness of China’s actions in the South China Sea. The case brings into the spotlight some of the thorny issues that the practice of UNCLOS has long sought not to contend with and has led to situations previously unseen in the practice of the Convention. There is no doubt that when the arbitral tribunal renders its award on the case, it will be a moment of major significance for the settlement system, whose application is still in its infancy, and have considerable implications for the Convention on the whole.
The Philippines cleverly broke apart its territorial dispute with China into specific matters and included in its submissions those regarding historic rights, the status of certain maritime features and the entitlements they are capable of generating, and the lawfulness of China’s actions. These submissions, at first glance, seem not to concern the issue of delimitation. Yet the former set of issues would form the basis of determining sovereignty, while the latter can only be decided after territorial disputes are settled. The Philippines can’t just pretend not to know that these submissions are closely associated with delimitation, something beyond the scope of the tribunal’s jurisdiction. China is the Philippines’ maritime neighbor, not some faraway flag country or a distant country that occasionally sends fishing boats to the region. Four island groups lie between the two countries and their waters are yet to be delimited. The final ruling on these submissions would have a critical impact on any future process deciding sovereignty and delimitation matters. What has been left out of the arbitration by the Philippines is only delimitation in its narrowest sense. What is truly at stake in this arbitration is territorial rights and basis for delimitation. That is not something the Philippines can deny no matter how cleverly it works its case.
To begin with, the tribunal does not have the type of jurisdiction over the case as stated in UNCLOS Article 28. China ratified the Convention in 1996. The territorial dispute between China and the Philippines predates that and therefore does not fall into the scope of jurisdiction of the tribunal. Moreover, the settlement of the disputes mentioned in the Philippines’ submissions has to be based on the sovereignty, definition and status of these maritime features. They are not disputes involving “interpretation or application” of the Convention.
Second, the tribunal has no jurisdiction over the case, because China made a declaration in accordance with UNCLOS Article 298 in 2006 excluding its territorial disputes from compulsory settlement procedures. The Philippines’ submissions mentioned the definition and legal status of certain maritime features and the maritime entitlements they generate as well as the lawfulness of certain actions, which are either an integral part of or dependent on the process of delimitation. That renders its arbitration request invalid, for China has excluded the compulsory procedures under Part XV Section 2, making the disputes no longer subject to settlement through arbitration.
Last but not least, made upon signature and confirmed upon ratification of UNCLOS, the Philippines issued an understanding, which states that “The agreement of the Republic of the Philippines to the submission for peaceful resolution, under any of the procedures provided in the Convention, of disputes under article 298 shall not be considered as a derogation of Philippines sovereignty”. That shall be viewed as making optional exceptions to applicability of Section 2, again demonstrating that the tribunal has no jurisdiction over this type of disputes.
On Oct. 25, 2015, the tribunal rendered judgement on jurisdiction and admissibility on the case. The Philippines’ core submissions questioning the source of China’s rights in the South China Sea are summarized by the tribunal as “seeking … a ruling on the effect of the United Nations Convention on the Law of the Sea on China’s claims to ‘historic rights’ within its so-called ‘nine-dash line’”, which diverged from the Philippines’ text and the basic geographical facts concerning the disputes. The tribunal apparently did so in a carefully calculated move to deliberately avoid addressing the Philippines’ core concern, which is about territorial disputes, in order to artificially put the Convention back at the center of the arbitration.
In this case, it is easy to predict that the upcoming verdict by the tribunal will not be in China’s favor, as it is certain that claims to sovereignty-related historic rights beyond territorial seas will not be recognized under UNCLOS. However, if UNCLOS becomes the sole basis for delimitation, China’s maritime boundaries with its South China Sea neighbors will deviate drastically from the “nine-dash line.”
That being said, by switching the disputes in question, the tribunal has put its own authority in question in front of all political leaders, professional experts and ordinary citizens. It gives us enough reason to be concerned about what would become of China’s maritime entitlements in the South China Sea if we let UNCLOS serve as the sole exclusionary source of such entitlements.
