Case Summary/Case Digest: Republic of the Philippines vs. People’s Republic of China (South China Sea territorial dispute) See: published version http://foreignpolicyproject.org/2017/03/21/policy-report-rule-of-law-and-peacehttp://foreignpolicyproject.org/2017/03/21/po licy-report-rule-of-law-and-peaceand-order-in-the-south-china-sea-and-the-west-philippine-sea/
Rule of Law La w and Peace Pea ce and Order Orde r in the South China Sea and the West Philippine Sea1 By: Catherine S. Panaguiton
! #$
%&'$ () *($+ ,&-. &/0 1)). &( &11 2%3/&4* &-(3'3(3$* &/0 (%$ )/$ 5)6 7$/(3)/$088 !"# %&'()* +,%'*%)- %) !"# ./,!" 0"%)( .#( 9 (%$ 0$-1&:&(3)/ ); -)/(:)1 )/ &3:*+&-$ 3/ <&($:* )'$: (%$ =$/.&.6 3*1&/0* 3/ >&+&/88 ?)(% ); (%)*$ &:$ %''#-(' (1!%/)& 88 (%$5@:$ ABC2D (&.3/E ($::3():3&1 G -)/(:)1 ); ($::3():3$* (%&( &:$ /)( :3E%(;6115 2%3/&4*88F HHHH I6)($ ;:)7 C$J K311$:*)/9 L)/&10 K:67+4* +3-. ;): &/0 M=4* /$<15 -)/;3:7$0 =$-:$(&:5 ); =(&($9 06:3/E 3/ %3* -)/;3:7&(3)/ %$&:3/E 3/ >&/6&:5 GNOP
This sentiment echoes the Arbitral Tribunal ruling in the Republic of the Philippines vs. People’s Republic of China case. The Award discussed the two key phrases in the above statement: i. ii.
“China’s activities… island building in the South China Sea” “are illegal actions”
1
This paper was made while the author was under the Fellowship Program at the Japan Institute for International Affairs (JIIA) in Tokyo, Japan. This author wishes to especially acknowledge her colleagues at the JIIA for their kind assistance: Mr. Tetsuo Kotani, Senior Fellow (JIIA), Japan-US Alliance, Maritime Security, Mr. Ryosuke Hanada, Fellow (JIIA), Political and Economic Issues in Australia, India and ASEAN and Ms. Yuko Hirayabashi, Research Assistant (JIIA). In addition, this author likewise extends her gratitude to Capt. Raul (Pete) Pedrozo, United States Deputy General Counsel Defense POW/MIA Accounting Agency (DPAA); and Prof. Dr. Timothy Stephens, Professor of International Law, Australian Research Council Future Fellow Deputy Director, University of Sydney Marine Studies Institute, for their invaluable inputs.
2
Excerpt taken from the video of Rex Tillerson during his confirmation hearing dated 11 January 2017, accessed 25 January 2017, https://www.youtube.com/watch?v=SnI1l68-vz4.
This paper briefly explains items (i) and (ii).3 Then it later on goes deeper as to the legal and practical implications of the case to the judicial and political spheres and key actors of littoral 4 and affected states, respectively. Specifically, the paper provides examples of significant legal doctrines that may be useful for and legally permissible actions of littoral and affected states in areas in the SCS and WPS, as per the ruling made by the arbitral tribunal in the Republic of the Philippines (RP) vs. People’s Republic of China (PRC) case. However, be it noted that although the award declares certain legally permissible actions in the South China Sea 5 and West Philippine Sea 6, there are still issues on the practicability of the full implementation of these actions. Key states play vital roles in the manner and extent of enforcement of the award. The manner and extent of enforcement of the award are partly determined by the foreign policy of these key states. Presently, the precise direction and/or probability and/or outcome of the enforcement of the award remain uncertain. This paper briefly goes over possible directions and/or probability and/or outcome of the enforcement of the award particularly from RP standpoint vis-à-vis recent notable political events in gauging the current state of Rule of Law in the SCS and WPS. Rule of Law aspects will also be examined and their relation t o maintenance of peace and order, in the context of the SCS and WPS dispute. Pre-conceived notions of Rule of Law being automatically synonymous to peace and order may be reconsidered. Brief Background Behind the Institution of the Case Chinese incursions in disputed waters in the SCS and WPS started from as early as the 1950s. However, they were scant and far in between. As decades passed, Chinese surveillance and incursions and the incidents between PRC, RP and Vietnam have increased in these areas. Rapid reclamation activities by PRC and the construction of installations on them (many of which are of a military nature)7, amidst protests by its neighbors (including the Philippines) and claimant states, have likewise increased the tensions. After having exhausted political and diplomatic avenues for a peaceful negotiated settlement of its disputes with the PRC over entitlements in the SCS
3
“China’s activities” would refer to iteration of definite Chinese actions in the SCS and WPS. “are illegal” would pertain to how these definite Chinese actions violate rules and which specific rules. (In this case, it is international law in general and UNCLOS, in particular). 4
i.e. RP, Vietnam etc.
5
Hereinafter, “SCS”.
6
Hereinafter, “WPS.”
7
“The True Scope of China’s Land Reclamation Activities in the South China Sea”, accessed 25 January 2017, http://www.valuewalk.com/2015/09/chinas-land-reclamation-activities-in-the-southchina-sea/.
and WPS, which came to a boil when PRC seized Panatag (Scarborough) Shoal off the RP’s Zambales Province in 2012, 8 the RP initiated arbitration in January 2013.9 Summary of the Facts, Issues and Ratio of the Arbitral Tribunal Quick Facts on the Arbitration Case
Seat of Arbitration: Arbitrator (s): 5
Length of Proceedings: Date of commencement: Date of issue of final award:
Netherlands Judge Thomas A. Mensah (Ghana) Judge Jean-Pierre Cot (France) Judge Stanislaw Pawlak (Poland) Professor Alfred H. Soons (Netherlands) Judge Rudiger Wolfrum (Germany) 3-4 years 22-01-2013 12-07-2016
Main Relief Prayed for By the Philippines in Filing the Case
For the Arbitral Tribunal to rule that PRC activities in the SCS are illegal under international law and violates PH rights under international law. Steps that Need to be Undertaken by the RP to obtain Relief
1. RP needed to convince the Arbitral Tribunal that it had jurisdiction over the case and the claims are admissible. a. RP must prove that it had jurisdiction even if PRC did not participate in any stage of the case. PRC states that as PRC did not participate in the case in any stage, the tribunal has no jurisdiction over it. Thus, the case must be dismissed. The general rule in institution of suits is that everyone has a right to due process. That is, if a state is not able to be heard and defend itself before the court, a judgment rendered against it has no binding effect. This covers states that have suits filed against it in international courts such as PRC. PRC contends that as it has not appeared before the tribunal and explained its position, judgment rendered against it has no binding effect.
8
“Duterte Optimistic About Outcome in the South China Sea Arbitration Ruling”, accessed 11 October 2016, http://www.gmanetwork.com/news/story/572494/news/nation/duterte-optimisticarbitration-court-will-rule-in-favor-of-phl-on-sea-dispute.
9
Institute for Maritime Affairs and Law of the Sea, UP Colle ge of Law (UP IM LOS), Press Release, 13 June 2016, http://ac.upd.edu.ph/index.php/resources/the-asian-center-blog/873-upimlos-publishes-case-digest-summary-of-findings-on-south-china-sea-arbitration.
However, in the instant case, an exception was applied by the arbitral tribunal10. The tribunal ruled that PRC was given notice in every step of the suit and multiple chances to explain its side and defend itself. PRC refused to avail of the opportunities given to it pursuant to procedural rules and RP will not be prejudiced by this refusal. 11 b.
RP must argue successfully that the RP vs. PRC case is not a sovereignty dispute.
PRC contends that the suit is a sovereignty dispute and not a dispute concerning the interpretation or application of the Convention. Under Article 288 of the UNCLOS , the tribunal only has jurisdiction over disputes concerning the interpretation or application of the Convention and NOT sovereignty disputes. PRC contends that it is of such nature because only after the extent of CH’s territorial sovereignty in SCS is determined can a decision be made on whether CH’s maritime claims in SCS have exceeded the extent allowed under the Convention.12 Further, PRC furthers that the question of the legality of CH actions in SCS is dependent upon the resolution of the question of its sovereignty over relevant maritime features and maritime rights derived therefrom. The tribunal in the case disagreed with the foregoing PRC position. It ruled that the case is a dispute concerning the status of maritime features in features in the SCS. It therefore involves the interpretation and application of UNCLOS. It is not a sovereignty dispute. And even assuming arguendo that passing upon questions of sovereignty is unavoidable, this does does not render the case case dismissible. As stated in the United States Diplomatic Consular Staff in Tehran case13:
10
states: UNC LOS states: Article 9( 9 ( Default of appearance ) of Annex VII, UNCLOS “If one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case, the other party may request the tribunal to continue the proceedings and to make its award. Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings. Before making its award, the arbitral tribunal must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fa ct and law.” x x x “Despite CH’s non-appearance, it remains a Party to the proceedings, with the ensuing rights and obligations, including that it will be bound by any decision of the Tribunal.” (citing , “Artic Sunrise Case” Kingdom of Netherlands vs. Russian Federation and Nicaragua vs. United States; See Award on Jurisdiction, para. 114, citing Military and Paramilitary Activities in and against Nicaragua Nicaragu a (Nicaragua (Nicarag ua v. United States), Merits, Mer its, Judgment, Judgmen t, ICJ Reports Repor ts 1986 , p. 14 at p. 24, para. 28; Arctic Sunrise (Kingdom of the Netherlands Netherland s v. Russian Federation), Federation ), Provisional Provisiona l Measures, Measures , Order of 22 November 2013, ITLOS Reports 2013 , p. 230 at p. 242, para. 51; Arctic Sunrise Arbitration (Kingdom of the Netherlands Netherland s v. Russian Federation), Federation ), Award on Jurisdiction of 26 November 2014, para. 60; Arctic Sunrise Arbitration (Kingdom of the Netherlands Netherland s v. Russian Federation), Award on the Merits of 14 August 2015, para. 10.) 11
See Award, paras. 116-128, p.113. See Award, paras. 628-633, pp 255-256. 13 United States Diplomatic and Consular Staff in Tehran (United States v. Iran), Judgment, ICJ Reports 1980 19 80, p. 3 at p. 43, para. 93. 12
“There are no grounds to decline to take cognizance of one aspect of aspect of the dispute merely because that disputes has other aspects, however important.” important.”
For as long as the case primarily involves the determination of the status of maritime features, even if there are questions of sovereignty that are involved, but for as long as these questions are just in the periphery, the tribunal has jurisdiction to the case14. c. RP must be able to further that the RP vs. PRC case is not a maritime boundary delimitation case. PRC submitted that the subject matter of the proceedings is an integral part of the dispute of maritime boundary delimitation between RP and PRC. Thus, this makes the case accordingly excluded from the Tribunal’s jurisdiction under Article 298 of the UNCLOS UNCLOS . The tribunal disagreed with this position. Following the doctrine (and in the process, firming up the doctrine) in Nicaragua vs. Colombia that ‘Maritime boundary delimitation does not arise unless there are overlapping maritime entitlements’15, it outlined several steps that ought to be undertaken to determine whether or not it is a maritime boundary delimitation case. These steps are in the below and in this particular order: (1) Determine the character and nature of the maritime features; (2) Consequently, determine the entitlement to maritime zones based on (1) and; (3) Determine the existence of overlapping zones between the two states asking this question. After the foregoing steps are undertaken and there were indeed found to be overlapping zones between the two states, then the case is a maritime boundary limitation case. PRC conflated all the steps, which the tribunal corrected in this case. In the end, the tribunal ruled that after determining the status of maritime features, there are no overlapping zones in this case. Hence, the case is not a maritime boundary delimitation case.16 d. RP must overcome all other preliminary questions posed by PRC assailing the jurisdiction of the Court. (1) RP must prove that its act of initiating arbitration does not per se constitute se constitute an abuse of process. PRC contended that RP’s initiation of the arbitration case is “an abuse of compulsory dispute settlement procedures.” 17 Although 14
See Award on Jurisdiction, paras. 401, 403. See Award, para. 392, p. 177. 16 See Award on Jurisdiction, para. 146. 17 See Award, para. 124. 15
the tribunal noted that PRC has not specifically tied its allegations to Articles 300 18 and 294 19 of the UNCLOS , the tribunal still interpreted the above statement as pertaining to these aforementioned provisions. The tribunal ruled that RP’s act of initiating arbitration does not per se constitute an abuse of process. China has not made an application to the tribunal pursuant to Article 294 (1) of the Convention, and the Tribunal is therefore under no obligation to follow the procedure outlined in Article 294 (2). Further, while the Tribunal is entitled to determine proprio motu whether the Philippines’ claim constitutes an abuse of process or whether prima facie it is unfounded, it declines to do so in the present case.20 The tribunal ruled that the question of whether or not there is an abuse of process will only be passed upon by the tribunal provided that there is a “blatant showing” of abuse. In the instant case, there is no such blatant showing of abuse, so the tribunal even refused to consider this as a valid question.
(2) RP must convince the tribunal that the exchange of views between RP and PRC as required by Article 283 of the UNCLOS has already been fulfilled. PRC contends that the requirement of exchange of views under Article 283 of the UNCLOS 21 has not yet been fulfilled. If this is merited by the court, it renders the case dismissible. RP argued that it had met the requirements of Article 283 by virtue of “two exchanges in 1995 and 1998 that by themselves show this 18
Article 300 of the UNCLOS reads: “State Parties shall fulfill in good faith the obligations assumed under this Convention and shall exercise the rights, jurisdiction and freedoms recognized in this Convention in a manner which would not constitute an abuse of right.” 19 Article 294 of the UNCLOS reads: “1. A court or tribunal provided for in article 287 to which an application is made in respect of a dispute referred to in article 297 shall determine at the request of a party, or may determine proprio motu, whether the claim constitutes an abuse of legal process or whether prima facie it is well founded. If the court or tribunal determines that the claim constitutes an abuse of legal process or is prima facie unfounded, it shall take no further action in the case. 2. Upon receipt of the application, the court or tribunal shall immediately notify the other party or parties of the application, and shall fix a reasonable time-limit within which they may request it to make a determination in accordance with paragraph 1. 3. Nothing in this article affects the right of any party to a dispute to make preliminary objections in accordance with the applicable rules of procedure. 20 See Award on Jurisdiction, para. 128. 21 Article 283 of the UNCLOS reads: “Obligation to exchange views 1. When a dispute arises between States Parties concerning the interpretation or application of this Convention, the parties to the dispute shall proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means. 2. The parties shall also proceed expeditiously to an exchange of views where a procedure for the settlement of such a dispute has been terminated without a settlement or where a settlement has been reached and the circumstances require consultation regarding the manner of implementing the settlement.”
requirement to have been satisfied.” The Philippines also noted that, in its view, China’s Position Paper itself demonstrates “that the obligation to exchange views on the means to settle the dispute has been satisfied.” 22 The arbitral tribunal ruled that the Parties (RP and PRC) have already exchanged views as required by Article 283 23 of the Convention, meriting RP’s above contention.
(3) RP must prove that the following instruments/statements do not preclude recourse to compulsory settlement procedures Convention. Hence, available under Section 2 of Part XV of the Convention. 24 the case can proceed : a) b) c) d)
2002 China-ASEAN Declaration on Conduct of Parties in the SCS Joint statements of the Parties referred to in pars. 231-232 231-232 of the Award Treaty of Amity and Cooperation in the Southeast Asia Convention on Biological Diversity
PRC furthers that items (a) – (d) makes for arbitration an improper action for RP. Hence, the case must be dismissed. As for (a) and (b) , the tribunal stated that the non-binding nature of these instruments and the lack of prescribed procedures do not preclude recourse to arbitration.25 As for (c) and (d) , although these are considered as binding instruments, the lack of declaration in these instruments specifically barring recourse to arbitration makes for arbitration still a valid action for RP. 26 22
See Award on Jurisdiction, para . 330 citing Jurisdictional Hea ring Tr. (Da y 2), p. 27; Government of the Republic of the Philippines and Government of the People’s Republic of China, Philippine-China Bilateral Consultations: Summary of Proceedings (20-21 March 1995) (Annex 175); Republic of the Philippines, Department of Foreign Affairs, Record of Courtesy Call on Chinese Vice Premier and Foreign Minister Qian Qichen (21 March 1995) (Annex 176); Summary of Proceedings: Philippine-China Bilateral Consultations (20-22 March 1995) (Annex 177); Government of the Republic of the Philippines and Government of the People’s Republic of China, Joint Statement: Philippine-China Experts Group Meeting on Confidence Building Measures (23 March 1995) (Annex 178); Department of Foreign Affairs of the Republic of the Philippines, Transcript of Proceedings: RP-PRC Bilateral Talks (9 August 1995) (Annex 179); Government of the Republic of the Philippines and Government of the People’s Republic of China, Agreed Minutes on the First Philippines-China Bilateral Consultations on the South China Sea Issue (10 August 1995) (Annex 180); Government of the Republic of the Philippines, Transcript of Proceedings Republic of the Philippines-People’s Republic of China Bilateral Talks (10 August 1995), p. 3 (Annex 181). Government of the Republic of the Philippines and Government of the People’s Republic of China, Joint Pres
23
See Award on Jurisdiction, para. 342. See Award, para, 159 p. 60. 25 Ibid. 26 Ibid. 24
2. RP needed to convince the tribunal of the Merits of the case. Specifically, that China does not have legal rights to the areas in the SCS and hence, its actions there are unlawful as well. To do this, RP needed to prove three things: A) It needed to invalidate the nine-dashed line theory of China and the rules under UNCLOS prevails; B) Within the UNCLOS regime, RP and not PRC has rights in zones within the SCS where PRC conducts the activities complained of; and C) As the RP and PRC has rights has rights in zones within the SCS where PRC conducts the activities complained of, actions within these areas violate specific provisions of the UNCLOS. RP was successful in proving A-C . RP’s arguments, PRC’s counter-arguments to the tribunal ruling are in the following: A) It needed to invalidate the nine-dashed line theory of PRC and prove that the rules under UNCLOS prevails; PRC claims to have legal rights over areas within the red area in the figure fi gure below based on “historic rights”. This runs counter to rules of UNCLOS which shows entitlements to EEZs by states as seen in blue in the figure below. First step that RP must do is to invalidate the nine-dashed line. In the end, the arbitral tribunal ruled that PRC never had historic rights in the SCS, before and even after it signed on the UNCLOS. 27 There was no hard evidence of CH claiming sovereignty 28 i.e. historical navigation and fishing in SCS. Thus, “China’s ratification of the Convention did not extinguish historic rights in the waters in the South China Sea. Rather, CH relinquished the freedoms of the high seas that it had previously utilised, utilised, when these areas are placed within the ambit of the EEZ of other states by virtue of UNCLOS.” 29
And even assuming arguendo 30 that it did have these rights prior to UNCLOS, these rights have been extinguished when it signed on the UNCLOS. 31 Specifically the tribunal ruled that, 27
See Award, para. 270. Historic rights are predicated on sovereignty and not sovereign rights claims. See Award par. 265. 29 See Award, par. 271. 30 For the sake of argument. 28
“The text and context of UNCLOS is clear in superseding any historical rights that a State may once have had in the areas that form part of the EEZ and CS of another state.” 32
Figure 1. Extent of China’s maritime claims and EEZs of l ittoral states under the UNCLOS
B) RP must prove that within the UNCLOS regime, RP and not PRC has rights in zones within the SCS where PRC conducts the activities complained of; To prove that RP had rights to areas, it must be able to convince the tribunal to declare the status of maritime features as “rocks” or “low tide elevations” and not “islands.”
31
See Award, par. 246. See Award, par. 247.
32
The Table below provides a summary of maritime features that RP asked the tribunal to rule upon, RP submissions as to their status, PRC positions on the maritime features as per its Position Paper and Diplomatic Communications 33 and finally, the Tribunal ruling on the status of the maritime features. The declarations of the status of maritime features in the SCS . Specifically, these were classified as “rocks”, “islands” 34, “high tide elevations (HTEs) and low-tide elevations (LTEs)” (Kindly refer to Annex A A herein to see the table showing descriptions of classifications of maritime features as discussed).
Name of Feature
RP Submissions
LTE
HTE Rock Island
PRC Submissions in Diplomatic Comms, PP THE Rock Island
Tribunal Ruling
LTE
HTE Rock Island
Itu Aba
!35
!36
!37
Thitu
!38
!39
!40
West York
!41
!42
!43
Scarborough Shoal
!44
!45
!46
Johnson Reef
!47
33
!49
PRC never made any submissions through a pleading throughout the whole case. Its position on the maritime features was determined by the arbitral tribunal through the Position Paper it submitted and Diplomatic Communications to RP and the arbitral tribunal.
34
Fully Entitled Islands. See Explanation in Annex A. A.
35
See Award, paras. 426-427. See Award, para. 100. 37 See Award, para. 625. 38 See Award, par. 426. 39 See Award, para. 301 40 See Award, para. 625. 41 See Award, para. 426. 42 See Award, para. 301 43 See Award, para. 625. 44 See Award, para. 423. 45 See Award, para. 244. See also Award, paras. 299 and 461. 46 See Award, para. 282. See also Award, paras. 554 and 643. 47 See Award, para. 423. 49 See Award, para. 282. 36
Cuarteron Reef
!50
N/A48
!51
Gaven Reef
!52
!53
McKennan Reef (inc. Hughes Reef) Fiery Cross Reef
!54
!55
Mischief Reef
!59
HTE 60
!62
N/A
63
!64
N/A65
Second Thomas Shoal Subi Reef
!56
HTE 57
!58 !61 (Part of PH EEZ)
!66
Table. Summary of the Tribunal Ruling on Status of Maritime Features67. 50
See Award, para. 423. N.A. stands for “Not Applicable”. This means that PRC never made any declaration as regards its position with respect to the indicated features. See Award, para. 302 stating that “Where China has not publicly stated its specific view regarding the status of a particular feature xxx”, meaning China did not give a particular position regarding the status of all maritime features subject of the dispute and para. 472 stating “As far as the Tribunal is aware, China has not made any specific statements about the status of Johnson Reef, Cuarteron Reef, Fiery Cross Reef, Gaven Reef (North), or McKennan Reef for purposes of 121 (3) of the Convention xxx”. However, please see Award, para. 301 stating that “China has (also) commented on the entitlements of the maritime features of the Spratlys Islands collectively, stating that “China’s Nansha Islands is fully entitled to Territorial Sea, Exclusive Economic Zone and Continental Shelf”. Features in the Spratlys Island Group are the following: Itu Aba, Thitu, West York, Spratly Island, Northeast Cay, Southwest Cay, Sin Cowe, Nanshan, Sand Cay, Loaita, Namyit, Amboyna Cay, Flat Island, Lankam Cay.
48
51
See award, para. 282. See Award, para. 292. 53 See Award, para. 282. 54 See Award, para. 292. 55 See Award, para. 282 56 See Award, para. 423. 57 See Award, para. 300. 58 See award, para. 282 59 See Award, para. 292. 60 See Award, para. 300. 61 See Award, para. 381. 62 See Award, para. 292. 63 See Note at 25. 64 See Award, para. 292. 65 See Note at 25. 66 See Award, para. 383. 52
67
Please note that for purposes of reading the table, HTE stands for high tide elevation and LTE stands for low tide elevation. Further, the arbitral tribunal determined the status of these maritime features based on their original state and not after human modifications have been employed upon them (i.e. reclamation activities). The table must be read like so: the check marks that are found in the intersection of the name of the island and the PH Submissions, CH Submissions and Arbitral
There are significant practical implications as to the declaration of the above maritime features. Determining whether a feature is a “rock” or an “island”, or an HTE or LTE, has an effect as to what could be legally permissible actions of the RP and other littoral and affected states within areas of these features. To illustrate, examples may be helpful. Example 1: Mischief Reef Reef as an LTE and not as an HTE The tribunal in this case ruled that Mischief Reef is a LTE and not a HTE. And as a LTE, it is deemed to be part of RP’s EEZ. 68 As the tribunal discussed in the award, the treatment then of Mischief Reef, per the ruling, shall not even limited to treating it as a “rock” that is entitled to a 12 nautical mile (NM) territorial sea, as some operations by states prior to the ruling treated it to be69. Any transit within 12 NM of such artificial islands consistent with innocent passage would amount to tacit consent to China's position that these features possess territorial seas — a position directly at odds with UNCLOS.70 It should then be treated as part of the PH EEZ, with all the rights and obligations of RP as a coastal state, and with due regard to rights of other states under the UNCLOS. Specifically, for RP, Mischief Reef being part of EEZ entitles it to all the rights, jurisdiction of the coastal state under Article 56 of the UNCLOS UNCLOS , such as, ‘sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, resources , whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds.’ 71
Tribunal Ruling would provide the answers on PH Submissions, CH Submissions and Arbitral Tribunal Ruling of the particular feature. For example, for the maritime feature of Mischief Reef, RP’s position is that it is an LTE or a Low Tide Elevation. PRC on the other hand, believes otherwise-that it is a HTE or a High Tide Elevation based on its Position Paper and/or Diplomatic Communications. The Arbitral Tribunal sided with RP on this note stating that it is a LTE. This format applies to the rest of the table. Islands discussed in this table will refer to “Fully Entitled Islands” Islands” as described in Annex A herein. 68
See Table.
69
Herscovitch, Be n. “Both Coali tion and Labor Weak On South China Se a Freedom of Navigation”. https://www.lowyinstitute.org/the-interpreter/both-coalition-and-labor-weak-southchina-sea-freedom-navigation.
70
Ibid.
71
Ibid.
For states other than RP, they have “(a) freedom of navigation; (b) freedom of overflight; (c) freedom to lay submarine cables and pipelines, subject to Part VI; (d) freedom to construct artificial islands and other installations permitted under international law, subject to Part VI; (e) freedom of fishing, subject to the conditions laid down in section 2; (f) freedom of scientific research, subject to Parts VI and XIII.” 72 As earlier mentioned, both RP and these other states are not limited only to the right of innocent passage within 12 NM of the Mischief Reef and can even go beyond that. Thus, as this feature is part of PH EEZ, it becomes obvious that China’s occupation and activities 73 herein are illegal as it fails to respect RP’s rights in this area
Example 2: Cuarteron Reef, Gaven Reef and Fiery Cross Reef are “rocks” and not “islands”
Figure 2. Features as “rocks” and “islands”74
72
of the United Nations Convention on the Law of the Sea, 1833 Article 58 in relation to Article 87 of UNTS 3; 21 ILM 1261 (1982).
73
Specifically, the tribunal ruled that PRC’s grant of rights to nationals and vessels (issuance of Nansha Certification of Fishing permit to its nationals and Chinese fishermen escorted by CMS vessels pursuant to the permit) in areas in which RP exercises sovereign rights (Mischief Reef) violates Article 58(3) of o f the UNCLOS . It failed to exercise due regard on rights of RP in its EEZ. 74
Original map is f ound in the South China Sea O rg Website, acce ssed 25 January 2017, http://www.southchinasea.org/maps/territorial-claims-maps/. However, please note that the circles in red and green were drawn by the author.
To make the concepts easier to understand, we refer to the above figure. The features circled in red are features declared as “rocks” by the tribunal. The features circled in green show the same features as “islands” that are entitled up to 200 NM EEZ. In the figure above, the green circles are illustrated to have larger areas than the red circles to show entitlement of “islands” of bigger MZs than “rocks”. (Please note though that these are very rough illustrations. The green and red areas do not purport to show in exact dimensions of 12 NM TS and 200 NM EEZ. These are only drawn to depict the stark difference between the MZs of “rocks” and “islands). Now, what is the effect of the tribunal declaration to these features as “rocks” and not “islands” to states other than RP such as the US or Japan, whose ships ply these areas? There is a significant effect. The declaration of rocks allows not only innocent passage rights within 12 NM from the baseline of these features to ships such as the US and and Japan. Furthermore, from the area outside outside of the red circles of these features, and outwards, US and Japanese ships, for example, exercise vast high seas freedoms under Articles 87 75, 8976 and 9077 of the UNCLOS . Compare this if these features are ruled to be “islands”. If these were declared as “islands”, from the area outside of the red circles of these features, and outwards, these ships have to follow the rights and obligations under UNCLOS, i.e. the section on EEZ, as applicable. The areas wherein these ships can exercise high seas freedoms will only be in the areas starting from 200 NM EEZ (or the green areas). Furthermore, be it noted that although the said vessels can exercise high seas freedoms starting from 200 NM EEZ and these vessels may legitimately engage in military activities in these EEZs without prior notice to, or consent of, the coastal State concerned 78 , coastal states’ sovereign rights must still be respected under Article 56 of the t he UNCLOS . Whereas, in the declaration of these features as “rocks”, ships can exercise full high seas freedoms, without regard to
75
Article 87 (Freedom of the High Seas) reads: “The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States: (a) freedom of navigation; (b) freedom of over flight; (c) freedom to lay submarine cables and pipelines, subject to Part VI; (d) freedom to construct artificial islands and other installations permitted under international law, subject to Part VI; (e) freedom of fishing, subject to the conditions laid down in section 2; (f) freedom of scientific research, subject to Parts VI and XIII. 76
Article 89 (Invalidity of Claims of Sovereignty Over the High Seas) reads: “No State may validly purport to subject any part of the high seas to its sovereignty.”
77
Article 90 (Right of Navigation) reads: “Every State, whether coastal or land-locked, has the right to sail ships flying its flag on the high seas.”
78
Raul (Pete) Pedrozo, “P reserving Navigational Rights and Freedoms: The Right to C onduct Military Activities in China's Exclusive Economic Zone”, Chinese Journal of International Law, (01 March 2010), https://doi.org/10.1093/chinesejil/jmq007
coastal states’ rights under Article 56 , in areas as near as for example, 14 NM from the baseline of the maritime feature. This goes to show that the declaration of maritime features as “rocks” is certainly good news for these states’ vessels as they can exercise more high seas freedoms closer to the features. Please note though that the maritime features79, Gaven Reef, Cuarteron Reef and Fiery Cross Reef, such as the earlier example of Mischief Reef, are occupied by China. This fact must be considered by states in attempting to exercise these high seas freedoms (beyond 12 NM) and even the right to innocent passage (within 12 NM) from the baseline of these “rocks”. C) RP must prove the specific provisions that PRC has violated, after it has shown that it had rights to areas in the SCS. As the RP (and not PRC) has rights in zones within the SCS where PRC conducts the activities complained of, actions within these areas violate specific provisions of the UNCLOS. In the end, the tribunal ruled the following PRC actions as illegal: 1. There is interference with lawful activities of the PH- petroleum exploration, seismic surveys, and fishing- within 200 NM of the PH mainland in violation of various provisions of the UNCLOS. 2. PRC violated Article 77 of of the UNCLOS, which accords sovereign rights to RP with respect to the continental shelf due to the SC 72 incident at the Reed Bank. 3.
The issuance, and not merely enforcement of a fishing Moratorium known as the Hainan Regulation, violated Article 56 of the UNCLOS.
4. PRC also violated Article 58 (3) of the UNCLOS , when it failed to exercise due diligence in preventing its nationals from unlawfully fishing in PH EEZ. Specifically, the tribunal merited evidence on sightings of PRC fishermen in Second Thomas Shoal and Mischief Reef and this was pursuant to the issuance by PRC of a Nansha Certification of Fishing Permit to its nationals and PRC fishermen escorted by CMS vessels in these t hese areas. 5. PRC also violated obligations to protect and preserve the marine environment (UNCLOS provisions against pollution, duty to preserve and protect the environment by flag state (harvesting of endangered species, CITES convention, CH is a party), duty to 79
There are even runways spotted and/or preparations for a runway for some of these features. Nobody is going to try to stop the U.S. Navy from operating': Washington warns Beijing NOT to challenge its flights over South China Sea” (accessed 25 January 2017).http://i.dailymail.co.uk/i/pix/2015/12/16/article-doc-6j05fFqeQv9hsW372334277514aa60e0-882_634x494.jpg)
cooperate et al, conduct EIA 80s). This is due to harmful fishing practices and construction activities done in the SCS.
Figure 3. Dredging activities: “Second Carpenter Report”
*** However, there are several activities by the PRC that were declared to be violative of the UNCLOS that did not need to be proven to that these are within maritime zones whereby RP exercises its rights: 6. The dangerous maneuver by CMS ships in Scarborough Shoal in serious risk of collision to PH vessels violated Articles 94 and 21 of the UNCLOS and related provisions in the 1972 COLREGS. 7. The prevention of rotation and resupply of personnel in BRP Sierra Madre in Second Thomas Shoal and continuing of reclamation activities even after the case aggravated the dispute, in violation of UNCLOS.
Legal Implications of of the Case
The Arbitral Tribunal Award established and/or re-affirmed several noteworthy legal doctrines. These legal doctrines established in RP vs. PRC are useful for states in similar situations as RP, in case they wish to seek similar legal remedies.81These rulings may also be used in states’ policy-making and thus, be influential in the development of state practice and affect international law, in general. The complete listing of legal doctrines and explanation is explained in Annex B below. B below.
The Aftermath After the arbitral tribunal handed down its ruling, the main concern is its enforcement. Avoiding a “paper judgment” in international law depends a lot on
80
Environmental Impact Assessments. If similar suits are filed against PRC and PRC interposes these defences to render the case dismissible, applicant states can use doctrines from this ruling to support their arguments in these suits. (Caveat: Please note though that this is true provided that similar facts and circumstances exist and metrics employed in the case are used.) 81
the political will of the international community, most especially its leading states to influence its neighbour PRC to act in accordance with international law82. Spotlight has been with RP after the award was rendered. Emerging foreign policy83 under the Duterte administration suggests that PH will pursue the route of resolving the SCS issue with China through peaceful bilateral dialogue 84 and not through resort of other legal means that are more confrontational by nature versus China 85 . Should the US undertake Freedom of Navigation Operations (FONops) in the SCS or make provocative statements against PRC 86, the Philippines will play no part in these. 87 However, RP is still adamant in protecting its rights through measured actions such as the lodging of diplomatic protests against PRC over Beijing's installation in 2016 of anti-aircraft and antimissile systems on its manmade islands in the disputed SCS. 88
The Way Ahead AV Dicey89 provided three (3) components on the Rule of Law in his seminal work “The Law of the Constitution”, viz: (1) Sovereignty of law over man; (2) Equality of men over the law; and (3) Judicial decisions applying prevailing laws be enforced. As per the above, enforcement of judicial decisions forms part and parcel of “Rule of Law”. However, in the case of RP vs. PRC 90 , the decision of 82
Employment of legal remedies can provide pressure to China to comply with its international obligations. Alternative routes to resolve the dispute can be undertaken such as development of Joint Development Zones by claimant states. Operations that are in accord with the ruling to change the status quo to be more in line with the award may also be undertaken, but with utmost care of the consequences. 83
Duterte's foreign policy shift away from traditional ally the United States and towards doing more regional deals for loans and business under his "pro-Filipino" policy. http://www.cnbc.com/2017/01/23/china-philippines-agree-to-cooperate-on-30-projects-worth-37billion.html 84
“New Dynamics in ASEAN’s Stance in South China Sea” by Henry H ing Chan and other sources. 85
i.e. UN General Assembly.
86
i.e. U.S. nominee for Secretary of State, Rex Tillerson’s strong statement that Beijing should be repelled from, and then denied access to, the controversial islets (in the SCS).
87
Philippine Foreign Minister Perf ecto Yasay spea ks during a meeting w ith Russian Foreign Minister Sergei Lavrov (not pictured) in Moscow, Russia, December 5, 2016. See Henry Ching Chan. “Duterte and the IPP Review”. (accessed 25 January 2017). http://www.reuters.com/article/us-southchinasea-philippines-china-idUSKBN1501E4
88
Ibid.
89
“Explain The Rule of Law” (accessed 25 January 2017) . https://www.lawteacher.net/free-lawessays/public-law/explain-the-rule-of-law-public-law-essays.php.
undertaking full enforcement, while ideal, must be made whilst ever so mindful of its aftereffects. What is legally permissible may not exactly be practicable . If not well thought out and handled appropriately, employment of legally permissible actions can lead to dire consequences. consequences. “Rule of law” in the international setting has been regarded to “suit those states that are resistant to a broader understanding of international legal obligations”.91 However, be it noted Simon Chesterman’s Chesterman’s view of “Rule of of Law”: While it makes a well-ordered society possible, but it is a means rather than an end .” .”92 Dicey’s concepts in items 1-3 above are just means that must be employed judiciously and in such a manner as to accomplish the ultimate end of ensuring a well-ordered and peaceful setting among states. As earlier explained, to maintain peace and order, it is not enough that the ruling must be followed to the letter letter (This could mean following newly installed US Secretary of State Rex Tillerson’s prescribed action that ‘China be denied access to the reefs 93 ’). Further care must be made to ensure that tensions in the region do not escalate. Dicey had a point that yes, enforcement of the judgment is one of the components in saying that there is indeed Rule of law in the SCS and WPS. However, per Chesterman’s view, the notion that all Rule of Law concepts being put into play is synonymous to ensuring peace and order must be done away with. with . One must always bear this in mind in the consideration of full enforcement of judgment as an aspect of Rule of Law. Moreover and as a final note, whether or not actions undertaken thereafter would depart from the decision as they seem to appear at the present, it is of primordial importance that ALL states continue on harping on the validity of the decision. 94 The RP vs. PRC judgment judgment is significant not only as to provide a peaceful resolution to the issues in the SCS and WPS. The doctrines established therein that aim to prevent and declare illegal unilateral claiming by states of vast maritime zones can likewise shape and influence later behaviour of states and hopefully, effect a more stable and rules-based state conduct in seas worldwide. Thus, to ensure Rule of Law and maintenance of peace and order in the oceans, the significance of affirming the validity of the judgment over and over again cannot be overemphasised. overemphasised.
90
Ibid.
91
Ibid.
92
Simon Chesterman, “An International Rule of Law?”, American Journal of Comparative Law, accessed 4 February 2017 http://www.jstor.org/stable/20454616
93
“China Pushes Back After Tillerson Warns on South China Sea”, accessed 2 February 2017, https://www.bloomberg.com/news/articles/2017-01-12/tillerson-says-china-can-t-have-access-tosouth-china-sea-isles 94
i.e. should RP enter into bilateral negotiations with PRC, it should still do so while still affirming the validity of the judgment.
ANNEX A High Tide Elevations General Term: Islands Fully Entitled Rock Islands Above water at high tide HAS the CANNOT capacity to “sustain human “sustain human habitation or habitation or economic life of economic life of its own” (Art. its own” (Art. 121 (3), 121 (3), UNCLOS) UNCLOS)
Generate: 12 NM TS Continental Shelf (CS)
YES YES
200 NM EEZ
YES
YES NO (Art. 121 (3), UNCLOS) NO
“Sustain human habitation or economic life on its own”
YES
NO
Low Tide Elevations
Submerged Features
Art. 13 UNCLOS , Exposed at low tide, covered with water at high tide; not land territory; no measure of occupation or control can establish sovereignty of features; sovereignty/sovereign rights depend on its distance to a HTE; although its status depends on HTE near it, it is not land, but merely as part of the TS, or EEZ of that HTE
Features that are fully submerged both at high or low tide
NO to ALL; No entitlement to TS, EEZ or CS; No features capable of appropriation by occupation or otherwise
NO to ALL; No entitlement to TS, EEZ or CS; No features capable of appropriation by occupation or otherwise
!""#$ !, !, -./01023 43.15/36 &'()*)&'( 78101932381 &'()*)&'( 78101932381 1: -./01023 ;:836 <-;6= 1>3? ./3 @.A.B93 :C D383/.108D *& .8E F383/.9 G>./.@13/0610@6 95
The table provides a simplistic explanation of the maritime features vis-à-vis entitlement to MZs they are capable of generating and their General Characteristics. The Table is divided into three (3) columns: High Tide Elevations (HTEs), Low Tide Elevations (LTEs) and Submerged Features. The rows below provide information on each. HTEs are divided into two categories: a) Fully entitled Islands and b) Rocks. Both are considered as High Tide Elevations or “Islands” and above water at high tide. However, there are significant differences for a Rock to be called as such (although it remains under the category of Island), and a Fully Entitled Island (that is not a Rock). Based on the table, a (Fully Entitled) Island has the capacity to “sustain human habitation or economic life of its own”, whereas, a Rock could not. Hence, a (Fully Entitled) Island is entitled
to more vast maritime zones under the UNCLOS as opposed to a rock. Specifically, a (Fully Entitled) Island is entitled to 12 NM Territorial Sea (TS), 200 NM Exclusive Economic Zone (EEZ) and Continental Shelf; whereas, among the three (3), a rock is entitled only to a 12 NM TS. It must be emphasised that both Rocks and Fully Entitled Islands are under the general category of an “Island”. Whereas, Low Tide Elevations (LTEs) and Submerged Features are the same in that they are not entitled to any MZs as there are no features for both that are capable of appropriation by occupation or otherwise. There is a significant difference though between an LTE and a Submerged Feature. An LTE is a feature that is exposed at low tide, but covered with water at high tide. It is not land territory and no measure of occupation or control can establish sovereignty of features. The sovereignty/sovereign rights depend on its distance to an HTE. Although its status depends on HTE near it, it is not land, but merely as part of the TS, or EEZ of that THE. Submerged features on the other hand, are features that are fully submerged both at high or low tide.
ANNEX B Commentary 1. The tribunal ruled that for claims based on “historic rights” to be declared as valid, it must be shown that these rights claimed are formed through: (a) continuous exercise of claimed right by the State asserting the claim and (b) acquiescence on the part of the affected states 96 . This dual requirement, especially (b), prevents situations of other states claiming vast maritime zones on the basis of historic rights unilaterally and without any care for possible claims on “historic rights” as well by other states. 2. The same principle of preventing unilateral claiming of states of vast maritime zones with ease is employed when Article 121(3) of UNCLOS was clarified for the first time on the definition of “Rocks”: “3. Rocks which cannot sustain human habitation or economic life of their own shall own shall have no exclusive economic zone or continental shelf.”
This stringent requirement of proving that the feature can sustain human habitation or economic life of its own before a feature can be classified as an “island” (hence entitled to 200 NM EEZ) prevents states from claiming vast maritime zones with ease. It precludes situations wherein states conveniently call a feature an “island” and assigning a handful of military people there to guard it to claim a more expansive 200 NM EEZ, wherein in fact, there is no actual community of people continuously inhabiting it or performing economic activities who are supposed to benefit from the 200 NM EEZ. Be it noted that during the negotiations of the UNCLOS, the vast 200 NM EEZ was a compromise and was granted to states specifically so that exploitation of resources there would benefit the inhabitants of the island living therein. 97 If there is no such living community, then there is no point in granting access to rights to that much larger area (200 NM), as opposed to only 12 NM, if it is just considered as a “rock”.
+,-./#0# 1'(0'"2 ,3 04# 5'2"'3'67"0 1#27/ 8,609'"#( ,3 04# +7(# 1. The case solidified compulsory arbitration under Annex VII of the UNCLOS as UNCLOS as a valid means to settle disputes. 98 96
Republic of Philippines v. The Th e People's Pe ople's Republic of China, PCA case No. 2013-19, Award, 12 July 2016, para. 265, p.113 (hereinafter, Award).
97
98
See Award, par. 621.
Jay Batongbaca l. “Arbitration 101: Philippines vs . China”. (accessed ( accessed 2 January 2017). https://amti.csis.org/arbitration-101-philippines-v-china/
2. The award addressed unanswered and significant questions on jurisdiction jurisdiction and admissibility admissibility.. Particularly, Particularly, it ruled ruled that: e. PRC’s non-participation to the arbitration case at any stage is not a ground to dismiss the case. The general rule in institution of suits is that everyone has a right to due process. That is, if a state is not able to be heard and defend itself before the court, a judgment rendered against it has no binding effect. This covers states that have suits filed against it in international courts such as PRC. PRC contends that as it has not appeared before the tribunal and explained its position, judgment rendered against it has no binding effect. However, in the instant case, an exception was applied by the arbitral tribunal99. The tribunal ruled that PRC was given notice in every step of the suit and multiple chances to explain its side and defend itself. PRC refused to avail of the opportunities given to it pursuant to procedural rules and RP will not be prejudiced by this refusal. 100 f.
The RP vs. PRC 101 case is not a sovereignty dispute. It is a dispute concerning the interpretation or application of the Convention, and thus, it is a matter within the jurisdiction of the tribunal.
PRC contends that the suit is a sovereignty dispute and not a dispute concerning the interpretation or application of the Convention. Under Article 288 of the UNCLOS , the tribunal only has jurisdiction over disputes concerning the interpretation or application of the Convention and NOT sovereignty disputes. PRC contends that it is of such nature because only after the extent of CH’s territorial sovereignty in SCS is determined can a decision be made on whether CH’s maritime claims in SCS have exceeded the extent allowed under the
99
states: UNC LOS states: Article 9( 9 ( Default of appearance ) of Annex VII, UNCLOS “If one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case, the other party may request the tribunal to continue the proceedings and to make its award. Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings. Before making its award, the arbitral tribunal must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fac t and law.” x x x “Despite CH’s non-appearance, it remains a Party to the proceedings, with the ensuing rights and obligations, including that it will be bound by any decision of the Tribunal.” (citing , “Artic Sunrise Case” Kingdom of Netherlands vs. Russian Federation and Nicaragua vs. United States; See Award on Jurisdiction, para. 114, citing Military and Paramilitary Activities in and against Nicaragua Nicaragu a (Nicaragua (Nicarag ua v. United States), Merits, Mer its, Judgment, Judgmen t, ICJ Reports Repor ts 1986 , p. 14 at p. 24, para. 28; Arctic Sunrise (Kingdom of the Netherlands Netherland s v. Russian Federation), Federation ), Provisional Provisiona l Measures, Measures , Order of 22 November 2013, ITLOS Reports 2013 , p. 230 at p. 242, para. 51; Arctic Sunrise Arbitration (Kingdom of the Netherlands Netherland s v. Russian Federation), Federatio n), Award on Jurisdiction of 26 November 2014, para. 60; Arctic Sunrise Arbitration (Kingdom of the Netherlands Netherland s v. Russian Federation), Award on the Merits of 14 August 2015, para. 10.) 100
See Award, paras. 116-128, p.113.
Convention.102 Further, PRC furthers that the question of the legality of CH actions in SCS is dependent upon the resolution of the question of its sovereignty over relevant maritime features and maritime rights derived therefrom. The tribunal in the case disagreed with the foregoing PRC position. It features in the ruled that the case is a dispute concerning the status of maritime features in SCS. It therefore involves the interpretation and application of UNCLOS. And even assuming arguendo that passing upon questions of sovereignty is unavoidable, this does does not render the case case dismissible. As stated in the United States Diplomatic Consular Staff in Tehran case103: “There are no grounds to decline to take cognizance of one aspect of aspect of the dispute merely because that disputes has other aspects, however important.” important.”
For as long as the case primarily involves the determination of the status of maritime features, even if there are questions of sovereignty that are involved, but for as long as these questions are just in the periphery, the tribunal has jurisdiction to the case104.
g. The RP vs. PRC case is not a maritime boundary delimitation case. PRC submitted that the subject matter of the proceedings is an integral part of the dispute of maritime boundary delimitation between RP and PRC. Thus, this makes the case accordingly excluded from the Tribunal’s jurisdiction under .” Article 298 of the UNCLOS UNCLOS .” The tribunal disagreed with this position. Following the doctrine (and in the process, firming up the doctrine) in Nicaragua vs. Colombia that ‘Maritime boundary delimitation does not arise unless there are overlapping maritime entitlements’105, it outlined several steps that ought to be undertaken to determine whether or not it is a maritime boundary delimitation case. These steps are in the below and in this particular order: (4) Determine the character and nature of the maritime features; (5) Consequently, determine the entitlement to maritime zones based on (1) and; (6) Determine the existence of overlapping zones between the two states asking this question After the foregoing steps are undertaken and there were indeed found to be overlapping zones between the two states, then the case is a maritime 102
See Award, paras. 628-633, pp 255-256. United States Diplomatic and Consular Staff in Tehran (United States v. Iran), Judgment, ICJ Reports 1980 19 80, p. 3 at p. 43, para. 93. 104 See Award on Jurisdiction, paras. 401, 403. 105 See Award, para. 392, p. 177. 103
boundary limitation case. PRC conflated all the steps, which the tribunal corrected in this case. In the end, the tribunal ruled that after determining the status of maritime features, there are no overlapping zones in this case. Hence, the case is not a maritime boundary delimitation case.106 h. All other preliminary questions that may be applicable to states in similar situations as RP, had been addressed in the case. se constitute an (4) RP’s act of initiating arbitration does not per se abuse of process. To be considered as abuse of process, requirements under the law must be proven. (What ( What is most noteworthy though in this case is that the arbitral tribunal avoided passing upon this question. The tribunal ruled that the question of whether or not there is an abuse of process will only be passed upon by the tribunal provided that there is a “blatant showing” of abuse. In the instant case, there is no such blatant showing of abuse, so the tribunal even refused to consider this as a valid question. 107) (5) The arbitral tribunal ruled that the Parties (RP and PRC) have already exchanged views as required by Article by Article 283 of 283 of the 108 Convention . (What is noteworthy in this case are the evidence presented in which the tribunal considered as satisfying the requirement that there have already been an exchange of views. This may be instructive to states in similar circumstances as RP.) (6) The tribunal ruled that the following instruments/statements do not preclude recourse to compulsory settlement procedures Convention. Hence, available under Section 2 of Part XV of the Convention. 109 the case can proceed . e) f) g) h)
2002 China-ASEAN Declaration on Conduct of Parties in the SCS Joint statements of the Parties referred to in pars. 231-232 of the Award Treaty of Amity and Cooperation in the Southeast Asia Convention on Biological Diversity
As for (a) and (b) , the tribunal stated that the non-binding nature of these instruments and the lack of prescribed procedures do not preclude recourse to arbitration.110 As for (c) and (d) , although these are considered as binding instruments, the lack of declaration in these instruments specifically barring recourse to arbitration makes for arbitration still a valid action for RP. 111 106
See Award on Jurisdiction, para. 146. See Award on Jurisdiction, para. 128. 108 See Award on Jurisdiction, para. 342. 109 See Award, para, 159 p. 60. 110 Ibid. 111 Ibid. 107
3. China’s nine-dashed line was formally declared to be invalid 112. In the award, PRC’s obfuscation of its claims as encapsulated in its “nine-dashed line” and refusal to elucidate the same before the tribunal worked against it. This can be a warning for those claiming the said rights and refusing to explain the same before the tribunal and courts. It was determined in this case that PRC would not benefit from its obfuscation and hence, its claims based on the nine dashed line were declared to be invalid. 4. The case declared that maritime entitlements are determined based on a feature’s natural state, without consideration of its state after human modification 113 (i.e. reclamation activities). The effect of this declaration is two-fold. For suits by states in similar situations, they must be mindful of this fact if they are asking for a declaration on maritime entitlements of a particular feature. Practically speaking, this doctrine also prevents situations of states altering features and on the basis of features that have already been altered, claim vast maritime zones. 5. The case stated that once a state becomes a party to the UNCLOS, historic rights contrary to UNCLOS are abandoned automatically 114. Although not particularly applied in this case 115 , its mention is very significant. This has a profound effect for states in similar situations and a good case for further study. 6. In making declarations regarding maritime features, the arbitral tribunal relied on similar cases with features having same dimensions to rule on features in SCS case (i.e. dimensions in Quitasueño in Nicaragua vs. vs. Colombia case116 that were considered as “rock” were made a basis for declaration of “rocks” of maritime features in the instant case 117). Finding validity in this practice is instructive for other states, who are in similar situations and contemplating of filing similar suits. Please also note that the Nicaragua vs. Colombia case was an ICJ case. The direct manner by which the arbitral tribunal applied the doctrine in this case decrease doubts on questions of propriety of direct application of ICJ cases in PCA rulings 118. 112
See Award, para, 238 (d) p. 100. See Award, para. 511. 114 See Award, paras. 238 (d), 260 and 261. 115 The doctrine was not applied in the case because the tribunal found that PRC never had historic rights prior to entering into UNCLOS. See Award, para. 270. 116 Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, ICJ Reports 2012, p. 624. 117 See Award, para. 480. 118 See Gilbert Guillame. “The Use of Precedent by International Judges and 25 January 2017) . http://iusgentium.ufsc.br/wp Arbitrators ”(accessed 113
content/uploads/2014/11/GUILLAUME-Gilbert.-The-use-of-precedent-by-international-judgesand-arbitrator-2011.pdf. This article provides insights on the use of legal precedents by International Judges and Arbitrators. It may be useful in looking into the validity of practice of application of ICJ cases to PCA cases, such as the instant case.
