Vietnamlawmagazine

Nguyen Hong Thao

On October 29, 2015, the Arbitral Tribunal (the Tribunal) constituted under Annex VII to the 1982 United Nations Convention on the Law of the Sea (the Convention) to settle the East Sea (West Philippines Sea (WPS) by Filippinos)-related case filed by the Republic of the Philippines (the Philippines) against the People’s Republic of China (China), issued an Award on Jurisdiction and Admissibility.

Since the case has drawn great attention from the international community, China, as the defendant, refused to appear at the hearing and the case may be related to third parties, the Tribunal has cautiously considered all factors affecting its decision on the question of jurisdiction while ensuring objectivity. The Tribunal has considered preliminary objections, and determined the nature of the disputes in connection with the proceedings, possible effects on third parties, and procedures set out in Part XV of the Convention which are related to China’s reservations.

Secretary of Foreign Affairs of the Philippines Albert F. Del Rosario makes a presentation at the July 2015 hearing before the Arbitration Tribunal __Photo: PCA/Internet

Submissions

The Tribunal has analyzed the Philippines’ 15 submissions (13 submissions in the petition filed with the Tribunal in January 2013 and two others added at the round of negotiations in the Hague in July 2015), and decided to treat the Position Paper and certain communications from China as constituting, in effect, a plea concerning jurisdiction.

The Philippines stated that it seeks an Award that (i) declares that the Parties’ respective rights and obligations in regard to the waters, seabed and maritime features of the East Sea are governed by the Convention, and that China’s claims based on its “nine-dash line” are inconsistent with the Convention and therefore invalid; (ii) determines whether, under Article 121 of Convention, certain maritime features claimed by both China and the Philippines are islands, low-tide elevations or submerged banks, and whether they are capable of generating maritime entitlement to an area greater than 12 nautical miles; and (iii) enables the Philippines to exercise and enjoy the rights within and beyond its exclusive economic zone and continental shelf that are established in the Convention.

China expounded three main reasons why it considers that the Tribunal does not have jurisdiction over this case. First, the essence of the subject matter of the arbitration is the territorial sovereignty over several maritime features in the South China Sea, which is beyond the scope of the Convention and does not concern the interpretation or application of the Convention. Second, the subject matter constitutes an integral part of maritime delimitation between the two countries, thus falling within the scope of the declaration filed by China in 2006 in accordance with the Convention. Third, by unilaterally initiating the present arbitration, the Philippines has breached its obligation under international law, particularly the Declaration on the Conduct of Parties in the South China Sea and bilateral instruments.

The Tribunal’s grounds

In its Award, the Tribunal has held that both China and the Philippines are parties to the Convention and bound by its provisions on the settlement of disputes set out in Part XV of the Convention with regard to disputes concerning the interpretation and application of the Convention.

The Tribunal determines that a dispute arises between two countries when their interests see conflicts. Undoubtedly, territorial sovereignty disputes over certain maritime features do exist as referred to in China’s Position Paper and the Philippines has no objection. However, in the Philippines-China multifaceted relationship, there will be disputes over various aspects. The Philippines does not request the Tribunal to decide on the question of sovereignty over maritime features in the East Sea and the Tribunal has no jurisdiction to do so. Disputes concerning the environment, legal definition of rocks, islands or low-tide elevations or submerged banks are related to the interpretation and application of the Convention and are not necessarily associated with sovereignty disputes. A dispute concerning the existence of maritime entitlement is different from a dispute concerning maritime delimitation. Maritime delimitation may be conducted only between states with opposite or adjacent coasts and overlapping entitlements.

In this case, the Philippines has challenged the existence and extent of the maritime entitlements claimed by China in the East Sea without requesting the Tribunal to rule on overlapping entitlements between the two States. China has repeatedly claimed “historic rights” or rights “formed in history” in the East Sea but has never clarified the nature or scope of its claimed historic rights. In the Tribunal’s view, the Philippines’ Submissions No. 1 and 2 reflect a dispute concerning the source of maritime entitlements and the interaction of China’s claimed “historic rights” with the provisions of the Convention, hence, the Tribunal has jurisdiction. However, because the matter on historical entitlements is affected by the Declaration filed by China in 2006 in accordance with the Convention, the Tribunal will consider Submissions No. 1 and 2 in hearing procedures to decide whether the historic rights are associated with “historic bays or titles” according to such declaration.

As the Tribunal only considers the submissions concerning the interpretation and application of the Convention but not the matters on sovereignty disputes, the interests of third parties cannot be affected. The Tribunal has also held that in this case, no other states being third parties are indispensable to the proceedings, that means third parties may request the Tribunal to provide relevant information and documents and may attend the hearing when finding it necessary.

Concerning China’s objection to the Philippines’ violation of the 2002 China-ASEAN Declaration on the Conduct of Parties in the South China Sea (the 2002 DOC), the Treaty of Amity and Cooperation in Southeast Asia (Bali Treaty), the Biodiversity Convention, and bilateral agreements on settlement of disputes through negotiation, with China’s considering such violation a precondition for the Tribunal not to exercise the jurisdiction, the Tribunal has held that the 2002 DOC was a political agreement that was not intended to be legally binding, and it only reaffirms the obligations to settle disputes by peaceful means provided in the Charter of the United Nations and the Convention. Only Section 10 of the DOC contains the word “consensus” when the signatory states “agree to work, on the basis of consensus, toward the eventual attainment of the Code of Conduct (COC)”. The DOC does neither exclude Part XV of the Convention nor say the parties settle disputes “merely through friendship consultation and negotiation among the states with directly related sovereignty,” nor state the parties refrain from bringing the disputes for settlement by other peaceful means. By the same token, in considering Articles 281 to 283 of the Convention, the Tribunal has likewise held that certain other agreements and joint statements by the Philippines and China do not preclude the Philippines from seeking to resolve its dispute with China through the Convention.

The Tribunal then considered the exceptions on jurisdiction set out in Articles 297 thru 299 of the Convention. In the negotiations, although the Philippines requested the Tribunal to make an Award on jurisdiction over all submissions of the Philippines, but the Tribunal observed the limitations in Article 298 and it will determine whether it has jurisdiction only after having considered the case.

The Tribunal’s jurisdiction to decide on a number of submissions of the Philippines depends on (1) the essence and effect of China’s claims based on historic rights in the East Sea, of which the essence which may help determine whether the parties’ disputes are affected by exceptions on jurisdiction involving “historic bays or titles”; (2) the status of certain features in the East Sea, especially when a feature could generate “an island” or entitlement to an exclusive economic zone or a continental shelf and therefore form overlapping areas, which will affect the consideration of the Philippines’ Submissions No. 5, 8 and 9; (3) maritime zones where China carries out law enforcement activities relating to the Philippines’ Submissions No. 8, 9, 10 and 13; and (4) whether the Chinese activities addressed in the Philippines’ Submissions No. 12 and 14 constitute “military activities”.

Having considered the relevant factors, the Tribunal concludes that it has jurisdiction to address the matters raised in the Philippines’ Submission No. 3 (the status of Scarborough Shoal as “an island” or “rock”); Submission No. 4 (the status of Mischief Reef, Second Thomas Shoal, and Subi Reef as “low-tide elevations”); Submission No. 6 (the status of Gaven Reef and McKennan Reef (including Hughes Reef) as “low-tide elevations”); Submission No. 7 (the status of Cuarteron Reef, and Fiery Cross Reef as “islands” or “rocks”); Submission No. 10 (the traditional fishing activities of Philippine nationals at Scarborough Shoal); Submission No. 11 (the protection and preservation of the marine environment at Scarborough Shoal and Second Thomas Shoal); and Submission No. 13 (the operation of China’s law enforcement activities in the vicinity of Scarborough Shoal). The Tribunal holds that it should consider whether it has jurisdiction after hearing Submissions No. 1, 2, 5, 8, 9, 12 and 14 and asking the Philippines to clarify Submission No. 15.

Permanent Court of Arbitration (PCA) rules to have jurisdiction over East Sea-related case filed by the Philippines against China __Photo: PCA/Internet

Vietnam’s participation

As the determination of the essence and entitlement of maritime features to maritime zones does not require an award on territorial sovereignty, the rights and benefits of third parties, including Vietnam, need not to be considered a precondition for considering the case. The Tribunal’s conclusion is backed by Vietnam as it wants to appear at the hearing. The Tribunal may make assessment why Vietnam and neighboring states are interested in the proceedings. “Nine-dash line” is the target indicated in the Philippines’ Submissions No. 1 and 2 and in Note Verbale from the Permanent Mission of the People’s Republic of China to the Secretary-General of the United Nations opposing Vietnam and Malaysia’s joint submission on the limits of the continental shelf in 2009. The Tribunal also mentioned Vietnam’s claims on sovereignty over the features stated in the Philippines’ Submissions No. 4 and 7.

On December 7, 2014, the Vietnamese Foreign Ministry sent to the Tribunal a statement on the position of preserving Vietnam’s legal rights and interests in the East Sea that may be affected in the case. Vietnam also expressed its strong support for “contracting states to the Convention in seeking solutions to their disputes concerning the interpretation and application of the Convention, based on the procedures set out in Part XV of the Convention.” The Statement says “Vietnam has no doubt that the Tribunal has jurisdiction in this case” and wishes the Tribunal “could clarify the legal position of the parties to the case and the third parties that are interested in the case.” Vietnam made the remark that the questions of sovereignty and maritime delimitation have been considered to be removed from the Philippines’ claims.

With respect to the case, Vietnam “resolutely opposes and rejects all claims based on the “nine-dash line” as they have no legal, historical or practical grounds and, therefore, are invalid.” Regarding the features mentioned specifically in the Philippines’ Memorial, Vietnam considers that none of them “can enjoy their own exclusive economic zone and continental shelf or generate maritime entitlements in excess of 12 nautical miles since they are low-tide elevations or “rocks” under Article 121(3) of the Convention.” Vietnam added its support to the Tribunal’s application of Articles 60, 80, 94, 194, 206, and 300 of the Convention. Vietnam reserved its right to protect its legal rights and interests in the East Sea by any peaceful means as appropriate and necessary in accordance with the Convention and in addition reserved its “right to seek to intervene if it seems appropriate and in accordance with the principles and rules of international law, including the relevant provisions of the Convention. This position receives no objection from the Philippines or any remarks from China’s Position Paper. So, the Tribunal informed Vietnam that it would “address the permissibility of intervention in this case only in the event that Vietnam in fact makes a formal application for such intervention. Like Vietnam, Malaysia, Indonesia, Thailand and Japan as third parties have received copies of the pleadings and attended the hearings as observers, and Brunei Darussalam has been provided with copies of documents.

Preliminary remarks on the Award

The Tribunal’s Award on jurisdiction has led to the process of considering the case. It affirms the trend and role of international jurisdiction in settling the most complicated disputes in the world like those in the East Sea. The Award ascertains the commitment to settling disputes by negotiations without restrictions of the rights of the states to seek other peaceful measures, including international jurisdiction, especially when a party arbitrarily prolongs negotiations without goodwill in the settlement of disputes. The Award is welcomed by majority of countries.

The Tribunal has made logical arguments when determining the nature and classifying the origins of disputes. The entitlement to maritime zones from features does not depend on entitlement to sovereignty. The disputes may cover different aspects, not necessarily sovereignty disputes only. Through such classification, the Tribunal has determined the matters that fall within its jurisdiction. The Philippines has made careful preparations and modified its submissions right in the process of negotiations to ensure that the Tribunal may decide whether it has jurisdiction over certain of the Philippines’ submissions. China’s non-appearance does neither bar the Tribunal from considering the case nor create any advantage for the Philippines. The Tribunal has made objective considerations and decided whether it has jurisdiction over several submissions of the Philippines depends on the process of considering the case. Most of the submissions opposing the Tribunal’s jurisdiction as understood under China’s Position Paper are rejected. The Tribunal does not consider the Philippines’ initiation of arbitration against China the abuse of legal process.

The Tribunal also guarantees the interests of the third parties. This case involves many parties, including the parties with direct claims, interested parties, and states outside the region. This shows that the dispute in the East Sea is a multilateral one and attracts international concern which cannot be settled by bilateral negotiations only. The award has come when the US and China experience a tense relation as the US vessels come close to artificial islands built by China right on the features mentioned in the case. Therefore, the Tribunal will have an opportunity to make contributions to developing the law of the sea when clarifying Article 121(3) of the Convention and defining “island,” “rocks” and “submerged banks” as suitable to the specific conditions of Truong Sa (Spratly) islands. The nature and scope of the “nine-dash line” will be for the first time evaluated by an adjudication body, though concerning only the interpretation and application of the Convention. This shows that nothing is unquestionable.

The DOC was also evaluated in nature as a political agreement that was not intended to be legally binding and was therefore not considered a reason obstructing other states to seek other peaceful means if the negotiation is prolonged and the COC is not elaborated.

Vietnam strongly supported the Tribunal’s jurisdiction over the features officially mentioned in the case, and reserved regulations on other features and reserved the right to protect its rights and interests when necessary. For the first time in its judicial history, Vietnam has participated in a legal case between states though just as an observer. The Tribunal’s initial award accords with Vietnam’s consistent position to settle disputes on the basis of international law. The case does neither result in a decision on sovereignty claims nor directly affect sovereignty claims but only concerns the interpretation and application of the Convention. This shows that Vietnam has made proper steps concerning the issue. Through the case, Vietnam has an opportunity to build a contingent of legal experts ready for international cases in the integration process.

The Tribunal’s subsequent award concerning the case will, at any extent, contribute to legal development, the rule of law, and assurance of security and peace in the East Sea. No party will lose or win, only law and the rule of law prevail.-