University of Amsterdam
Faculty of Law
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LLM Public International Law
-International and European Law-
2017
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Conquering the Jurisdictional Obstacle
on Concurrent Sovereignty Dispute in
South China Sea Arbitration
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Name
Noemi D. Evangelista
noemi.evangelista0725@gmail.com
Supervisor
Associate Professor Dr. C.M. (Catherine) Brölmann
Submitted
28 July 2017
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Abstract
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The arbitral tribunal in South China Sea Arbitration has accepted that dispute concerning the territorial sovereignty over land territory is beyond the scope of UNCLOS. However, fully aware that China and the Philippines also have concurrent unresolved sovereignty dispute, still, the arbitral tribunal ruled that it has jurisdiction and subsequently proceeded to decide on the merits of the case. This study examines the legal argumentation applied by the arbitral tribunal in characterizing dispute as one involving the interpretation and application of UNCLOS provisions, therefore finding jurisdiction. After identifying and applying the relevant provisions of UNCLOS as well as principles established by case law referring to the limitations on compulsory jurisdiction, the study finds that the tribunal has exercise jurisdiction within the confines of UNCLOS.
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Table of Contents
INTRODUCTION………..……….………5
FIRST CHAPTER 1. Overview of UNCLOS Dispute Settlement System………9
1.1. Compulsory Arbitration under Annex VII………….………12
1.2. Role of Compulsory Procedure in the South China Sea Arbitration ………..………..…13
2. History of Maritime Dispute Between China and the Philippines………...………...…………...………15
2.1. Failure of Negotiations to Settle Dispute……….……….16
2.2. SCS Arbitration……….17
3. Perceived Non-Applicability of Compulsory Arbitration……….…………...….18
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SECOND CHAPTER 2.1. Limitations to Compulsory Jurisdiction………..………..…………202.1.1. Consent as Source and Restriction………...……….…20
2.1.2. Dispute Concerning the Interpretation and Application of this Convention ………...………22
2.1.3. Determination on the Existence of a Dispute.…….……….…23
2.1.4. Characterization of the Subject Matter of Dispute………...………...…25
2.1.5. Preconditions on UNCLOS Compulsory Jurisdiction in Section 1………...……….…26
2.1.6. Exceptions provided under Section 3…...………..……..28
THIRD CHAPTER 3.1. Jurisdictional Obstacle on Sovereignty .……….…..29
3.1.1. Issues Raised by the Philippine ………..….29
3.1.2. Objection Raised by China ………..31
3.2. Analysis on the Arbitral Award………..…………...…..33 3.2.1. Summary of MPA Arbitration ………...……35 3.2.2. Squaring SCS Arbitration to MPA Arbitration…………...….36
3.2.3. Approach of the ICJ in case of Multifaceted Disputes...….….38
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CONCLUSION………...40 BIBLIOGRAPHY………..42!
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INTRODUCTION
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On July 12, 2016, the arbitral tribunal rendered a decision on the merits on the arbitration proceedings instituted by Philippines (referred herein as South China Sea 1
Arbitration or SCS Arbitration for brevity) despite China’s unwavering position of neither accepting nor participating in the proceedings. It is considered a sweeping victory on the part of the Philippines since the award fundamentally alters the course of maritime claims not only between the parties involved but also among coastal states surrounding the South China Sea (SCS). The arbitral tribunal concluded that,
“as between the Philippines and China, the Convention defines the scope of maritime entitlements in the South China Sea, which may not extend beyond the limits imposed therein.” Consequently, the arbitral tribunal declared that “China’s claim to historic 2
rights, or other sovereign rights or jurisdiction, with respect to the maritime areas of the South China Sea encompassed by the relevant part of the ‘nine-dash line’ are 3
contrary to the Convention and without lawful effect to the extent that they exceed the geographic and substantive limits of China’s maritime entitlements under the Convention.” 4
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China refused to recognize the validity of the decision and declared that “the award was null and void and has no binding force.” In its position paper published on 5
December 2014, China objected to the arbitral tribunal’s jurisdiction arguing among others that: “The essence of the subject-matter of the arbitration is the territorial
The South China Sea Arbitration (The Republic of the Philippines v. The People’s
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Republic of China), Award on Merits, PCA Case No 2013-19 (2016), 1-501 ibid, para 277, p. 116
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also referred to as U-shaped line represents the extent of territorial claim of China
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over SCS which encompassed nearly the whole SCS Award on Merits, para 278, p. 117
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Statement of the Ministry of Foreign Affairs of the People's Republic of China on
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the Award of 12 July 2016 of the Arbitral Tribunal in the South China Sea Arbitration Established at the Request of the Republic of the Philippines, Xinhua, 12 July 2016, available at: http://news.xinhuanet.com/english/2016-07/12/c_135507744.htm
sovereignty over several 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.” According to China, the Philippines has “cunningly package its case” 6
in order to “conceal the very essence of the subject matter of dispute” as territorial sovereignty over certain offshore features in South China Sea (SCS). 7
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Prominent legal scholars like Stephan Talmon and Chris Whomersley supported the jurisdictional objection raised by China. According to Stephan Talmon, it is generally recognized that issues on sovereignty and other rights over land territory does not constitute to dispute within the jurisdiction ratione materiae of UNCLOS arbitral tribunals. He further argued that the claims of the Philippines were 8
in fact, “questions of sovereignty and other rights over land territory… are not dealt
with in the Convention.” Talmon added that the Philippines “has artificially, if not 9
forcibly, extracted individual legal issues from a complex and inseparable whole which cannot be decided on their own”. 10
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Similarly, Chris Whomersley contradicted the findings of the arbitral tribunal on jurisdiction by stating that “questions of territorial sovereignty, status of features
and maritime delimitations are inextricably linked; to consider only one element out of these three is unreal and artificial, and worse it risks producing a distorted
Position Paper of the Government of the People's Republic of China on the Matter
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of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines, Ministry of Foreign Affairs of the People’s Republic of China, 7 December 2014, para 3, available at: http://www.fmprc.gov.cn/mfa_eng/ zxxx_662805/t1217147.shtml
ibid, para 14
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Stefan Talmon, “The South China Sea Arbitration: Is There a Case to Answer?”,
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2014, Bonn Research Papers on Public International Law, Paper No 2/2014, 1-69, p. 19
ibid, p. 18
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ibid, p. 18
result.” In addition, Whomersley questioned the acceptance of the arbitral tribunal 11
and that it has no jurisdiction to decide on the two elements (territorial sovereignty and maritime delimitation) but then considered the third element relating to the status of the features, he described this situation as “putting the status cart before the sovereignty horse.” 12
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Notwithstanding the contentions against jurisdiction, the arbitral tribunal concluded that the questions submitted by the Philippines for resolution did not constitute as dispute on sovereignty over land territory. On the contrary, the issues raised by the Philippines concerned dispute on the interpretation and application of UNCLOS, despite acknowledging the concurrent existence of unresolved sovereignty dispute. Thereafter the arbitral tribunal proceeded to decide on the merits of the case.
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Intrigued by this unprecedented case, the study focuses on the legal reasoning taken by the arbitral tribunal in deciding that it has jurisdiction to settle the case despite of multifaceted dispute involved. The main question to be answered is whether the said tribunal has exercised jurisdiction within the limits conferred by UNCLOS. In order to give light to this inquiry the substantive provisions of UNCLOS relating to the limitations of compulsory jurisdiction under Part XV as well the established international case law are thoroughly examined and applied.
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Following the introduction, the first chapter of this study addresses the role of compulsory procedures in SCS Arbitration. This chapter contains an overview of UNCLOS dispute settlement system with particular emphasis on compulsory procedures. A brief historical account on the maritime dispute between China and the Philippines is also included to have a better understanding of the matters under dispute. This chapter also considers the perceived exclusion of the dispute from compulsory procedures.
Chris Whomersley; The South China Sea: The Award of the Tribunal in the Case
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Brought by Philippines against China—A Critique. Chinese Journal of International Law 2016; 15 (2), para 36, pp 239-264, p. 255,
ibid.
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The second chapter dwells on the legal principles to consider in assessing the scope and limitations to compulsory jurisdiction found in Part XV of UNCLOS and the established case law. These rules and legal principles serves as bedrock to analysis in the third chapter.
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The third chapter consists of the analysis on the decision made by the arbitral tribunal by applying the rules and legal principles set forth in the previous chapter. This chapter emphasized the argumentation made by China and the Philippines together with the findings of the arbitral tribunal that dispute concerns the interpretation and application of UNCLOS. With respect to determining the nature of the claims presented by the Philippines, the present case is squared to an earlier arbitration case between Mauritius and United Kingdom (UK) referred to as the Marine Protection Area Arbitration (MPA Arbitration) in view of the notable 13
similarities to the present case. Lastly, two cases decided by the International Court of Justice (ICJ) are also included to analyze the practice of ICTs when confronted by complex legal dispute.
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At the end of the analysis, the current author finds that decision of the arbitral tribunal with respect to determination of the subject matter of dispute is consistent application of the rules laid down by the UNCLOS and the principles established in case law. The current author therefore concludes that the arbitral tribunal has exercised jurisdiction in accordance with its jurisdictional limitations.
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Since most of the relevant UNCLOS provisions related to this study often phrased in general terms, whenever necessary, the current author will also consult the
travaux préparatoires of this Convention to determine the intentions of the drafter in
support to the analysis to be made in this study. With regard to the scope of the study, although multiple issues have been decided, the highlight of the analysis is on the
Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award
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finding of jurisdiction by the arbitral tribunal in relation to the jurisdictional objection presented above. Discussion on the merits of the dispute are outside the purview of this paper, however, they are mentioned whenever relevant to the study.
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The method of analysis to be undertaken is the classic legal doctrinal method consisting of the “systematic, analytical, and evaluative exposition” of primary and 14
secondary sources of international law. The provisions laid down in UNCLOS particularly the compulsory settlement of dispute procedure under Part XV will comprise the core source of primary law, employed in order to provide a solid and foundational understanding on the topic of this research. Regarding secondary sources, the relevant case law pertaining to jurisdiction of international courts and tribunals are also equally important along with consultations to authoritative scholarly researches and articles related to this topic. For the most part, this is an internet based research made available by accessing the University of Amsterdam database since it provides a wide range of sources useful to this research.
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FIRST CHAPTER
1.1. Overview of UNCLOS Dispute Settlement System
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Referred to by its framers as the “constitution of the oceans,” UNCLOS was 15
intended to provide for a comprehensive rule to cover all matters related to the law of the sea. However, in order to obtain the widest support possible from states representing diverse interests, many provisions of UNCLOS are inherently uncertain
Enrico Pattaro, Volume 1 The Law and the Right, A Reappraisal of the Reality the
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Ought to Be, A Treatise of Legal Philosophy and General Jurisprudence, Springer, 2005
Tommy B. Koh, President of the Third United Nations Conference on the Law of
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the Sea, A Constitution for the Oceans (1982), available at http://www.un.org/depts/ los/convention_agreements/texts/koh_english.pdf
or ambiguous. As Professor Alan Boyle pointed out, this was the inevitable result of 16
balancing complex state interests necessary to obtain, as much as possible, consensus among states. For this reason, the need for an effective dispute settlement 17
mechanism is paramount not only for the uniform interpretation and application of the provisions of UNCLOS but also “to flesh out the some of the very broad or general
obligations included in the Convention.” 18
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Part XV of UNCLOS contains three sections that begin by reciting the general obligation of states to settle any dispute peacefully by means consistent with the United Nations Charter (UNC). Section 1 provides for non-binding, voluntary 19
means pursuant to Article 33 of the UNC. This is said to be consistent with the general principles of law, state parties are free to select by agreement any peaceful means of dispute settlement procedure except where no settlement has been 20
reached. The agreements to peacefully settle disputes through a general, regional, 21
bilateral or otherwise among state parties shall also apply in lieu of Part XV of the LOSC. In all cases however, a state party to a dispute has the obligation to 22
See Alan E. Boyle"Dispute settlement and the Law of the Sea Convention:
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problems of fragmentation and jurisdiction." International and Comparative Law Quarterly 46.01 (1997): pp. 37-54, p. 38
ibid.
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Natalie Klein, “The Effectiveness of the UNCLOS Dispute Settlement Regime:
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Reaching for the Stars?” Proceedings of the Annual Meeting (American Society of
International Law), Vol. 108, 2014, pp. 359-364, p. 360, JSTOR, available at
www.jstor.org/stable/10.5305/procannmeetasil.108.0359 UNCLOS, Article 279
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ibid, Article 280; Louis B. Sohn, “The Importance of the Peaceful Settlement of
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Disputes Provisions of the United Nations Convention on the Law of the Sea” in Myron H. Norquist and John Norton Moroe (eds), Entry into force of the Law of the Sea Convention, (1995), p. 266
ibid, Article 281
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ibid, Article 282
expeditiously exchange views regarding its settlement and may invite the other party to submit the dispute to conciliation. 23
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Section 2, on the other hand, is where the compulsory procedures entailing binding procedures could be found. Article 286 provides that:
“Subject to section 3, any dispute concerning the interpretation or application of this Convention shall, where no settlement has been reached by recourse to section 1, be submitted at the request of any party to the dispute to the court or tribunal having jurisdiction under this section.
This section also offers four alternative compulsory procedures to choose from. Thus, Article 287(1) states that:
“When signing, ratifying or acceding to this Convention or at any time thereafter, a State shall be free to choose, by means of a written declaration, on or more of the following means for the settlement of disputes concerning the interpretation or application of this Convention:
a. the International Tribunal for the Law of the Sea established in accordance with Annex VI;
b. the International Court of Justice;
c. an arbitral tribunal constituted in accordance with Annex VII;
d. special arbitral tribunal constituted in accordance with Annex VIII for one or more of the categories of disputes specified therein.”
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The explanation behind the four options of compulsory procedures came about during the negotiations. In that time, developing states were very critical with the jurisprudence, structure, and membership of the ICJ and were unwilling to accept formal mechanisms of international adjudication. These states felt the need to develop new principles and this could only be achieved by the creation of a new tribunal that paved the way to the foundation of ITLOS. For this reason, choice of fora is said to
ibid, Article 283 and 284
reflect the flexibility required in order to achieve consensus on compulsory dispute settlement during the Third UNCLOS Conference. 24
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1.1.1. Compulsory Arbitration under Annex VII
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As stated above, arbitration under Annex VII is considered as a default procedure. A state party may institute compulsory arbitration through unilateral submission of dispute before the tribunal constituted under Annex VII through a written notification addressed to other party or parties to the dispute accompanied by a statement of the claim and the grounds on which it is based. The arbitral tribunal 25
created under Annex VII of UNCLOS is composed of five arbitrators where each party to the dispute may appoint one member and the remaining three are appointed by agreement. 26
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What has made arbitration an attractive default procedure is the flexibility afforded to the parties in the choices as to the members of the arbitral tribunal. 27
Moreover, in a commentary, arbitration is described as efficient by comparing cases decided before the arbitral tribunal to cases adjudicated by the International Court of Justice (ICJ). Based on the author’s opinion, the expediency of the process and the 28
Natalie Klein, Dispute Settlement in the UN Convention on the Law of the Sea
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(2005), Cambridge University Press, p. 54 ibid, Article 1 Annex VII
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ibid, Article 3(b)-(d) Annex VII,
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Tjaco van den Hout, Resolution of International Disputes: The Role of the
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Permanent Court of Arbitration – Reflections on the Centenary of the 1907 Convention for the Pacific Settlement of International Disputes, Leiden Journal of International Law, 21 (2008), pp. 643-661, p. 650;
Emma Kingdon, A Case for Arbitration: The Philippines’ Solution for the South
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China Sea Dispute, B. C. Int’l & Comp. L. R. Vol. 38:129 (2015), pp 129-157, p. 141; the author compared the case filed by Nicaragua in 1999 against Honduras before the ICJ which took eight years to resolve and the arbitration case between Barbados and Trinidad Tobago that took only two years. The arbitration case between the GRP and PRC has the same duration as the latter.
expertise to hear a wide range of complex issues has increased its popularity as a forum to settle dispute. 29
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Nevertheless, since the adoption of UNCLOS in 1982, including the SCS Arbitration, there are only twelve cases instituted under Annex VII, four among them were terminated and three are pending. It is, however, noteworthy to mention that all the five remaining cases have reached the final award. 30
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1.1. Role of Compulsory Procedure in the South China Sea Arbitration
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The compulsory binding dispute settlement procedures under Section 2 Part XV of UNCLOS provides for an “authoritative mechanism for determining questions
relating to the interpretation or application of the treaty, to guaranty the integrity of the text and to control its implementation and development by State parties.” .” It 31 32
essentially serves as “cement which should hold the whole structure together and
guarantee its continued acceptability and endurance for all parties”. In addition, 33
what sets UNCLOS apart from most conventions is the fact that compulsory binding procedures forms an integral part thereof. UNCLOS was intended to be a “package deal” where reservations or exception are not allowed unless expressly permitted by the Convention. In effect, state parties are not free to pick and choose the portions of 34
the Convention they wish to accept or reject. This was considered as a remarkable
ibid.
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list of cases available at Permanent Court of Arbitration webpage:
https://pca-30 cpa.org/en/services/arbitration-services/unclos/ ibid. 31 ibid. 32 ibid. 33 Article 309, UNCLOS 34
development because states are historically viewed as unreceptive towards compulsory binding procedures. 35
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The compulsory binding settlement is an attractive option for relatively weak states like the Philippines. During the negotiation of UNCLOS, developing states welcomed the idea of compulsory dispute settlement because of the possibility to level the playing field between powerful and weak states. It was believed that the availability of compulsory procedure “would reduced the risk of more powerful states
using political, economic, and military pressures to force developing states to give up rights guaranteed under the Convention.” In a video discussion, made similar points 36
when he discussed about the critical consideration that motivated the Philippines to submit dispute to compulsory arbitration. As such, UNCLOS compulsory arbitration 37
is set into motion to settle the maritime dispute between China and the Philippines. Before assessing the role of UNCLOS compulsory arbitration, a discussion on the historical background of the dispute between China and the Philippines is important to have a better grasp on the nature thereof.
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Most states still prefer the traditional mode of settling dispute through voluntary,
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non-binding means such as negotiation and other diplomatic channels. See John E John E Noyes, Compulsory Third-Party Adjudication and the 1982 United Nations Convention on the Law of the Sea, Connecticut Journal of International Law 4.3, 1989, pp. 675-696, p. 679-680
Natalie Klein, Dispute Settlement, p. 52
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In a discussion of the arbitration case instituted by the Philippines against China,
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Paul Reichler, one of the leading counsels that represented the Philippines, identified the factors that motivated the Philippines to submit their dispute to arbitration. These were: first, the Philippines cannot exploit its natural resources within the 200nm EEZ in view of the pressure employed China. Second, negotiations between these two states had gotten nowhere and there was no indication that China’s position will soften, in fact, the actions taken by China showed the opposite. Lastly, confronting China militarily was not a legal option and the Philippines does not have the kind of economic influence to cause China to change its behaviour. Relatively considered as the weaker state, the only legal option left is to submit their dispute to compulsory arbitration so that the Philippines will have the opportunity to compete on equal terms. See video, A Discussion on the Philippines’ South China Sea Arbitration Case, available at https://www.youtube.com/watch?v=bHgMxHv_Hf0
1.2. History of Maritime Dispute between the Philippines and China
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The semi-enclosed South China Sea (SCS) has been embroiled by a long history of territorial sovereignty disputes over offshore islands and other maritime features by its surrounding coastal states. China’s claim has been the largest and the 38
most adamant for it encompasses nearly the whole of South China Sea. A nine-dashed line or U-shaped line map depicted its territorial claims on almost 80 percent of the 39
South China Sea. Within this nine-dash line lies the Spratly Islands consisting of 40
more than 140 islets, rocks reefs, shoals and sandbanks scattered over an area of more than 410,000 square kilometers (km2), all claimed by China, Taiwan and Vietnam. 41
Many of these features are also within the Kalayaan Island Group (KIG) claimed by the Philippines. Some features of the Spratly Islands are also claimed by Malaysia 42
and Brunei. Another disputed maritime feature covered by China’s nine-dash line is 43
Brunei Darussalam, China, Malaysia, the Philippines, and Vietnam; see N. Elias
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Blood-Patterson, "Smoke on the Water: The Role of International Agreements in the Philippine-Chinese Dispute over the South China Sea." NYUJ Int'l L. & Pol. 46 (2013) pp. 1207-1248, p. 1207
this was attached to China’s Note Verbale to the UN Secretary General on 7 May
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2009 available at: http://www.un.org/depts/los/clcs_new/submissions_files/ vnm37_09/chn_2009re_vnm.pdf
Note Verbale No. CML/17/2009 and Note Verbale No. CML/18/2009 from the
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Permanent Mission of the People’s Republic of China to the UN Secretary-General (May 7, 2009), retrieved at http://www.un.org/depts/los/clcs_new/submissions_files/ vnm37_09/chn_2009re_vnm.pdf
Robert Beckam, The UN Convention on the Law of the Sea and the Maritime
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Disputes in the South China Sea, The American Journal of International Law, vol. 107, no. 1, 2013, pp. 142-163, p. 143
ibid, p. 144; noteworthy to mention that some of the maritime features in KIG are
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within 200nm of the Philippines’ archipelagic baseline such as Mischief Reef (125.4nm), Second Thomas Shoal (104nm) Johnson Reef (184.7nm), McKennan Reef (181.3nm) and Hughes Reef (180.3nm), see award on merits, para 287 and 290, pp. 121-122
ibid, p. 144
the Scarborough Shoal , a large atoll with lagoon of about 150km44 2 surrounded by
reef, located 116.2 nautical miles (nm) from the archipelagic baseline of the 45
Philippine island of Luzon and 448.2 nm from the China’s baseline. 46
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1.2.1 Failure of Negotiations to Settle Dispute
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The maritime dispute between China and the Philippines has started in 1995 when the Philippines discovered that China built structures on Mischief Reef, a submerged maritime feature in Spratly Island that is within the Exclusive Economic Zone (EEZ) of the Philippines. A code of conduct was created as a result of a 47
diplomatic exchange between the parties. However, China violated this code of 48
conduct in 1997, when eight Chinese naval vessels were sighted near the Mischief Reef and a new structure was seen built. Thereafter, several bilateral and 49
multilateral negotiations still took placed between the Philippines and China in order to settle their overlapping sovereignty claims in the Spratly Islands and Scarborough Shoal. However, it was proved to be unsuccessful since China firmly held its position that it has “sovereignty and sovereign rights” within the insular features encompassed by the nine-dash line. This is evident by the two notes verbales submitted to the UN Secretary-General in 2009. China declared that it has “indisputable sovereignty over
known as “Panatag Shoal” or “Bajo de Masinloc” in the Philippines and “Huangyan
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Dao” in China
ibid, Beckam, p. 145
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award on merits, para 284, p. 120
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Ian James Storey, Creeping Assertiveness: China, the Philippines and the South
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China Sea Dispute, Contemporary Souteast Asia, Vol. 21, No. 1, 1999, Institute of Southeast Asian Studies, pp.95-118, p. 97
ibid.
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ibid.
the islands in the SCS and the adjacent waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof.” 50
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In response, the Philippines has submitted a note verbale that specifically contradicts China’s claims as well as stresses that “KIG constitutes an integral part of the Philippines” thus, it has jurisdiction over the geological features thereof. This 51
conflicting claims have led to a tense standoff in Scarborough Shoal, between the Philippines’s largest warship and Chinese surveillance vessels when the former attempted to arrest Chinese fishermen engaged in illegal fishing but the latter blocked the arrest. 52
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1.2.2. SCS Arbitration
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On 22 January 2013, the Philippines instituted arbitration proceedings against China on the basis of Annex VII pursuant to Section 2 Part XV of UNCLOS. In this proceeding, the Philippines submitted 15 inter-related matters embodied in its Memorial (the “Submission”) subject to adjudication by the arbitral tribunal. Since 53
the Philippines and China acceded to UNCLOS in 1984 and 1996 respectively, both states are bound by the compulsory binding dispute settlement procedures under Part XV of UNCLOS.
Note Verbale No. CML/17/2009 and Note Verbale No. CML/18/2009 from the
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Permanent Mission of the People’s Republic of China to the UN Secretary-General (May 7, 2009), retrieved at http://www.un.org/depts/los/clcs_new/submissions_files/ vnm37_09/chn_2009re_vnm.pdf
Note Verbale No. 000228 from the Permanet Mission of the Republic of the
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Philippines to the UN Secretary-General (April 5, 2011), available at: http:// w w w. u n . o r g / d e p t s / l o s / c l c s _ n e w / s u b m i s s i o n s _ f i l e s / m y s v n m 3 3 _ 0 9 / phl_re_chn_2011.pdf
“Philippine Warship in Standoff with China Vessels”, The Guardian (2012),
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Retrieved from: https://www.theguardian.com/world/2012/apr/11/philippines-china-stand-off-south-china-sea
South China Sea Arbitration between The Republic of the Philippines and The
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People’s Republic of China, Award on Jurisdiction and Admissibility, PCA Case No 2013-19 (2015), 1-151, par 7, par 101
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China has declined to appear in the proceedings and has taken the position of neither accepting nor participating in the arbitration instituted by the Philippines. Its position was articulated in its public statements and several note verbales both addressed to the Philippines and to the Permanent Court of Arbitration. 54
Nevertheless, Article 9 of Annex VII confirms that the non-participation of China does not constitute as a bar to the proceedings. Consequently, the tribunal was 55
constituted in accordance with Article 3 of Annex VII. 56
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On 21 April 2015, the arbitral tribunal issued Procedural Order No. 4 after its findings that it was appropriate to bifurcate the proceedings in view of the circumstance of the case and its duty “to assure to each Party a full opportunity to be heard and to present its case.” 57
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1.3. Perceived Non-applicability of Compulsory Arbitration
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Despite the remarkable aspect, UNCLOS compulsory procedures has been criticized for lack of comprehensiveness contrary to its desire “to settle… all issues 58
relating to the law of the sea…” in order to establish “a legal order for the seas and oceans…” As pointed out by Judge Shigure Oda, the provisions on compulsory 59
procedures “are not so extensive as to cover all disputes concerning their application
or interpretation” because the source of many major ocean disputes are excluded
Award on Merits, para 11, p. 3
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UNCLOS, Article 9 of Annex VII provides that: xxx Absence of a party or failure
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of a party to defend its case shall not constitute a bar to the proceedings. xxx Award on Jurisdiction, para 28-31
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ibid, para 68, p. 24
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Natalie Klein, “The Limitation of UNCLOS Part XV Dispute Settlement in
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Resolving South China Sea Disputes: The South China Sea – An International Law Prespective Conference” International Journal of Marine and Coastal Law, 2016, p. 3
UNCLOS Preamble, First and Fourth Recital
from compulsory procedures. This contention reinforces the view that sovereignty 60
disputes are outside the scope of UNCLOS compulsory procedures.
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The questions raised by both Parties in the SCS Arbitration has traversed into the complex legal issues the nature of which need to be clearly established in order to determine whether there is a legal basis for compulsory arbitration. One of the main source controversies is the concurrent existence of unresolved sovereignty dispute between the parties. In particular, the Philippines seeks for a declaration that the maritime claims of China based on “historic rights” encompassed by “nine dash line” are unlawful and inconsistent with UNCLOS provisions. On the contrary, China claimed that the real issue is about territorial sovereignty over the maritime features under dispute.
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In the present case, the concurrent existence of sovereignty dispute has been accepted not only by both parties but also by the arbitral tribunal itself. Similarly, all parties are in agreement that sovereignty dispute is considered as beyond the scope of compulsory jurisdiction. This has been confirmed in MPA Arbitration when, after reviewing the negotiating record of UNCLOS, the arbitral tribunal found no explicit answer regarding jurisdiction over territorial sovereignty, therefore:
“…the simple explanation for the lack of attention to this question is that none
of the Conference participants expected that a long-standing dispute over territorial sovereignty would ever be considered to be a dispute concerning the interpretation or application of the Convention.” 61
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What could be seen as the reason why compulsory arbitration is not applicable is the “intimate connection” between maritime rights set forth in UNCLOS and
for instance, the consequence of the expansive exceptions under Section 3 of
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UNCLOS exclude a great number of maritime disputes from UNCLOS dispute settlement system; Shigure Oda, Dispute Settlement Prospects in the Law of the Sea, International Comparative Law, Quarterly, 44(4), pp. 863-872, p. 863
MPA Arbitration, para 215, p. 89
sovereign rights over land territory governed by general or customary international 62
law. However, based on the outcome of the case, these considerations did not stop 63
the arbitral tribunal from finding jurisdiction to hear and decide on the claims submitted by the Philippines.
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The perceived non-applicability of compulsory arbitration all boils down to the question on the scope and limits of compulsory jurisdiction. The next chapter dwells on the several rules and principles to consider in determining whether arbitral tribunal’s exercise of jurisdiction is within the scope and limits provided for under Article 288 of UNCLOS.
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SECOND CHAPTER
2.1. Limitations to Compulsory Jurisdiction
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This chapter lays down the limitations to jurisdiction as set forth in UNCLOS and established by case law to serve as a framework in assessing whether the arbitral tribunal has in accordance with the power conferred to it by UNCLOS. These are: (1) state consent as a general limitation, (2) Article 288(1) and 288(4) of UNCLOS limiting jurisdiction to dispute involving the interpretation or application of UNCLOS, (3) established case law to determine the existence of dispute and (4) how dispute is characterize by the characterization thereof, and (6) the application of automatic and optional exception under Article 297 and 298 respectively.
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2.1.1. Consent as a general limitation to compulsory jurisdiction
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Although termed as ‘compulsory’ the competence of UNCLOS court and tribunal (UNCLOS tribunals for brevity) to hear and adjudicate on specific cases is ultimately grounded on the consent of state parties. In one of his lectures, Judge
Whomersley, para 34, p. 253
62
Talmon, p. 33
Christopher Greenwood stressed that “there is no true concept of compulsory
jurisdiction of courts and tribunals in the global community.” He then quoted the 64
frequent statements of the ICJ in numerous cases which states that:
“…one of the fundamental principles of [the statute of the Court] is that it cannot decide a dispute between States without the consent of those States to its jurisdiction; and… the Court therefore has jurisdiction only between State parties to a dispute who not only have access to the Court but also have accepted the jurisdiction of the Court, either in general form or for the individual dispute concerned.” 65
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This statement underscored the importance of consent not only as a source of compulsory jurisdiction but also as a fundamental limitation to the exercise of compulsory jurisdiction by ICTs. Therefore, unless states consented, ICTs are not competent to entertain or adjudicate on the merits of the case presented before them.
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Consent of the states to subject their dispute to ICTs may be given in several different ways. In the case of UNCLOS, consent was given in advance (known as compromissory clause) to settle future dispute among state parties by virtue of Article 286 stated in the previous chapter. As a consequence, UNCLOS tribunal has jurisdiction to conduct the proceedings despite strong rejection of respondent state (state party). The necessity of consent is “satisfied and cannot be overridden by
subsequent opposition.” This situation became quite clear in the SCS Arbitration 66
where despite vigorous rejection of China to the arbitration proceedings, this did not hinder the arbitral tribunal from hearing the merits of the case.
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Christopher Greenwood, The Role of the International Court of Justice in the
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Global Community, U.C. Davis Journal of International Law & Policy 17.2 (2011): 233-252, p. 238
ibid, quoting Armed Activities on the Territory of the Congo, New Application:
65
2002, (Dem. Rep. Congo v. Rwanda), 2002 ICJ Report 219, (Order of July 2010) para 57, available at: https://jilp.law.ucdavis.edu/issues/volume-17-2/Greenwood.pdf
ibid., p. 244
Prior consent to compulsory jurisdiction however does not entail unlimited competence or power to decide on a case despite the existence of legal dispute. Consent is limited only to “disputes relating to a specific subject-matter” in accordance with the terms of the relevant treaty involve.67 In several provisions of UNCLOS, it has been repeatedly mentioned that only dispute concerning the
“interpretation or application” of the Convention could be subject to compulsory
jurisdiction. Thus, in MPA Arbitration, the arbitral tribunal has dismissed the case upon finding that the dispute between Mauritius and United Kingdom was a dispute on the territorial sovereignty over Chagos Island. According to the arbitral tribunal, dispute on territorial sovereignty is not a subject matter concerning the interpretation or application of UNCLOS, therefore it lacks jurisdiction to proceed with the case. This case is further elaborated in the subsequent chapter.
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2.1.2. Dispute Concerning the Interpretation and Application of this Convention
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Article 288(1) addresses the limits to jurisdiction of UNCLOS which states that: “A court or tribunal referred to in article 287 shall have jurisdiction over any dispute concerning the interpretation or application of this Convention which is submitted to it in accordance with this Part.” Correspondingly, it is imperative for UNCLOS court and tribunals (UNCLOS Tribunals) to first establish the existence of a dispute dividing the parties and to determine whether the subject matter of dispute concerns the interpretation or application of the Convention. In Fisheries case, the ICJ made a pronouncement that “It has never been contested that the Court is entitled
to interpret the submissions of the parties, and in fact bound to do so; this is one of the attributes of its judicial functions.” 68
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ibid., e.g. Article 288(1) of UNCLOS
67
Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, ICJ
68
Additionally, paragraph 4 of the same article further provides that: “In the event of a dispute as to whether a court or tribunal has jurisdiction, the matter shall be settled by decision of that court or tribunal.” The said rule is a reflection of the principle of competence de la competence as a manifestation of the existence of the inherent power of every judicial organ considered as a “necessary component to of the judicial function.” An important limitation to this power however, was stated in the 69
Nuclear Tests. In this case, the ICJ made a pronouncement that international courts 70
or tribunals are only empowered to make such findings “as may be necessary for the purposes just indicated, derives from the mere existence of the Court as a judicial organ established by the consent of states, and is conferred upon it in order that its basic judicial functions may be safeguarded.” 71
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2.1.3. Determination on the Existence of a Dispute
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It is a common practice of the ICTs before proceeding to assess the nature of a dispute to first identify whether a dispute actually exists. This is considered a threshold requirement in the exercise jurisdiction. The early case of Mavrommatis
Palestine Concession decided before the PCIJ serve as a good starting point to
determine its existence. The court in this case defined dispute as “a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons.” 72
Thereafter, PCIJ ruled that a dispute arise from the fact that Greece is seeking indemnity from Great Britain because of the latter’s treatment to Mavrommatis, a
Chittharanjan Amerasinghe, Jurisdiction of International Tribunals, 2003, Kluwer
69
Law International, p. 133 citing Tadic case, 1995, ICTY: Judicial Reports 1994-1995, p. 353
Nuclear Tests Case (Australia v. France), Judgment, International Court of Justice,
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ICJ Rep 253, 1974, p. 259-60.
Chittharanjan Amerasinghe, p. 133 citing Tadic case, 1995, ICTY: Judicial Reports
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1994-1995, p. 353
Mavrommatis Palestine Concession, Greece v. Britain, on Jurisdiction, Judgment of
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Greek national, that is incompatible with certain international obligations. This is 73
considered as a well-established concept that has been widely used by international courts and tribunals (ICTs). 74
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To determine the existence of dispute, as ICJ stated in South West Africa, “it must be shown that the claim of one party is positively opposed by the other.” 75
Therefore, the disputing parties must “hold clearly opposite views concerning the question of the performance or non-performance of certain’ international obligations.” In addition, it is considered that whether there is dispute is a matter of 76
“objective determination” by the court. This is done through the “examination of 77
facts” taking into account in particular, “any statements or documents exchanged between the parties” and “exchanges made in multilateral settings”. In his 78
vcbdissenting opinion, Judge Crawford claimed that based on the case law of the ICJ
ibid, p. 12
73
To set some examples, see the following cases: Application of the International
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Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011 (I), p. 84, para. 30; Obligations Concerning Negotiations Relating to Cessation of Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. India), Jurisdiction of the Court and Admissibility of the Application, Judgment, International Court of Justice (ICJ), 5 October 2016; Award on Jurisdiction, Philippine v. China, para 149, p. 57
Marshall Island case, para 34, p. 16, citingSouth West Africa (Ethiopia v. South
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Africa; Liberia v. South Africa), Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 328
ibid, citing Alleged Violations of Sovereign Rights and Maritime Spaces in the
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Caribbean Sea (Nicaragua v. Colombia), Preliminary Objections, Judgment of 17 March 2016, para. 50, Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 74
Georgia v. Russia, para 30, p. 18, citing Interpretation of Peace Treaties with
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Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 74
Marshall Islands v. India, Jurisdiction and Admissibility of the Application,
78
and its predecessor, PCIJ, clearly indicates that “the test for a dispute is always a minimum one.” 79
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However, determining the existence of dispute is not sufficient for international courts or tribunals (ICTs) to automatically assume jurisdiction. Another equally important condition is the subject matter of dispute that must fall within the scope and limits of the constitutive or jurisdictional instruments conferring jurisdiction. On this matter, since most of the constitutive instruments are broadly phrased, the ICTs in effectively carrying out their judicial functions are required to characterize the nature of disputes under consideration.
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2.1.4. Characterization of the Subject Matter of Dispute
In view of the jurisdictional implication, an ICT must thoroughly scrutinize the existing dispute in order to determine whether the questions raised are within scope of its jurisdiction. Thus, it is not enough for a dispute to actually exist. For instance, UNCLOS contains a proviso that states that it must be “any dispute
concerning the interpretation or application of this Convention.” Since it is a 80
common practice to that constitutive instruments are phrased broadly to make it adoptable to given cases, there are no definite guidelines as to how dispute should be characterized. The said guidelines are however, established through case law decided by the ICJ and other ICTs.
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Analogous to the principles laid down above, ICT is required to identify and characterize a dispute, through “objective determination.” However, the difference lies in the threshold. As opposed to determination of existence of dispute, characterization demanded way more than just a minimum. In the case of Georgia v.
Russia, the ICJ cited this in the Advisory Opinion sought by United Nations
Judge Crawford, Dissenting Opinion in Marshall Islands v. India
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Article 288(1)
Headquarters and emphasized that: “in order to be able to answer the question, it 81
must, upon determination that there exists a dispute between the United Nations and the United States concerning the interpretation or application of the Headquarters Agreement, satisfy itself that [that dispute] is one not settled by negotiation or other agreed mode of settlement.” 82
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As to how “objective determination” is carried out, the Fisheries case between Spain and Canada explains that: “It is for the Court itself, while giving particular
attention to the formulation of the dispute chosen by the Applicant to determine on an objective basis the dispute dividing the parties, by examining the position of both parties.” The Nuclear Tests cases further states: “It is the Court’s duty to “isolate the real issue in the case and to identify the object of the claim.” Moreover, Fisheries 83
added an important principle that: “the establishment or otherwise of jurisdiction is
not a matter for the parties but for the Court itself. Although a party seeking to assert a fact must bear the burden of proving it, this has no relevance for the establishment of the Court’s jurisdiction, which is a “question of law to be resolved in the light of the relevant facts.” 84
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2.1.5. Preconditions on UNCLOS Compulsory Jurisdiction under Section 1
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Applicability of the Obligation to Arbitrate under Section 21 of the United Nations
81
Headquarters Agreement of 26 June 1947 Georgia v. Russia, para 139, p. 61
82
Award on jurisdiction, para 150, p. 58; see also Nuclear Tests (New Zealand v.
83
France) p. 466, para. 30; Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case, Order of 22 September 1995, ICJ Reports 1995, p. 288 at p. 304, para. 55
ibid., para 37, p. 22, citing cases Military and Paramilitary Activities in and against
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Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 437, para. 101 and Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment, ICJ Reports 1988, p. 76, para. 16
Article 288(1) of UNCLOS address jurisdiction of UNCLOS tribunals. It provides the: “A court or tribunal referred to in Article 287 shall have jurisdiction
over any dispute concerning the interpretation or application of this Convention which is submitted to it in accordance with this part.” This provision is read in
conjunction with Article 286 pertaining to the application of compulsory procedures which states that:“Subject to section 3, any dispute concerning the interpretation or
application or this Convention shall, where no settlement has been reached by recourse to section 1, be submitted at the request of any party to the dispute to the court or tribunal having jurisdiction under this section.”
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From the readings of these provisions, there are three conditions that need to be satisfied before compulsory procedures are set into motion. First, the subject matter of dispute must concern the interpretation or application of the Convention. The phrase “concerning the interpretation or application of this Convention” has been repeatedly stated in majority of the provisions encapsulated in Part XV of UNCLOS to give emphasis on its importance. It also provides important limitation on the jurisdiction of UNCLOS tribunals. Similar to most constitutive instruments, such limitations are broadly phrased therefore UNCLOS tribunals play an important role in fleshing out the specific rights and obligations to reflect the objective and purpose of UNCLOS.
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The second requirement for compulsory procedures to apply is the condition that “no settlement has been reached in accordance to Section 1.” Despite the equal importance of this requirement, a brief discussion is sufficient in view of the earlier statement. Article 281 contemplates three instances to conclude that no agreement has been reached. These are: first, no agreement has been reached after resort to diplomatic or voluntary procedures in Section 1. Second, there must be no existing agreement between the parties excluding compulsory procedure. Third, when the agreed time limit has expired. Article 282 also excludes the application of compulsory procedure when there is already an existing general, regional or bilateral agreement to resolve disputes which normally are within the framework of UNCLOS. Expeditious
exchange of views is also required when a dispute is to be settled by peaceful means or when such means has been terminated without a settlement as provided for under Article 283.
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The current author recognizes the equal importance of these preconditions to jurisdiction. However, since the study is limited to the two jurisdictional objections pertaining to sovereignty and maritime boundary delimitation raised in the SCS Arbitration, the discussion of this topic is only for the purpose of having a full appreciation on the limits of compulsory jurisdiction.
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2.1.6. Exceptions provided under Section 3
In relation to the principle of consent, it is a common practice of states to qualify their consent by allowing reservations or declarations excluding the application of certain treaty provisions from compulsory jurisdiction. This takes place when dispute involves politically sensitive issues. On this aspect, UNCLOS is not different from most Conventions for it also contains provisions limiting compulsory jurisdiction. This is found in Section 3 Part XV thereof.
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This section provides for an automatic exception to compulsory procedure when dispute involves the exercise by a coastal state of its sovereign rights or jurisdiction under Article 297. By implication, the jurisdiction of UNCLOS tribunal is limited only to those disputes concerning the sovereign rights or jurisdiction in the exclusive economic zone thereby confining only to cases specifically identified therein. Since there is no debate that dispute on sovereignty lies outside the scope of compulsory jurisdiction, focus will be made on the categories mentioned in Article 298(1)(a)(i) in relation to the second jurisdictional objections argued by China.
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Article 298 on the other hand pertains to optional exceptions wherein a state through a declaration in writing excludes from compulsory procedure in relation to
territorial sea , EEZ , or CS of states with opposite or adjacent coasts as well as 85 86 87
historic bays or title. This also excludes disputes relating to military activities as well as lawful enforcement activities relating to marine scientific research and fishing in the EEZ. Lastly, disputes in respect of which the Security Council is exercising its functions under the UN Charter may also be excluded from compulsory procedures at the election of states.
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THIRD CHAPTER
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3.1. Jurisdictional Obstacle on Sovereignty in South China Sea Arbitration
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Applying the principles laid down in the previous chapter, this chapter examines the nature of dispute between China and the Philippines to determine whether the arbitral tribunal has exercised its jurisdiction in accordance with UNCLOS. It dwells with particularity on the argumentation forwarded by China and the Philippines as well as the decision of the arbitral tribunal in finding jurisdiction. This chapter also provides for a detailed analysis on with the question of whether the issues raised by the Philippines is one pertaining to the unresolved territorial dispute with China or one concerning the interpretation or application of UNCLOS.
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3.1.1. Issues Raised by the Philippine
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The Philippines accepts the existence of issues over sovereignty on the contested maritime features. However, the Philippines states that “disputes with China in the SCS have more than one layer” in which the submissions made do not require the Tribunal to determine the extent of China’s sovereignty over land territory, or that
UNCLOS, Article 15 85 ibid, Article 74 86 ibid, Article 83 87
of any other state.” During the jurisdictional hearing, the Philippines pointed out the 88
bilateral talk with China that took place in 1995. In the said talk, although both states have accepted the existence of territorial sovereignty dispute, they also acknowledged that some issues raised on their dispute could be settled in accordance with UNCLOS. 89
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The Philippines considers explicitly that it has submitted a dispute concerning the interactions of “historic rights” claimed by China with the provisions of UNCLOS. It contended that China’s claim based on “historic rights” as 90
encompassed by the “nine-dash line” were inconsistent with the Convention therefore invalid. Moreover, “China’s maritime entitlements in the SCS, like those in the 91
Philippines should not exceed beyond what is permitted by UNCLOS” According to 92
the Philippines,
“the question raised by the conflicting positions boils down to this: are maritime entitlements to be governed strictly by UNCLOS, thus precluding claims of maritime entitlements based on “historic rights”? Or does the UNCLOS allow a state to claim entitlements based on “historic” or other rights even beyond those provided for in the Convention itself?” 93
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Concluding, the Philippines considered that this is a dispute “not only over parties’ respective maritime entitlements in the SCS, but also over the very object and purpose of the Convention.” 94
ibid, para 141, p. 48
88
ibid, p. 68, citing Government of the Philippines, Transcript of Proceedings
89
Republic of the Philippines-People’s Republic of China Bilateral Talks (10 Aug.
1995), p. 3, MP, Vol. VI, Annex 181. See MP, Vol. I, para, 328 ibid, para 151, p. 58
90
ibid, par 4
91
Award on Merits, p. 67, para 169.
92
Jurisdictional Hearing, p. 15
93
ibid, p. 28
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3.1.2. Objections Raised by China
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In response to the claims of the Philippines, China argued that the real issue is about territorial sovereignty over the maritime features under dispute “which is beyond the scope of the Convention and does not concern the interpretation or application of the Convention.” Moreover, “to decide upon any of the Philippines’ 95
claims, the Arbitral Tribunal would inevitably have to determine, directly or indirectly, the sovereignty over both the maritime features in question and other maritime features in the South China Sea.” China likewise stated the general 96
principle that “sovereignty over land territory is the basis for determination of maritime rights” and the Tribunal is in no position to determine the extent of China’s maritime rights without first determining China’s territorial sovereignty over the maritime features in SCS. Consequently, China accused the Philippines of 97
“cunningly” packaging its claims in order to make them appear as questions concerning the interpretation or application of the Convention. Therefore, based on 98
the foregoing contentions, China concluded that the arbitral tribunal lacks jurisdiction to decide on the claims submitted by the Philippines.
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Despite China’s non-participation in the proceedings, it issued a Position Paper date 7 December 2014. The Tribunal has accepted this as its position and counter-arguments on the issues raised by the Philippines. In the said position paper, 99
China insisted that, “the essence of the subject-matter of the arbitration is territorial sovereignty over several maritime features in the SCS, which is beyond the scope of the Convention and does not concern the interpretation or application of the
Position paper of China, para 9
95 ibid, para 134, p. 46 96 ibid, para 135, p. 46 97 ibid, 14 98
Award on Jurisdiction, para 133, p. 45
Convention.” Moreover, “to decide upon any of the Philippines’ claims, the Arbitral 100
Tribunal would inevitably have to determine, directly or indirectly, the sovereignty over both the maritime features in question and other maritime features in the South China Sea.” China likewise stated the general principle that “sovereignty over land 101
territory is the basis for determination of maritime rights” and the Tribunal is in no position to determine the extent of China’s maritime rights without first determining China’s territorial sovereignty over the maritime features in SCS. 102
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3.1.2. Decision of the Arbitral Tribunal
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The tribunal concludes that the submissions made by the Philippines “reflects a dispute concerning the source of maritime entitlements in the SCS and the interaction of China’s “historic rights” with the provisions of the Convention.” This 103
dispute is evident from diplomatic exchanges made by China and the Philippines following the Note Verbales issued by former in 2009. 104
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The tribunal further assessed based on the said diplomatic communications between China and the Philippines that a “dispute over sovereignty is readily apparent on its face.” However, it does not follow that “sovereignty is the appropriate 105
characterization of the claims the Philippines has submitted in the proceedings.” 106
ibid, para 133, p. 45 100 ibid, para 134, p. 46 101 ibid, para 135, p. 46 102
Award on Jurisdiction, para 164, p. 64
103 ibid. 104 ibid, para 152, p. 59 105 ibid, para 152, p. 59 106
According to the tribunal, “it is entirely ordinary and expected that two States with a relationship as extensive and multifaceted as that existing between the Philippines and China would have disputes in respect to several distinct matters.” It cited the case 107
of United States Diplomatic and Consular Staff in Tehran which states that there are no basis to “decline to take cognizance of one aspect of a dispute merely because that dispute has other aspects, however important.” 108
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The tribunal also applied two alternate tests to determine whether the submitted issues indeed relate to sovereignty:
“(a) the resolution of the Philippines’ claims would require the Tribunal to first render on a decision on sovereignty, either expressly or implicitly; or (b) the actual objective of the Philippines’ claims was to advance its position in the Parties’ dispute over sovereignty. 109
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Accordingly, the arbitral tribunal concluded that these situations do not exist in this case since nothing in the Philippines submissions would implicitly call for determination of sovereignty.110. It likewise agrees to the Philippines’ suggestion that its submissions could still be heard even on the premise that China is correct in its sovereignty claims over the disputed maritime features. The arbitral tribunal added that the Philippines’ submission “neither advances nor detracts from either party’s claims to land sovereignty in the SCS” since the proceedings has initiated with the objective of narrowing the issues in dispute between the parties. 111
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3.2. Analysis on the Arbitral Award
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ibid, para 153, p. 59
107
ibid, para 152, p. 59, United States Diplomatic and Consular Staff in Tehran
108
(United States v. Iran), Judgment, ICJ Reports, 1980, para 36, pp. 19-20 ibid, par 153, 59-60 109 ibid, para 153, pp. 59-60 110 ibid, par 153, p. 60 111
As state parties to UNCLOS, China and the Philippines have, no doubt, gave their consent to be subjected to compulsory jurisdiction. This remained unaffected despite the objection of China to the jurisdiction of the arbitral tribunal. Still, consent is not enough to conclude that the issues raised in this case is subject to compulsory arbitration.
It is required that consent must relate only to a specific subject matter, by virtue of Article 288(1), the exercise of jurisdiction by the arbitral tribunal is limited only to disputes concerning the interpretation or application of UNCLOS. In addition, it is bound by its duty to satisfy itself that it has jurisdiction and should not merely rely on the claims advanced by the Philippines. The arbitral tribunal has performed this mandate when it required the Philippines to submit further written arguments on certain issues relating to jurisdiction even though such were not included in China’s position paper. 112
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Since the main source of controversy revolves on the nature of claims submitted by the Philippines, another important point to consider is the existence of an actual dispute and whether such dispute concerns the interpretation or application of UNCLOS. Upon examination of facts particularly the statements and diplomatic exchanges between China and the Philippines, it is conclusive that a dispute exists between them. Whether dispute involves subject matter concerning the interpretation or application of UNCLOS is what makes the case complicated since this requirement is harder to satisfy.
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Bearing notable similarities with this case, the current author finds it significant to investigate the MPA Arbitration between Mauritius and United Kingdom. In both cases, the applicants have a longstanding history of land sovereignty dispute with the respondents. The case also required arbitral tribunals to make determination on the nature of dispute as one concerning the interpretation or application of UNCLOS or a dispute on territorial sovereignty. In essence, the issue is whether the tribunal is competent to settle the case despite concurrent unresolved
Award on Jurisdiction, para 13, p. 11
