Tribunal ruling not clear victory for Philippines

By Stefan Talmon Published: 2015-11-12 10:48:17

The Tribunal in the South China Sea Arbitration recently rendered an award that has been portrayed by parts of the media as a Philippine “victory” over China. But is this really the case? We should remember that the award in question only addresses the tribunal’s jurisdiction and the admissibility of the Philippines’ claims, that is, whether the tribunal is competent to hear the case at all. So far, nothing of substance has been decided and the Philippines’ claims may still be rejected in their entirety at the merits phase of the proceedings. So what exactly did the tribunal decide?

In the proceedings, the Philippines put forward 15 submissions. Only with regard to five submissions did the tribunal follow the Philippines’ argument that it has jurisdiction to rule on the merits; with regard to two submissions the tribunal found that it will only have jurisdiction if the Philippines is able to prove in the merits phase that the issues involved fall within the territorial sea of Scarborough Shoal (known as Huangyan Island in China), and with regard to eight submissions the tribunal decided that either the Philippines had submitted insufficient information or that it had to examine the matter further in order to decide whether or not it has jurisdiction and therefore joined the question of jurisdiction to the merits of the case. 

While the arbitration continues, for 10 out of 15 submissions the tribunal accepted the possible existence of jurisdictional hurdles, as set out by the Chinese government in its position paper of  December 7 2014 and advanced in the academic literature. The tribunal may thus still find that it does not even have jurisdiction to decide on the merits of 10 of the submissions. Considering that the Philippines had argued that there was no need to join any question of jurisdiction to the merits and that all issues of jurisdiction “could and should be resolved at this stage of the proceedings,” the tribunal’s decision is a slap in the face for the Philippines.

The tribunal in fact confirmed that China may have valid objections to its jurisdiction under Article 297 of the United Nations Convention on the Law of the Sea (UNCLOS), in particular with regard to fisheries or, more generally, the exercise of sovereign rights and jurisdiction by China in its exclusive economic zone. 

There may also be valid objections to the tribunal’s jurisdiction under Article 298 of UNCLOS, in particular with regard to Chinese historic rights in the South China Sea, maritime delimitation, military activities and law enforcement activities. Much will depend on the interpretation of the relevant provisions of UNCLOS and the facts to be established at the merits stage of the proceedings. For example, if the tribunal finds that just one of the maritime features claimed by China in the South China Sea is an island within the meaning of Article 121 of UNCLOS and that its exclusive economic zone or continental shelf overlaps with those generated by the Philippines archipelago, it will have to decline jurisdiction. Similarly, if China’s activities in the South China Sea concern “military activities” or “law enforcement activities” related to fisheries the tribunal will have to refuse to take any decision concerning Chinese fisheries enforcement measures, land reclamation and construction, or the operation of Chinese law enforcement vessels. Finally, if China’s claims to historic rights are found to be permitted by the Convention and within the scope of Article 298 of UNCLOS the Philippines’ claim will founder for lack of jurisdiction.

While this confirmation of China’s position is to be welcomed, there are also some aspects of the decision that do not bode well for any future decision on jurisdiction and the merits. For example, the tribunal establishes by mere inference a “dispute concerning the status of every maritime feature claimed by China within 200 nautical miles of Mischief Reef and Second Thomas Shoal,” despite admitting that “the exact scope of this dispute cannot be determined at present” and “it may emerge, in the course of the tribunal’s examination […], that the Parties are not, in fact, in dispute on the status of, or entitlements generated by, a particular maritime feature.” 

In any case, whatever the tribunal will decide, its final award cannot affect China’s claim to territorial sovereignty over islands, rocks and low-tide elevations in the South China Sea for two simple reasons: The Philippines has expressly and repeatedly asked the tribunal not to rule on questions of territorial sovereignty and, more importantly, the tribunal has confirmed that these questions are outside its jurisdiction.

The author is director of the Institute of Public International Law at the University of Bonn and a Supernumerary Fellow of St Anne’s College, Oxford.

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