8 January 2016
The Philippines/China arbitration has entered its final phase. The Arbitral Tribunal established under Annex V of the Law of the Sea Convention (LOSC) delivered its award on jurisdiction and admissibility on 29th October 2015, and the merits hearing was concluded on 30th November. The award on remaining issues of jurisdiction and the merits is expected in 2016.

The Tribunal found that it had jurisdiction with respect to some issues (submissions made by the Philippines: 4, 6, 7, 10, 11, 13) and reserved its decision on jurisdiction for the merits phase for the rest (see paragraphs 397-412 of the Award). The issues for which the Tribunal found that it had jurisdiction mainly relate to the legal status of certain maritime features as rocks under article 121 (3) LOSC,  low-tide elevations, and protection of the marine environment and activities in the territorial sea around Scarborough Shoal.

China has not participated in the proceedings as it opposes the jurisdiction of the Tribunal for the reasons explained in its position paper on the matter of jurisdiction in the South China Sea arbitration. A month ago, I participated in an international seminar organised by the Institute of Boundary and Ocean Studies of Wuhan University on ‘international law issues surrounding the South China Sea arbitration initiated by the Philippines against China’. During the workshop, the award was criticised by some scholars mainly on the issues raised by China in its position paper. China has argued that the dispute is primarily about sovereignty and maritime delimitation which are outside the jurisdiction of the Tribunal, and that the questions posed by the Philippines cannot be decided unless issues related to sovereignty and maritime delimitation are decided first. In particular, with respect to maritime delimitation, the award was criticised for artificially dividing issues of maritime entitlement from the actual drawing of a boundary which, according to China, are all related to maritime delimitation, and thus excluded from the jurisdiction of the Tribunal by virtue of China’s 2006 Declaration and article 298 (1) (a) of the Law of the Sea Convention.

To my mind, the award was well-reasoned and careful in its consideration of jurisdictional issues.  The Tribunal found that none of the Philippines submissions ‘require an implicit determination of sovereignty’ (para. 153). With respect to maritime delimitation, it found that considerations related to entitlement to maritime zones is a distinct issue and does not constitute a dispute over maritime boundary delimitation per se (para. 155-6). It is true that the Philippines has dissected the dispute into its layers and has presented its submissions in such a way so as to avoid the jurisdictional obstacles presented by China’s 2006 Declaration which excludes maritime delimitation. China is right that the core of the dispute is sovereignty over the maritime features, but the dispute is not only about sovereignty. It is a complex and multi-layered dispute and though its components are interrelated, some layers of the dispute can be decided without prejudicing the outcome on others. The Tribunal was however aware (and it did mention it) that the scope of the jurisdiction is limited, and that it needs to be careful not to prejudice the outcome with respect to issues not within its jurisdiction in the specific arbitration (para. 153 and 157), but also that some issues cannot be decided without previously delimiting the maritime zones (see para. 157, reference to submissions 5, 8 and 9).

A number of issues related to jurisdiction are still open and the important issue of historic titles/rights (submissions 1-2) will be addressed in the merits award. With respect to historic titles/rights, the question that the Tribunal has posed for itself (in the characterisation of the dispute as ‘a dispute concerning the interpretation and application of the Convention’) relates to ‘the interaction of the Convention with another instrument or body of law, including the question of whether rights arising under another body of law were or were not preserved by the Convention’ (para. 168). As noted by the Tribunal, ‘this is accordingly not a dispute about the existence of specific historic rights, but rather a dispute about historic rights in the framework of the Convention’.  The main argument advanced by the Philippines lies in the fact that the Law of the Sea Convention ‘supersedes and nullifies any historic rights that may have existed prior to the Convention’ (para. 168 of the Award). Reference by the Tribunal to the potential existence of ‘traditional fishing rights’ ‘within the territorial waters of another state’ (para. 407) with support from the Eritrea/Yemen arbitration might give us an indication that the Tribunal does not share the Philippines’ views on this issue.

The Tribunal also tried to take into account China’s position and to ensure that China’s non-participation did not prejudice either party (paras 12-13, 112-123). Whether the Tribunal misinterpreted some of the points raised by China in its position paper or did not take others into account (as argued by some scholars in the workshop) might be problematic, but this is a risk that a state takes by not participating in the proceedings. The Tribunal relied on China’s position paper to identify the potential objections and arguments that China would have raised if it had participated. A number of publications presenting the Chinese position on jurisdiction had also been published after the initiation of the proceedings and before the hearing. China has not done something similar for the merits phase and this will complicate the job of the Tribunal.  The Chinese position on historic titles/rights in the South China Sea and its relationship with the nine-dash line is not clear, and although China supports that all maritime features of the Spratlys can be regarded as islands generating full maritime zones, it has not provided specific evidence in this respect.

The future of the South China Sea disputes

China is bound by the award on jurisdiction and will be bound by the award on the merits despite its non-participation (articles 288, 296 LOSC, article 9 Annex VII), but in a strongly-worded statement following the issuing of the award on jurisdiction, China reiterated that it considers the award to be null and void and without any effect. Concerns have been raised about the appropriateness of this arbitration in the framework of the complex South China Sea dispute, though legally (and in an ideal world) the award could help the settlement of the dispute by clarifying some of its components (for example the status of maritime features with respect to article 121 (3) LOSC and the potential role of historic rights/titles in the South China Sea). Concerns have been expressed (and a rather bleak picture was painted by one of the scholars in the workshop) about the escalation of the dispute should the Philippines (with the backing of the US, which already operates in the area to assert navigational rights and the freedom of the high seas within the framework of its Freedom of Navigation Program) attempt to ‘enforce’ the award (especially related to maritime entitlements around maritime features which have been found to be article 121(3) rocks).

Some interesting comments by some scholars in the workshop related to the centuries-long use of the South China Sea in a non-Westphalian state-centric way – made within the framework of discussions on historic rights and their relevance in the South China Sea – made me think about the potential inappropriateness of state-centric and sovereignty-oriented traditional law of the sea as a solution to the South China Sea disputes. Suggestions have been made in the past relating to the freezing of sovereignty claims and joint development (concerning exploitation of mineral resources) regardless of maritime delimitation, but also to the consolidation and enhancement of cooperation in other, less controversial, issues related to the management of the seas; i.e. environmental protection. More innovative suggestions about using the concept of common heritage of mankind in a regional context have also been made. A combination of these suggestions with an emphasis on the institutional and functional mechanisms of the common heritage concept could be an innovative and ambitious solution. The emphasis would be on the management of the South China Sea (not only exploitation but also protection) but especially on on sustainable development and ‘green’ management. It would demonstrate leadership and ambition to create a pioneering prototype of sustainable management of the seas with people and the marine environment in its centre. This might sound utopian and even naïve in the current climate of mistrust and antagonism, and any such solution would require strong political will, reconsideration of foreign and national policy and progressive and innovative thinking, but it might be the only solution for the creation of a peaceful sea of harmonious coexistence and collaboration, and effective management.

Dr Sophia Kopela is a lecturer in law at Lancaster University Law School. Her specialisation lies in international law of the sea, international environmental law and public international law. She has contributed articles and papers in international journals and conferences. She is the author of Dependent archipelagos in the law of the sea (Martinus Nijhoff/Brill, 2013)

You can find out more about Sophia’s research at http://www.lancaster.ac.uk/fass/law/profiles/sophia-kopela