As is well known, the 1982 United Nations Convention on the Law of the Sea (here; hereafter Convention) provides for compulsory dispute settlement, albeit subject to various limitations and exceptions. In principle, any dispute regarding the interpretation or application of the Convention may be submitted to binding settlement (Article 286), via a choice for the International Tribunal for the Law of the Sea, the International Court of Justice or arbitration under Annex VIII (Article 287). In case of varying choices by the parties, the default procedure is an Annex VII special arbitration, and this was the procedure used by the Philippines to initiate the case against China.
The latest award in this case (here; hereafter Award on the Merits) has already been commented upon (here, here and here; and here, here, here, here, here and here). Nevertheless, a critical reading of that award and its predecessor on jurisdiction and admissibility (here; noting other views here and here; hereafter Award on Jurisdiction) may bare certain weaknesses that go to their core, and hence possibly their validity, namely whether the Tribunal possessed the requisite jurisdiction to decide certain disputes and render its award on the merits in the first place. Possible flaws lie with its claim that certain disputes do not require it to determine sovereignty, with its claim that China does not invoke historic title, and with its claim that no issues of delimitation are at stake.
To be or not to be … sovereign
From the start it seemed to be common ground that disputes concerning the interpretation or application of the Convention cannot be submitted in order to have disputes over sovereignty settled. Thus, the Philippines bent over backwards to argue that it was not asking the tribunal to decide any question of sovereignty over certain land features in the South China Sea (Award on Jurisdiction, paras. 141-145). China maintained that it possesses undisputed sovereignty over the maritime features in the South China Sea, in particular the Spratly Islands taken as a whole (hereafter Spratlys; otherwise known as Nansha Islands for China and Kalayaan Island Group for the Philippines), and that disputes in this respect are excluded from the jurisdiction of the Tribunal (ibid., paras. 133-137, and Award on the Merits, paras. 182-183, 185-187 and 200).
The Tribunal held that it is “… entirely possible to approach the Philippines’ Submissions from the premise—as the Philippines suggests—that China is correct in its assertion of sovereignty over Scarborough Shoal and the Spratlys” (Award on Jurisdiction, para. 153; footnote omitted) and that it is “… fully conscious of the limits on the claims submitted to it and, to the extent that it reaches the merits of any of the Philippines’ Submissions, intends to ensure that its decision neither advances nor detracts from either Party’s claims to land sovereignty in the South China Sea” (ibid.). However, it rejected the Chinese objections and opined that it did not see “that any of the Philippines’ Submissions require an implicit determination of sovereignty” (ibid.).
Taking the Tribunal’s own legal standard as a starting point, that its decision on the merits ought not to detract from either of the Parties claims of sovereignty, one may question whether it lived up to its responsibility. Obviously, the Tribunal did not advance any possible Philippines’ claims of sovereignty over the maritime features, even if the Philippines had in fact claimed sovereignty over the Spratlys as recently as 2011 (Award on the Merits, paras. 184 and 659-660). However, inversely, the Tribunal did actually detract from Chinese claims of sovereignty in two ways: first, by determining the legal status of certain maritime features as low-tide elevations; and second, by holding that China is not claiming historic title over the South China Sea but rather historic rights falling short of title (infra next section).
As to the former, the status of a certain feature as low-tide elevation entails that it does not generate a territorial sea of its own when situated outside the territorial sea of the mainland or an island (Article 13(2) Convention) and, by implication, none of the other possible maritime zones (ibid., para. 308). If a feature is a rock this would entitle that feature to a territorial sea (Article 121(3) Convention), and if a feature is an island this would entitle it to all maritime zones (Article 121(2) Convention). A dispute concerning the status of any particular feature as either rock/island or low-tide elevation is, in my view, by necessary implication also a dispute over sovereignty. Although the Tribunal does not quite say that low-tide elevations cannot attract sovereignty, this follows from its claim that low-tide elevations are not land in the legal sense and cannot be subject to appropriation (ibid., paras. 309). Hence, the Tribunal’s determination of the status of Subi Reef, Gaven Reef (South), Hughes Reef, Mischief Reef and Second Thomas Shoal as low-tide elevations (ibid., paras. 355-358, 359-364 and 366, 367-368, 374-378, 379-381, and 1203 under B(3)c.) detracted from claims of sovereignty advanced by China.
One might object that the legal status of a certain maritime feature is a matter for objective determination, that low-tide elevations are precisely not land and hence cannot be subject to any possible claim of sovereignty (although this is not expressed in the Convention), and that the lack of sovereignty is simply the result of the proper interpretation and application of the Convention. All true; yet this does suggest that, apparently, some disputes over sovereignty are actually (pre-)determined by the interpretation and application of the Convention and for that reason not exempted from the jurisdiction of its dispute settlement bodies. At a minimum, one would have expected some (clearer) argument from the Tribunal on these points.
Historic title v. historic rights
In a similar vein, the Tribunal’s treatment of the jurisdictional limit imposed with respect to disputes over historic title (Article 298(1)(a)(i) Convention; Award on the Merits, paras. 202-229), triggered by China’s declaration of 2006 (Award on Jurisdiction, para. 365), may engender some cause for concern. The Tribunal noted China’s position on sovereignty over the Spratlys and adjacent waters and “its claim to ‘relevant rights in the South China Sea, formed in the long historical course’ ” (Award on the Merits, para. 206). However, in the absence of more detailed information, it held that it had to ascertain whether China did indeed claim historic title with respect to the area enveloped by the ‘nine-dash line’ (see map, ibid., p. 77) on the basis of China’s conduct (ibid., para. 206).
The Tribunal held that China claims historic rights to the living and non-living resources within the area enveloped by the nine-dash line independently from the Convention (ibid., paras. 207-211 and 214). However, it observed that China had declared baselines for Hainan and the Paracel Islands but not for the Spratlys, and that China had stated that it respects the freedoms of navigation and overflight in the South China Sea. In view of the lack of baselines and China’s respect for freedom of navigation and overflight, otherwise not applicable within internal waters or the territorial sea (leaving aside the right of innocent passage; Articles 2 and 17-32 Convention), the Tribunal concluded that China did not see the area within the nine-dash line as part of its internal waters or territorial sea (ibid., para. 212-214).
Distinguishing historic rights from historic title, the Tribunal then observed that the latter involves a claim of sovereignty over maritime areas based on historical circumstances (ibid., para. 226). Although disputes concerning historic title could be excluded pursuant to Article 298(1)(a)(i) Convention, disputes over historic rights are not included within that exception (ibid.). The Philippines had argued that China had in public statements, made in Chinese, used historic rights rather than historic title. Following up on this, the Tribunal took note of the fact that the Note Verbale of 6 July 2011 spoke of “waters of which China has historic titles including sovereign rights and jurisdiction”, but attributed this to an error of translation or imprecise drafting rather than a claim of sovereignty over the whole of the South China Sea (ibid., para. 227). Buttressing that assertion, the Tribunal considered China’s conduct to be dispositive proof of lack of a claim of historic title, as it did not consider the waters of the South China Sea to be internal waters or territorial sea (ibid., para. 228).
The Tribunal thus concluded that China only claims historic rights short of title and that consequently it could rule upon Philippines’ submissions 1 and 2, which purported to obtain a ruling that Chinese claims of historic rights, or sovereign rights or jurisdiction, within the area of the nine-dash line are inconsistent with the Convention (ibid., para. 229; see also para. 278). Having reduced China’s (potential) claim from historic title to historic rights, the Tribunal next ruled that China could not invoke any historic rights to living and non-living resources within the area of the nine-dash line exceeding China’s maritime zones under the Convention (ibid., paras. 261-262). Additionally, it considered that China could not show any evidence demonstrating that it had “historically regulated or controlled fishing in the South China Sea, beyond the limits of the territorial sea” and regarding non-living resources historical activity restricting or controlling their exploitation was simply absent (ibid., para. 270; also para. 275). In taking this course of action, the Tribunal effectively denied China’s recourse to historic title to justify its claims of sovereignty in the South China Sea and ruled, again by implication, on the merits of that claim. After all, if China could not establish its claim to historic rights, it would necessarily and unavoidably also fail in any attempt to prove historic title.
Ultimately, the Tribunal constructed the legal position of China to mean that no claim of historic title was advanced, notwithstanding the express language of the 2011 Note Verbale and China’s constantly pressed view that it possesses undisputed sovereignty over the Spratlys conglomerate rather than its islands assessed individually. This approach, in and of itself, goes against the supervening reality of auto-interpretation (or auto-determination) in international relations, since a State decides for itself its legal position as against other States (Air Services Agreement Award, para. 81; here). Rather than determining China’s claim(s) for it, the Tribunal ought to have just taken note of the inconsistencies between claim and conduct. On the assumption that China does invoke historic title, it should have applied the jurisdictional limitation of Article 298(1)(a)(i) of the Convention and ruled that it could not settle such a dispute.
Entitlement v. delimitation
In its 2006 declaration under Article 298(1)(a)(i) of the Convention, China also triggered the exclusion of disputes as to the interpretation and application of sea boundary delimitations under Articles 15, 74 and 83 of the Convention. The Philippines argued that the Tribunal would not be required to interpret or apply any of those articles; hence the jurisdictional limitation would not come into play. In its view, the reason for this is that these provisions only apply in case of overlapping entitlements of coastal States; as none of the features claimed by China could generate an EEZ or continental shelf, there simply could not be any overlap (Award on Jurisdiction, paras. 374-375). Opposing this view, China opined that the issues presented by the Philippines are “part and parcel of maritime delimitation”, and characterised this as “an integral, systemic process” (ibid., paras. 138 and 366).
Rejecting the Chinese view, the Tribunal stressed that the Philippines was not asking it to engage in the delimitation of any sea boundary (ibid., para. 157; Award on the Merits, para. 92). It argued that if any of the features claimed by China generates an EEZ or continental shelf, the question of overlapping entitlements would raise issues of delimitation and this could limit its jurisdiction over certain of the Philippines’ claims. The Tribunal then held, in reverse, that if none of the features claimed by China constitute islands entitled to an EEZ or continental shelf, no question of overlap would arise (Award on Jurisdiction, para. 369); hence the jurisdictional limitation would not apply. In the merits phase the Tribunal did indeed declare that none of the features claimed by China constitute an island generating an EEZ or continental shelf and that consequently no overlapping entitlements exist (Award on the Merits, paras. 1203 under B.(6) and (7)).
The Tribunal argued that issues of delimitation come into play only in case of States with opposite adjacent coasts and overlapping entitlements (Award on Jurisdiction, para. 156). In other words, a decision on delimitation may necessitate a decision on entitlements, but a decision on entitlements does not necessarily involve a decision on delimitation. This means, in terms of logic, that the Tribunal believes that it can come to a conclusion on the rightness or wrongness of the premise(s) of the reasoning about delimitation, without ruling on the conclusion or deduction that follows. Two objections may be made here: first, the rightness or wrongness of a claim cannot be used, without further, so as to determine the applicability of the jurisdictional limitation concerning disputes over delimitation; second, there are in fact overlapping entitlements.
In the first place, whether a certain dispute has been excluded from the jurisdiction of a court tribunal should not be decided exclusively on the basis that one of the parties to the dispute pursues a claim that, if decided on its merits, is wrong in law or fact. To put it another way, the Philippines’ claim that there are no issues of delimitation depends on the correctness of its claim on the merits that none of the features claimed by China are entitled to an EEZ or continental shelf. That China is wrong on that claim on the merits should not be the basis for ruling that the jurisdictional limitation on delimitation does not apply. After all, the exclusion of jurisdiction of Article 298(1)(a)(i) Convention concerns disputes, which are evidenced by “… a disagreement on a point of law or fact, a conflict of legal views or of legal interests between two persons” (PCIJ, Mavrommatis Palestine Concessions, Jurisdiction, p. 11; here). Moreover, exclusions of jurisdiction are precisely a device to protect States from litigation in case of weak legal positions, such as possible violations of international law (ICJ, Fisheries Jurisdiction (Spain v. Canada), paras. 54-56; here). The Philippines’ strategy has been to deny any possible claim of China to an EEZ or continental shelf for any of the features in the Spratlys; hence its claim that none of the features concerned constitute islands entitled to an EEZ or continental shelf. In this way, the Philippines attempted, successfully as it turns out, to maximise its own claim to a 200 nm EEZ and continental shelf, even if at the expense of its own claim to sovereignty over the Spratlys. The Tribunal went along with this strategy of deconstructing the larger disputes over Chinese sovereignty and jurisdiction over the entire South China Sea into multiple smaller disputes. This rather obvious ploy should have given the Tribunal pause to think twice, since the Philippines’ claims on the determination of entitlements were just another way to avoid the strictures on jurisdiction over delimitation.
In the second place, even assuming the Tribunal is correct in holding that those features claimed as islands by China are only rocks, the conclusion still does not follow that there are no overlapping entitlements. In fact, the Philippines’ claim to an EEZ ranging 200 nm overlaps with the 12 nm territorial sea that may be claimed by China for some of the rocks concerned, e.g. Mischief Reef, Second Thomas Shoal, Itu Aba, and West York Island (Award on the Merits, paras. 399, 401, 403, and 407 for possible other features not discussed by the Tribunal; assuming of course China can establish title). Admittedly, this is not the kind of overlap of entitlements contemplated by Articles 15, 74 and 83 of the Convention: these envisage entitlements in kind – territorial sea v. territorial sea, EEZ v. EEZ, and continental shelf v. continental shelf.
Technically, then, it is arguable that the jurisdictional limitation of Article 298(1)(a)(i) Convention on boundary delimitations does not apply, as no question of interpretation or application of those provisions is involved. Nevertheless, assuming that in case of an overlap of a territorial sea of a rock with an EEZ or continental shelf the territorial sea prevails, a delimitation has in effect taken place, even if no coordinates have been set or a line drawn on a map (for instructive visual aid, see map in Award on Jurisdiction, p. 51). As such, what we have here instead is an overlap of entitlements and delimitation that does not appear to have been regulated by the Convention; consequently, deciding this kind of overlap would not fall within the jurisdiction of the Convention’s dispute settlement bodies either.
The final word?
To be clear, the Tribunal’s rulings on the merits appear solid and China’s claims to sovereignty and jurisdiction over the area within the nine-dash line stand on shaky ground. But is this the end of the line? Most likely not, as some weaknesses may be detected in its reasoning on jurisdiction. Those will no doubt become the bones of contention for the future, as China’s rather predictable response demonstrates: that the awards are “null and void” and that it will “never accept any claim or action based on the awards” (here; see also here for its recent white paper on settling the South China Sea disputes through negotiation).