The Jurisdictional Rubicon: Scrutinizing China’s Position Paper on the South China Sea Arbitration – Part II

Yesterday I set out the background to the Position Paper issued by the China, on December 7, 2014, “on the Matter of Jurisdiction in the South China Sea Arbitration initiated by the Republic of the Philippines” [hereafter, “China Position Paper”] and examined China’s first objection to the jurisdiction of the arbitral tribunal. In this post, I consider the other Chinese objections.

Second Chinese Objection: Did the Philippines violate the duty to negotiate in regard to the subject-matter of this dispute, when it initiated the arbitration?

The China Position Paper effectively maintains that the ‘exclusive’ dispute settlement mechanism between the Philippines and China on the South China Sea is friendly consultations and negotiations (China Position Paper, paras. 30-39). This position would appear tenable, if one were to tacitly accept the characterization of the arbitration’s subject-matter as one involving claims for maritime delimitation, rather than merely the “interpretation or application of UNCLOS” to the maritime limits drawn in the 9-dash line map as well as to the submerged geographic features described therein.

Notwithstanding the disputed characterization of the arbitration’s subject-matter, however, it is difficult to see where a duty to exclusively pursue negotiations or friendly consultations exists. Ordinary textual examination of the bilateral instruments and multilateral instrument (e.g. the 2002 ASEAN Declaration on the Code of Conduct of Parties in the South China Sea) referenced in the China Position Paper, appears to militate against the notion of an exclusive choice of dispute settlement through ‘friendly consultations and negotiations’. Nothing in the language of the instruments therein definitively rules out compulsory arbitration under Part XV of UNCLOS – which as UNCLOS Part XV also explicitly stresses, is likewise a peaceful means of dispute settlement in international law. Moreover, UNCLOS Part XV Article 283(1) carefully stresses that “[w]hen a dispute arises between States Parties concerning the interpretation or application of this Convention, the parties to the dispute shall proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means.” (Italics added.) This describes a remarkably low threshold for an applicant State to be able to demonstrate the failure to reach settlement (e.g. either failure of negotiations or failure to reach settlement through other peaceful means), before being able to access compulsory arbitration through an Annex VII tribunal under UNCLOS Part XV, Article 286. One can well anticipate that the Philippines could substantiate its prior recourse to “peaceful means” of dispute settlement through various diplomatic notes verbale sent to China, as well as to the United Nations, diplomatic protests at the UN as expressed during the 2012 Scarborough Shoal incidents, as well as other ongoing public statements of protest against continuing escalations that have occurred since the filing of the Statement of Claim in January 2013 (e.g. March 29, 2014 incident at Ayungin Shoal/Second Thomas Shoal; China’s reported construction, through reclamation, of a man-made island or airstrip at Fiery Cross Reef; as well as to potentially note Vietnam’s protests and standoff with China on its deployment to, and operation of, an oil rig at the disputed Paracels Islands).

While I am not privy to the history, if any, of the formal diplomatic negotiations or other informal negotiations between the Philippines and China in relation to the subject-matter of the arbitration, one can draw instructive authority from ICJ jurisprudence when seeking to determine any alleged ‘preconditional’ weight to negotiations (or, as in UNCLOS Part XV Article 286, “other peaceful means”), before a State can pursue recourse to inter-State adjudication. In its Advisory Opinion in Interpretation of Peace Treaties, the Court considered that diplomatic exchanges between a number of States could demonstrate the existence of a situation ‘in which the two sides hold clearly opposite views concerning the performance or non-performance of certain treaty obligations’, leading to a conclusion that ‘international disputes have arisen’ and that ‘parties have not succeeded in settling their disputes by direct negotiations’ (Interpretation of Peace of Treaties, Advisory Opinion, ICJ Reports 1950, p. 65, at pp. 74 and 76). The Court emphasized in Georgia v. Russia that where a precondition of negotiation is duly established, “the precondition of negotiation is met only when there has been a failure of negotiations, or when negotiations have become futile or deadlocked.” [Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment of 1 April 2011, para. 159]. All that is required would be to show that “no reasonable probability exists that further negotiations would lead to a settlement.” [South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment, ICJ Reports 1962, p. 345]. Negotiations should be conducted in good faith, with “a genuine intention to achieve a positive result” [North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; FRG v. The Netherlands), ICJ Reports 1969, at para. 85]; as well as acting in good faith to “pay reasonable regard to the legal rights of the other”. [Fisheries Jurisdiction (United Kingdom v. Iceland), ICJ Reports 1974, at p. 33].

It will be up to tribunal to determine and resolve questions of fact on negotiations or other peaceful means resorted to before recourse to adjudication in each case, such as the questions of whether negotiations have indeed taken place, and whether they failed, became futile, or were deadlocked. [Pulp Mills on the River Uruguay (Argentina v. Uruguay), ICJ Reports 2010, at p. 64, para. 133; Georgia v. Russia, supra, at para. 160].  The evidentiary standard to show failure to reach settlement, at least insofar as UNCLOS Article 283(1), does not appear excessively difficult to hurdle.

Third Chinese Objection: Is the Philippine Statement of Claim, in reality, a maritime delimitation that China expressly excluded from UNCLOS Part XV compulsory arbitration through its 2006 Declaration?

The China Position Paper restates China’s 2006 written declaration under UNCLOS Article 298 (“The Government of the People’s Republic of China does not accept any of the procedures provided for in section 2 of Part XV of the Convention, with respect to all categories of disputes referred to in paragraph 1(a), (b), and (c) of Article 298 of the Convention.”), referring to “disputes concerning maritime delimitation, historic bays or titles, military and law enforcement activities, and disputes in respect of which the Security Council of the United Nations is exercising the functions assigned to it by the Charter of the United Nations” (China Position Paper, para. 58).

As previously discussed, it should be clear that Philippine Statement of Claim stops far too short of any claim to maritime delimitation in the South China Sea, when it merely seeks a ruling on the consistency of the maritime limits unilaterally drawn by China in its 9-dash line map with the permissible maritime zones under UNCLOS. The Philippine Statement of Claim does not ask the arbitral tribunal to draw any maritime boundaries with China or other claimants in the South China Sea, but rather seeks to interpret and apply UNCLOS to China’s extant maritime limits or areas unilaterally drawn in the 9-dash line map. As the International Court of Justice emphasized in Maritime Delimitation in the Black Sea (Romania v. Ukraine): “Delimitation is a function which is different from the apportionment of resources or areas.” [Maritime Delimitation in the Black Sea (Romania v.Ukraine), Judgment, ICJ Reports, 2009, at para. 163.] As former ICJ President Judge Shi Jiuyong lectured in 2010, the following are the operational steps followed by the Court when resolving a dispute calling for maritime delimitation:

“Normally, the Court must first consider whether any part of the maritime delimitation is already the subject of formal or tacit agreement between the parties – if so, the Court must not disturb that aspect of the delimitation.

– The Court must then determine the relevant coasts for the delimitation and determine which base points are to be used for the construction of a provisional equidistance line. The choice of base points is to be made on a purely legal basis with any inequities arising from such a choice to be dealt with at a later stage.

– In most cases, the Court will then proceed to draw a provisional equidistance line (unless the special/relevant circumstances are such as to warrant the application of an entirely different method).

– The Court will then consider whether the provisional equidistance line (or other line chosen) needs to be modified to achieve an equitable solution, having regard to a number of special/relevant circumstances. Circumstances related to coastal geography (in particular length of the coastline, shape of the coastline and presence of islands) are the most relevant in this context. However, the Court may also have regard to a range of other circumstances such as historic title, socio-economic considerations, distribution of natural resources, security and conduct of the Parties.

– The Court may apply an ex post facto disproportionality test to verify whether the delimitation line as modified is equitable and if it is not, make any further necessary modifications.

– Finally, the Court will also need to specify starting and end points to the delimitation and will need to avoid encroaching on the rights of third States.”

None of the above steps appear to have been sought or requested at all from the Annex VII arbitral tribunal under the Philippine Statement of Claim. As seen from the items of relief sought in Part V therein, the Philippines has not asked the arbitral tribunal to rule on the claims to title of any of the claimants to the South China Sea; neither is the tribunal requested to draw a maritime boundary anywhere. What is ultimately at issue in the Philippine arbitration is the clarification of the consistency of the maritime limits drawn in the 9-dash line map, with the maritime limits prescribed under UNCLOS. Contrary to the China Position Paper’s insistence that this is really a matter of territorial sovereignty and maritime delimitation, what the Philippine Statement of Claim appears to seek to clarify, ultimately, is the nature of any potential corroborative evidentiary weight to be attached to China’s 9-dash line map, should an actual maritime delimitation be initiated in the future between disputing parties. This nowhere involves territorial sovereignty, since, as the ICJ rightly noted in Burkina Faso v. Mali, “maps cannot constitute a territorial title, that is, a document endowed by international law with intrinsic legal force for the purpose of establishing territorial rights…maps are only extrinsic evidence of varying reliability or unreliability which may be used, along with other evidence of a circumstantial kind, to establish or reconstitute the real facts…maps can still have no greater legal value than that of corroborative evidence endorsing a conclusion at which a court has arrived by other means unconnected with the maps.” [Case Concerning the Frontier Dispute (Burkina Faso v. The Republic of Mali), ICJ Reports 1986, p. 554, at pp. 582-583, para. 54 and 56.].

A Promising Initial Step or Sobering Conclusion?

Taking all of the foregoing analysis in perspective, there do not appear to be strong persuasive reasons articulated thus far that would justify denying the Annex VII arbitral tribunal’s jurisdiction for the Philippines’ narrowly-framed Statement of Claim. At the same time, however, it should be clear that the arbitration is, at best, a preliminary step to clarify issues that could potentially obviate any future, mutually-consensual, proportional, and equitable maritime delimitation among the claimants in the South China Sea. It cannot, and ought not, be seen as the settlement of maritime boundaries between any of the claimants in the region. The China Position Paper accuses the Philippine Statement of Claim to be a “cunning packaging” of its ‘actual’ case for maritime delimitation (China Position Paper, para. 14), while the Philippines describes this arbitration as one finally seeking “a just and durable solution grounded on international law”.  Both descriptions exceed the reality of the narrow and restrictive terms and items of relief sought in the Philippine Statement of Claims.

The actual limited content of the arbitration’s subject-matter should be sobering enough to remind all parties concerned to manage domestic expectations, and any geopolitical perceptions of the legal significance of this case for the region. On the one hand, China might actually have more to gain from participating directly in the arbitration to be able to fully ventilate its legal position and submit all its evidence, not just on the jurisdictional objections, but to also be able – if such objections are overcome – to respond fully on the historical and legal claims on the merits and likewise challenge the Philippines’ corpus of evidence. On the other hand, the Philippines – not having planned for the final delimitation of maritime boundaries with all claimants in the region, and having to likewise reckon with inevitable enforcement issues should China refuse to recognize any arbitral award issued by the Annex VII tribunal – ought likewise to expect (and inform their constituents of) the long-term continuation of the world’s most complex maritime dispute, so long as boundaries in this region remain unsettled between all six neighboring claimant States. Any favorable arbitral award issuing in favor of the Philippines on this particular Statement of Claim will still not yield a final solution, even if some of the claimant States (such as Viet Nam) are starting to signify some interest in the arbitration, but still without filing any actual official intervention in the case. Crossing the jurisdictional Rubicon is just the cusp of the real beginning for actual international dispute settlement through final and stable maritime boundary delimitation in the South China Sea.