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

On December 7, 2014, China officially published its Position Paper “on the Matter of Jurisdiction in the South China Sea Arbitration initiated by the Republic of the Philippines” [hereafter, “China Position Paper”]. The China Position Paper was issued two days after the US State Department issued its December 5, 2014 Limits in the Seas No. 143 Report, “China: Maritime Claims in the South China Sea”, authored by its Office of Ocean and Polar Affairs and Bureau of Oceans and International Environmental and Scientific Affairs [hereafter, “US State Department Report”]. The US State Department Report concludes, in particular, that: “unless China clarifies that the dashed-line claim reflects only a claim to islands within that line and any maritime zones that are generated from those land features in accordance with the international law of the sea, as reflected in the [UN Convention on the Law of the Sea/UNCLOS], its dashed-line claim does not accord with the international law of the sea.” (US State Department Report, p. 24). China’s 7 December 2014 Position Paper provides its first official, public, and certainly most authoritative clarification of its arguments and claims to date, and certainly introduces a significant dimension to the ongoing arbitration proceedings. Vietnam is reported to have filed a (hitherto-undisclosed) statement to the Annex VII arbitral tribunal, asking the latter to take into account its legal interests while also refuting China’s claims. Although the China Position Paper explicitly states that it should “not be regarded as China’s acceptance of or participation in [the] arbitration” (China Position Paper, para. 2), the Annex VII tribunal is arguably not prevented from taking cognizance of the statements therein as part of China’s jurisdictional objections in this dispute. China itself circulated the Position Paper to members of the arbitral tribunal, albeit stressing that it should not be construed as acceptance of, or participation in, the arbitration (Permanent Court of Arbitration 17 December 2014 Press Release). In its 22 November 2013 Provisional Measures Order in the Arctic Sunrise case (Netherlands v. Russian Federation) – a case where Russia explicitly refused to appear in the proceedings – the International Tribunal for the Law of the Sea (ITLOS) took motu proprio judicial notice of two Notes Verbale by Russia to the Netherlands, as evidence of the nature and content of Russia’s jurisdictional challenge to the existence of a dispute between the parties (Arctic Sunrise Order, paras. 64-65, 68). Notwithstanding China’s disclaimer over its Position Paper, therefore, it is entirely possible that the Annex VII tribunal could refer to the same as China’s official jurisdictional objections, as suggested from the arbitral tribunal’s Procedural Order No. 3, which states that:

“…the Philippines has until March 2015 to “file a supplemental written submission addressing the [arbitral tribunal’s Request for Further Written Argument by the Philippines Pursuant to Article 25(2) of the Rules of Procedure”], and China shall have until 16 June 2015 to provide any comments in response to the supplemental written submission of the Philippines. The Philippines has been invited to address, as it considers appropriate, any public statements made by the Chinese government in relation to the dispute.” (Italics added.)

Considering the likelihood that the Position Paper would initially crystallize China’s jurisdictional objections, and without prejudice to any potential future submission by China on 16 June 2015, there is academic value in assessing the first official articulation of China’s jurisdictional objections. This scholarly preliminary assessment may be necessary as well to spur academic discussion, especially after my colleague Professor Julian Ku characterizes this arbitration as the “Philippines’ Massive Lawfare Blunder in the South China Sea”.

 The Chinese jurisdictional objections, in a nutshell, are the following:

• “The essence of the subject-matter of the arbitration is the territorial sovereignty over several maritime 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” (cf. China Position Paper, para. 3, Part II, paras. 4-29];

• “China and the Philippines have agreed, through bilateral instruments and the Declaration on the Conduct of Parties in the South China Sea, to settle their relevant disputes through negotiations. By unilaterally initiating the present arbitration, the Philippines has breached its obligation under international law” (cf. China Position Paper, para. 3, Part III, paras. 30-56]; and

• “Even assuming, arguendo, that the subject-matter of the arbitration were concerned with the interpretation or application of the Convention, that subject-matter would constitute an integral part of maritime delimitation between the two countries, thus falling within the scope of the declaration filed by China in 2006 in accordance with the Convention, which excludes, inter alia, disputes concerning maritime delimitation from compulsory arbitration and other compulsory dispute settlement procedures ” (cf. China Position Paper, para. 3, Part IV, paras. 57-75).

In this post I will deal with the first jurisdictional objection. I address the second and third objections in another post tomorrow. The Chinese objections are quite similar to arguments previously raised by Professor Stefan Talmon of the University of Bonn, and Professor Bing Bing Jia of Tsinghua University, in their book, The South China Sea Arbitration: A Chinese Perspective (Hart Publishing, February 2014). ProfessorSienho Yee has also recently discussed similar objections in the December 2014 issue of the Chinese Journal of International Law. My preliminary analysis here at EJIL:Talk! by no means represents the Philippine legal position (and to be clear I am not counsel of record for the Philippines, although in the past, I have publicly stated and written that there should be attention paid to potential jurisdictional implications from China’s 2006 Declaration to UNCLOS, when determining dispute settlement options). In the spirit of furthering academic discussion in the international law community – especially on thorny issues of jurisdiction – it is timely to initiate scrutiny of the official jurisdictional battle-lines now emerging between the Philippines’ Notification and Statement of Claim (hereafter “Philippine Statement of Claim”), vis-à-vis China’s Position Paper.

The Philippine Notification and Statement of Claim

As Dapo summarized back in January 2013, the Philippine Notification and Statement of Claim seeks an arbitral award that:

“1) declares that the Parties’ respective rights and obligations in regard to the waters, seabed and maritime features of the South China Sea are governed by UNCLOS, and that China’s claims based on its ‘nine dash line’ are inconsistent with the Convention and therefore invalid;

2) determines whether, under Article 121 of UNCLOS, certain of the maritime features claimed by both China and the Philippines are islands, low-tide elevations or submerged banks, and whether they are capable of generating entitlement to maritime zones greater than 12 M; and

3) enables the Philippines to exercise and enjoy the rights within and beyond its exclusive economic zone and continental shelf that are established in the Convention.” (cf. Philippine Statement of Claim, para. 6. See also para. 41 for items of relief sought.)

 The Philippines filed its ten volume, 4000-page Memorial (not publicly available) on 30 March 2014.

First Chinese Objection: Is the Arbitral Subject-Matter within the Scope of ‘Interpretation or Application’ of UNCLOS?

The China Position Paper generally maintains that “whatever logic is to be followed, only after the extent of China’s territorial sovereignty in the South China Sea is determined can a decision be made on whether China’s maritime claims…have exceeded the extent allowed under [UNCLOS].” (China Position Paper, para. 10) It argues that the Philippines “has cunningly packaged its case…repeatedly profess[ing] that it does not seek from the Arbitral Tribunal a determination of territorial sovereignty over certain maritime features…but rather a ruling on the compatibility of China’s maritime claims with the provisions of the Convention.” (China Position Paper, para. 14).

Referring back to the plain letter of the Philippine Statement of Claim, however, it is readily clear that what is sought is the interpretation of UNCLOS Article 121 (Regime of islands), and the compatibility of China’s 9-dash line map with the maritime zones permitted under UNCLOS. These matters fall well within the purview of interpretation (e.g. UNCLOS Article 121) and application (e.g. examining the maritime limits unilaterally drawn and asserted in China’s 9-dash line map against the permitted maritime zones under UNCLOS Parts II, III, IV, and V). As the International Court of Justice acknowledged in Territorial and Maritime Dispute (Nicaragua v. Colombia):

“The Judgment in the Qatar v. Bahrain case did not specifically address paragraph 3 of Article 121 UNCLOS…The Court therefore considers that the legal regime of islands set out in UNCLOS Article 121 forms an indivisible regime, all of which…has the status of customary international law.” [Territorial and Maritime Dispute (Nicaragua v. Colombia), ICJ Reports 2012, 674, at para. 139.]

The Court previously stressed in Maritime Delimitation and Territorial Questions between Qatar and Bahrain, that “international treaty law is silent on the question whether low-tide elevations can be considered to be ‘territory’…”. [Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, ICJ Reports 2001, p. 40, para. 205. As a matter of UNCLOS interpretation, the Court has acknowledged that it remains unclear to date whether any state could lawfully claim sovereignty over a low-tide elevation (LTE), when it is situated more than 12 nautical miles from the mainland coast or another island. [See Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia v. Singapore), Judgment, ICJ Reports 2008, p. 12, paras. 295-296.] The Philippine Statement of Claim emphasizes that submerged features under China’s occupation (or with artificial ‘islands’ constructed on top of them) are not islands within the meaning of UNCLOS Article 121, and at best are LTEs that do not (and consistently with the ICJ’s finding in Qatar v. Bahrain) generate any maritime zones. (Philippine Statement of Claim, para. 14).

By insisting that its territorial sovereignty claims is the ‘precondition’ to any adjudication over the compatibility of the limits drawn in the 9-dash line map with UNCLOS maritime zones, the China Position Paper puts the cart before the horse. It assumes that the features referred to in the Philippine Statement of Claim are indeed islands or at least LTEs capable of generating a territorial sea, and instead directs the argument to China’s historic rights to such features. But this is precisely the lis mota in the ‘interpretation or application’ of UNCLOS to the maritime limits unilaterally drawn in the 9-dash line map. On the plain text of the Philippine Statement of Claim, the Arbitral Tribunal is not requested to adjudicate China’s historic rights to such features vis-à-vis any Philippine claims to such features, but rather to merely investigate the consistency of the 9-dash line maritime limits with the permissible maritime zones under UNCLOS Parts II-V, and to apply UNCLOS Article 121 to determine the nature of the features in the said map as either islands, LTEs that generate a territorial sea, or LTEs that are not yet certain to generate a territorial sea as the ICJ emphasized again in Nicaragua v. Colombia.   There is a world of difference between “maritime delimitation”, which is the “process of establishing lines separating the spatial ambit of coastal State jurisdiction over maritime space where the legal title overlaps with that of another State”; and “maritime limits”, whose establishment “consists of drawing lines that define the maritime spaces of a single state…by its nature a unilateral act.” [Yoshifumi Tanaka, The International Law of the Sea, Cambridge University Press, 2012, p. 187] The Philippine Statement of Claim appears to restrict its position only to seeking a determination of the consistency of China’s maritime limits unilaterally drawn in the 9-dash line map with UNCLOS, and not to delineate any maritime boundaries between the Philippines and China.

In any event, it should also be clear that both the jurisprudence of the International Court of Justice (ICJ) as well as other UNCLOS Annex VII arbitral tribunals favor a broad reading of subject-matter that constitutes “interpretation or application” of a convention or treaty, for purposes of accessing ratione materiae jurisdiction in these tribunals. The ICJ has construed the “interpretation or application” of a treaty or convention to also include related questions such as those involving the consequences of a breach of the said treaty or convention, and those on the quantum of reparations owed as a result of the breach. [Factory at Chorzow (Claim for reparations, Jurisdiction, 1927), PCIJ Series A, no. 8, pp. 21-25; Case Concerning Military and Paramilitary Activities in and around Nicaragua, Merits, ICJ Reports 1986, at p. 142; Application of the Convention for the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia), ICJ Reports 1996, 616, para. 32; and La Grand, ICJ Reports 2001, p. 485, para. 48]. The ICJ has accepted “interpretation or application” of a treaty to include questions on the capacity to conclude a treaty (Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 1949 ICJ Reports 172); authentic interpretation of the treaty [Ambatielos case (Greece v. United Kingdom), 1951 ICJ Reports 10; reservations (Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, 1951 ICJ Reports 15), among others. These examples of ICJ jurisprudence further affirm Jan Klabbers’ observations regarding the liberal and broad scope afforded by the Court to subject-matter that rightfully constitutes “interpretation or application of a convention”:

“The typical formula in a jurisdictional clause provides the ICJ with jurisdiction in case of a dispute involving ‘interpretation or application’ of a convention. This often evokes the predictable argument that while two parties may have a dispute under a convention, the dispute does not concern interpretation or application of that convention, and thus does not come within the Court’s purview. Usually, the Court makes short shrift of such an argument, for the good reason that at some level there will be few disputes that are not about interpretation or application of a convention.” (Jan Klabbers, International Law, Cambridge University Press, 2013, at p 150. Italics added.)

Notably, this similarly liberal and broad scope has also been emulated in regard to subject-matter of disputes that constitute ‘interpretation or application’ of UNCLOS. In the Southern Bluefin Tuna case [Southern Bluefin Tuna case (New Zealand-Japan, Australia-Japan), Award on Jurisdiction and Admissibility, 4 August 2000], the Annex VII arbitral tribunal rejected Japan’s position that its dispute with Australia and New Zealand was a matter for interpretation and application within the exclusive scope of the Convention on Conservation of Southern Bluefin Tuna, and not UNCLOS. The Australia and New Zealand maintained that “[t]here is a dispute over the interpretation or application of a given treaty if the actions complained of can reasonably be measured against the standards or obligations prescribed by that treaty.” (Southern Bluefin Tuna case, para. 41(d), at p. 31). The Annex VII tribunal concurred with this test of reasonableness to determine what amounts to “interpretation or application” of UNCLOS:

“47. …the core of [the] dispute relates to differences about the level of a total allowable catch and to Japan’s insistence on conducting a unilateral experimental fishing program. What profoundly divides the Parties is whether the dispute arises solely under the 1993 Convention, or whether it also arises under UNCLOS…

48…In this and in any other case invoking the compromissory clause of a treaty, the claims made, to sustain jurisdiction, must reasonably relate to, or be capable of being evaluated in relation to, the legal standards of the treaty in point, as determined by the court or tribunal whose jurisdiction is at issue.” (Southern Bluefin Tuna case, paras. 47-48. Italics added.)

Considering the broad scope and liberal reading of what constitutes subject-matter that falls within the scope of “interpretation and application” of UNCLOS, it is immediately clear that the Philippines’ narrow framing of the Statement of Claim falls within this broad scope. To reiterate, the Statement of Claim, as worded, appears on its face to merely seek the application of UNCLOS Parts II-V to the maritime limits unilaterally drawn by China in its 9-dash line map; the interpretation of the regime of islands under UNCLOS Article 121; and the application of UNCLOS Article 121 to the features indicated in the said 9-dash line map, to ascertain whether such features are islands which generate zones under UNCLOS Articles 121(1) and (2), rocks which cannot sustain human habitation or economic life of their own under UNCLOS Article 121(3), or low-tide elevations within the meaning of UNCLOS.