On December 8, 2014, the Chinese Embassy in the Netherlands deposited with the Permanent Court of Arbitration (PCA), the Registry for the South China Sea arbitral proceedings, a Note Verbale. The PCA was asked to forward the Position Paper of the Government of the People’s Republic of China on the Matters of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines[1] and its English translation to the five members of the Arbitral Tribunal that was constituted under Annex VII to UNCLOS. On December 11, 2014, the PCA conveyed to the Parties that it had received and forwarded to the members of the Tribunal copies of the Note Verbale from the People’s Republic of China (PRC) and accompanying Position Paper. On December 16, 2014, the Parties to the case were invited to comment on a possible bifurcation of the proceedings, with a view to addressing some or all issues of the Tribunal’s jurisdiction as a preliminary matter.
The 2014 Chinese position paper argues that the arbitral tribunal does not have jurisdiction over the case because: (1) 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 UNCLOS and does not concern the interpretation or application of the Convention; (2) PRC and the Philippines have agreed, through bilateral instruments and the 2002 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; and (3) 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 PRC in August 2006 in accordance with UNCLOS, which excludes, inter alia, disputes concerning maritime delimitation from compulsory arbitration and other compulsory dispute settlement procedures.[2]
Although PRC reiterates that it will neither accept nor participate in the arbitration unilaterally initiated by the Philippines, the Tribunal considered the Chinese position paper as an objection to its jurisdiction over the case. Under Article 20, paragraph 1, of the Rule of Procedure[3] that was adopted by the Tribunal on August 27, 2013, the Tribunal should have power to rule on objections to its jurisdiction. In accordance with paragraph 3 of the same article, the Tribunal should rule on any plea concerning its jurisdiction as a preliminary question. For reasons set out in Procedural Order No. 4 issued on April 21, 2015, the Tribunal considered the Chinese communications constitute, in effect, a plea that the Philippines’ submissions fall outside the scope of the Tribunal’s jurisdiction. As such, the Tribunal decided to bifurcate the proceedings in this case and to limit this month’s Hague hearings to the issue of jurisdiction.
The Tribunal decided not to open the July 2015 hearings to the public. However, after receiving written requests from interested states, the Tribunal permitted the governments of Indonesia, Japan, Malaysia, Thailand, and Vietnam to send small observer delegations.[4] On July 13, 2015, the Tribunal concluded the hearing on jurisdiction and admissibility. By July 23, the Philippines will submit further written responses to the questions posed by the Tribunal during the hearing. The Tribunal also decided to provide PRC with the opportunity to comment in writing, by August 17, 2015, on anything said during the hearings on jurisdiction and admissibility that were held at The Hague. Paul Reichler, a counsel to the Philippines, expects a decision on jurisdiction to be handed down by the Tribunal within 90 days after the hearings.[5] He also said that a final Tribunal award could take years.[6]
Taiwan, a party to the sovereignty and maritime disputes in the South China Sea, has kept a close watch on the development of the arbitration case. Taking note of Articles 3 and 13 of Annex VII to the UNCLOS, the government of Taiwan once considered the possibility of intervention in the case as a third party. This policy option was ruled out because of Taiwan’s unique and complicated political status. Taiwan’s interest in intervention in the case was also impeded by the fact that it is not a party to the Convention.
Taiwan was keen to send representatives to observe the hearings held at The Hague this week. Unfortunately due to the sensitive political and sovereignty issues involved, Taiwan’s request to send a delegation was not granted by the Tribunal. It is very likely that the governments of both the Philippines and the PRC advised the Tribunal not to accept Taiwan’s request because of their respective political considerations — in particular the rigid adherence by both governments to the “One China” policy.
In his July 7 speech at an international conference in Taipei commemorating the 70th anniversary of the ROC victory in the War of Resistance Against Japan, ROC President Ma Ying-jeou stated that the ROC government will “staunchly defend” its sovereignty over Taiping Island in the South China Sea, consistent with international law. In addition, he said, “In the future, the ROC government will continue development on Taiping [Itu Aba Island] with the aim of peace, to make it a hub for humanitarian assistance, environmental protection and scientific research in the Spratly Islands.” President Ma also stressed that Taiping Island meets the definition of an island under international law. Any attempt by other countries to deny Taiping its status as an island will not undermine its legal standing, he said.[7] Clearly these statements were made in response to the ongoing arbitral proceedings at The Hague. In particular, Taiwan is concerned about the Philippines’ claim in its case that Taiping is not an island but a rock under Article 121 of UNCLOS.
Also on July 7, the ROC Ministry of Foreign Affairs issued an eight point statement on the South China Sea,[8] which again demonstrates Taiwan’s concern about a possible negative outcome of the Philippines v. PRC arbitral case concerning the legal status of Taiping Island. Point Three of the Statement stresses that Taiping Island “indisputably qualifies” as an “island” under Article 121 of UNCLOS. It is also emphasizes that the ROC government “will firmly defend this fact.” The Ministry makes it clear that “[a]ny claims by other countries which aim to deny this fact will not impair the legal status of Taiping Island . . . and its maritime rights based on UNCLOS.” Point Eight of the statement provides that “[a]ny arrangement or agreement regarding Taiping Island . . . or other islands in the South China Sea and their surrounding waters that is reached without ROC participation and consent shall have no legal effect on the ROC and shall not be recognized by the ROC government.”
Taiping Island has been claimed by the ROC government since December 1946 and ROC troops have been garrisoned there since 1956. Taipei hopes to convince the members of the Tribunal that the land feature is not a rock, as argued by the Philippines in its Memorial, but an island under the Convention and therefore has the right to generate a 200 nautical mile EEZ and continental shelf. As far as the U-Shaped Line claim is concerned, Taiwan is not yet ready to clarify its legal meaning under international law—hence, its absence from the July 7 statement.
In order to demonstrate to the international community and to the Tribunal that Taiping has been under Taiwan’s effective control since 1956, that it is capable of sustaining human habitation and an economic life of its own, and that it is therefore is an island but not a rock in accordance with Article 121, it is likely that President Ma will visit Taiping Island before the end of 2015. It is also possible that he may announce a roadmap to implement the South China Sea Peace Initiative (SCSPI) that he proposed on May 26 of this year in Taipei. As far as the primary submission of the Philippines in the arbitral case is concerned, that is, that China’s Nine-Dash Line and historic rights claims are contrary to the Convention, Taiwan is adopting a delaying strategy. President Ma will not rush to clarify the legal meaning of Taiwan’s U-Shaped Line before he leaves office in 2016.
[1] The text of this Position Paper in English is available at http://www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1217147.shtml
[2] See Summary of the Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines, available at http://www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1217149.shtml
[3] Available at http://www.pca-cpa.org/showpage.asp?pag_id=1529
[4] PCA 5th Press Release, Arbitration between the Republic of the Philippines and the People’s Republic of China, The Hague, July 7, 2015, available at http://www.pca-cpa.org/showpage.asp?pag_id=1529
[5] By MICHAELA DEL CALLAR , “PHL sees UN court ruling on case vs. China in 3 months,” GMA News Online, July 13, 2015, http://www.gmanetwork.com/news/story/521230/news/nation/phl-sees-un-court-ruling-on-case-vs-china-in-3-months
[6] Toby Sterling, “South China Sea dispute between China, Philippines heads to court,” REUTERS, July 7, 2015, http://uk.reuters.com/article/2015/07/07/uk-southchinasea-arbitration-idUKKCN0PH1K620150707
[7] “Ma: ROC to defend sovereignty, rights over Taiping Island,” WANT CHINA TIMES, July 8, 2015, http://www.wantchinatimes.com/news-subclass-cnt.aspx?id=20150708000051&cid=1101
[8] Available at http://www.mofa.gov.tw/en/News_Content.aspx?n=1EADDCFD4C6EC567&s=EDEBCA08C7F51C98
