The Philippines scored a procedural victory on October 29, successfully dodging the jurisdiction and admissibility objections posed by China’s position paper released last December regarding Manila’s case against Beijing’s South China Sea claims. In a 151-page decision, a tribunal at the Permanent Court of Arbitration in The Hague affirmed the primacy of the United Nations Convention on the Law of the Sea (UNCLOS) in determining the parties’ maritime rights and assured the integrity and efficacy of the compulsory dispute settlement procedures permitted by Part XV of UNCLOS.
The tribunal’s decision firmly rejected one country’s non-appearance and refusal to participate (a vexing tactic similarly employed by Russia in the ongoing Arctic Sunrise case) as a bar to the UNCLOS Annex VII compulsory arbitration procedure and reinforced it against the challenge of realpolitik. It disposed of China’s complaint that the Philippines’ unilateral initiation of arbitration proceedings is an “abuse of legal process” in the absence of Chinese consent and participation, essentially freeing states from being obligated to endlessly negotiate disputes in deadlock.
The tribunal declared that the ASEAN Treaty of Amity and Cooperation and the 2002 Declaration of Conduct for Parties in the South China Sea do not prevent any claimants from seeking third party dispute settlement. This rebuffed China’s insistence that settlement of the South China Sea disputes has been “locked in” by broad regional consensus. The decision also declared that the participation of other South China Sea claimants is not necessary, especially since Vietnam concurred with the tribunal’s jurisdiction, and none of the other interested parties (Malaysia, Brunei, and even Indonesia) objected despite notice and confidential access to the proceedings.
Most important, the tribunal accepted the Philippine formulation that the 15 claims submitted for judgement only concern the interpretation and application of UNCLOS, not the sovereignty disputes over the various maritime features dotting the South China Sea, and are therefore subject to arbitration. The question of which maritime zones specific features are entitled to has been successfully detached from the issue of delimitation between overlapping maritime zones (from which China has exempted itself), and the tribunal has accepted jurisdiction to decide the former separately. Four of the seven Philippine claims that the tribunal declared fall within its jurisdiction are of this nature.
The remaining three claims over which the tribunal found jurisdiction concern the legality of Chinese activities that endanger Philippine vessels, as well as destructive fishing practices in Scarborough and Second Thomas shoals. These claims involve maritime rights and obligations concerning safety of navigation, life at sea, and obligations to conserve and protect the marine environment that apply to all states regardless of which (and whose) maritime zone the actions take place in.
On seven other Philippine claims, the tribunal found that the question of jurisdiction requires consideration of the merits of the case, and thus deferred judgment on jurisdiction until after further hearings. As for a final general request for an order for China to “desist from further unlawful claims and activities,” the tribunal has requested that the Philippines clarify what those further claims and activities are.
Ultimately this means that all the Philippine claims will have their day in court. It does not suggest that China stands to lose the case completely. Beijing’s secondary line of defense – that each measure for relief requested by Manila ultimately requires maritime delimitation to be carried out before it can be granted – remains to be considered with the merits of the case. Numerous caveats emphasize that jurisdiction is still subject to the effects of any possible overlapping maritime entitlements.
But the jurisdictional decision already stands to benefit other states, regardless of the case’s final outcome. China’s “nine-dash line” claim to most of the South China Sea may now be legally discussed, explained, and evaluated by the tribunal based on the cumulative uncoordinated statements and explanations of Chinese officials and academics, but without their direct participation. Internationally, this could seriously undermine China’s influence over South China Sea stakeholders; domestically, it could challenge the credibility of its leadership.
Other states with their own maritime disputes with China now have a proven legal approach that could be used to bring specific incidents before other Annex VII tribunals, especially those concerning Chinese operations to assert maritime claims beyond the potential 12-nautical-mile territorial sea of any land feature. In particular, incidents involving maritime rights and obligations owed to all states regardless of location at sea could be ripe for referral to Part XV compulsory procedures. Although the substance of any prospective claims could be different so as to avoid potential weaknesses in the Philippine case, a procedural roadmap now exists to bring a dispute to arbitration.
The tribunal’s decision indicates that China’s recent reliance on exceptionalism and realpolitik by harsh assertiveness and disproportionate unilateralism, begun with non-appearance in the arbitration proceedings and culminating in the shocking mass-destruction and conversion of vast coral reefs into artificial islands for potential military control of the disputed area, appears to have backfired. No doubt the tribunal was somewhat conscious of the need to ensure the relevance of UNCLOS dispute settlement mechanisms to the most complex of all maritime and territorial disputes. Any further use of raw power and military/paramilitary strategy would solidify the emergent alignment between other claimants and external parties rallying behind the mutually accepted legal order established by UNCLOS. Worse for China, it could soon invite further, and potentially coordinated, legal challenges from other states.
