The Annex VII arbitral tribunal heard oral arguments from the Philippines last week on the issues of jurisdiction and admissibility of claims in the case it launched against China. Despite high hopes placed on Manila’s cause, these issues remain the most formidable legal obstacles to be surmounted. While the Philippine Memorial has not been made public, the original Notification and Statement of Claims enumerates at least 13 different claims for relief, some of which may include further subsidiary claims. Each of these may have individual or interlocking questions of jurisdiction and admissibility, making for a rather complicated case that must be laid out carefully and argued meticulously.
Like Scylla and Charybdis of ancient maritime lore, jurisdiction and admissibility could spell disaster for Manila’s current legal effort to address the dispute if it fails to persuade the tribunal. It has not exactly been smooth sailing: the decision to consider these issues as preliminary questions and hold separate oral arguments already falls out of step with the announced Philippine preference for the tribunal to deal with both jurisdiction and merits simultaneously and expeditiously.
The purpose of the oral arguments at this stage is only to convince the tribunal of two things: first, that it does have the authority to decide on the claims presented by the Philippines (jurisdiction), and second, such claims are actually ripe for decision (admissibility). The need for oral arguments in addition to the written pleadings arise from the tribunal’s independent appreciation of Manila’s memorial and supplemental submission, as well as China’s position paper and all previous communications. By this time, the matter has been extensively discussed in nearly 500 pages of pleadings supported by 7000 pages of supporting documents and data; the conduct of oral arguments suggests that despite these, not all issues have been fully threshed out to the tribunal’s satisfaction.
Beijing’s principal jurisdictional objections are that it has not consented to the arbitration proceedings; the core of the disputes are sovereignty over the islands and features in the South China Sea; and the Philippine claims are covered by China’s optional exclusions to compulsory dispute settlement under UNCLOS since they require prior maritime delimitations in order to be granted. It further objects to their admission for arbitration on account of its insistence that no prior negotiations have been conducted on the specific claims; the arbitration contravenes earlier commitments to resolve the disputes through consultation and negotiations; and Manila’s unilateral resort to arbitration constitutes an abuse of rights under UNCLOS.
Manila addresses these objections by insisting that China’s ratification of UNCLOS includes consent to Annex VII arbitration on issues of interpretation and application of UNCLOS, under which all its claims fall; it does not seek resolution of sovereignty issues; and it does not require maritime boundary delimitations to determine its rights, but only a declaration of the proper entitlements of the contested features. It also argues that it has in fact engaged in fruitless negotiations with China for the past two decades, the deadlock arising from Beijing’s excessive claims to most of the South China Sea (represented by the Nine-Dash Line map) based on historic rights or title in contravention of UNCLOS; this justifies resort to arbitration. Several days of hearings amplified and detailed these arguments as they pertained specifically to each and every one of Manila’s numerous claims for relief from grievances with China.
As highlighted by the Philippines, the decision on jurisdiction and admissibility could jeopardize the credibility and viability of UNCLOS and its dispute settlement mechanisms. It has portrayed UNCLOS and the Rule of Law as the great equalizer between maritime nations, big and small; the political impact and historical significance of exercising jurisdiction over the South China Sea disputes is eminently attractive if it could take the regional legal situation a step closer toward clarity and resolution. But, Beijing still casts a long shadow; despite absence from the proceedings, its out-of-court counter-factual allegations and jurisdictional objections clearly have enough legal traction for the tribunal to not dismiss them out of hand.
After conclusion of the oral arguments, the tribunal gave China an opportunity to comment on the arguments, and will take until the end of the year to decide on these preliminary questions. The case now depends on at least one of the Philippine’s claims being within the tribunal’s jurisdiction; those pertaining to the validity of China’s Nine-Dashed Line and the jurisdictional entitlements of maritime features remain the most important. If favorably decided, the proceedings may stretch well into 2016 to tackle the merits; if not, then Manila might find its legal case abruptly ended and need to completely rethink its entire approach to the SCS disputes. Either way, the oral arguments represent one more leg in a challenging voyage toward legal certainty in the SCS.