The Judges of the Nine-Dash lines


The arbitration initiated by the Philippines against China impugning
the validity of China’s nine-dash lines appear to be on track. Last
week, pursuant to the UN Convention on the Law of the Sea, the
Japanese President of the international tribunal on the Law of the Sea
(ITLOS) completed the five man tribunal that will rule on the
Philippines arbitral claims. Initially, the Philippines appointed its
nominee to the panel, the German Judge at the ITLOS, Professor Rudiger
Wolfrum. Later, the ITLOS president appointed a polish academic to be
act as China’s arbitrator to the panel, Mr. Stanislaw Pawlak. Last
week, the three remaining arbitrators were appointed: Mr. Jean-Pierre
Cot of France, Mr. Chris Pinto of Sri Lanka, and Mr. Alfred Soons of
the Netherlands.

A jurist once remarked that “the law is what the Judges say it is”.
This means that while the Philippines has claimed thattChina’s
nine-dash lines is contrary to the UNCLOS, the 5 man tribunal will be
the sole judge of whether this is in fact the case. Before they can
decide the issue on the merits, they have first to rule whether the
Philippines submissions are covered by the compulsory and binding
dispute procedure under UNCLOS; that is, that it involves issues
relating to “application and interpretation” of the Convention; and
that the issues are not covered by any of China’s reservations, to
wit: disputes involving maritime delimitation; military activities,
including military activities by government vessels and aircraft
engaged in noncommercial service; and disputes concerning law
enforcement activities in regard to the exercise of sovereign rights
or jurisdiction.

Since this five man tribunal will rule on whether China can treat the
South China Sea as its lake,a lot hinges on who these appointed
arbitrators are, Fortunately, in an effort perhaps to convince China
that the Tribunal will arrive at the correct decision, the ITLOS
President, despite the pending maritime disputes existing between his
own state of Japan and China, appointed perhaps the most qualified
arbitrators to rule on the issues of both jurisdiction and the merits.

Here is a short summary of who these arbitrators are:

Mr. Chris Pinto- member of the Sri Lanka bar and Barrister at the
Inner temple, London. Graduate of University of Sri Lanka
(Peradeniya), LL.B; and University of Cambridge: LL.M (International
Law). Honorary Ll. D from University of Colombo (Sri Lanka). Former
.Legal Officer, International Atomic Energy Agency, Vienna.
(1960-1963); Attorney, World Bank, Washington, D.C. (1963-1967)The
Legal Adviser, Ministry of Foreign Affairs, Sri Lanka.
(1967-1977)Member, Sri Lanka Delegation to the U.N. Conference on the
Law of Treaties, Vienna. (1968-1969)Ambassador of Sri Lanka to Germany
and Austria. (1977-1982)Member and Chairman, U.N. International Law
Commission, Geneva.(1973-1982) ;Member (later Chairman), Sri Lankan
Delegation, Third U.N. Conference on the Law of the Sea. (1973-1982)
Secretary-General, Iran-United States Claims Tribunal, The Hague.
(1982 to present) Secretary-General, Iran-United States Claims
Tribunal.
Member (Sri Lanka), Permanent Court of Arbitration, The
Hague.Alternate Member (Sri Lanka), International Court of Arbitration
of the International Chamber of Commerce, Paris.Sole arbitrator in
dispute between Singapore firm and Sri Lanka State Timber Corporation
(Permanent Court of Arbitration);President of Five Member Tribunal in
marine environmental dispute Between Malaysia and Singapore. (Under
Annex VII of the UNCLOS). Source: Source:

http://www.sccietac.org/custom/sccietac/arbiterDetail.jsp?id=1921

Judge Jean-Pierre Cot

Member of the Tribunal (ITLOS) since 1 October 2002; re-elected as
from 1 October 2011; President of the Chamber for Marine Environment
Disputes 2008-2011. Licence en droit, Docteur en droit public, Paris
Law Faculty (1955–1965); Agrégé des facultés de droit et des sciences
économiques (1966). Professor of public and international law and
Dean, University of Amiens (1966–1969); Professor of public and
international law, University of Paris-I (Panthéon-Sorbonne)
(1969–1998); Emeritus Professor, University of Paris-I (1999–present);
Associate Research Fellow, Université Libre de Bruxelles
(1999–present); Counsel and Advocate in a number of cases before the
International Court of Justice: Frontier Dispute (Burkina
Faso/Republic of Mali), Territorial Dispute (Libyan Arab
Jamahiriya/Chad), Kasikili/Sedudu Islands (Botswana/Namibia), Armed
activities on the territory of the Congo (Democratic Republic of the
Congo v. Burundi), Land and Maritime Boundary between Cameroon and
Nigeria (Cameroon v. Nigeria), Sovereignty over Pulau Litigan and
Pulau Sipadan (Indonesia/Malaysia); Member of an arbitral tribunal of
the International Chamber of Commerce; Counsel and advocate, arbitral
tribunal, France/UNESCO; President of an arbitral tribunal established
within the framework of the European Development Fund; Judge ad hoc,
International Court of Justice, Maritime Delimitation in the Black Sea
(Romania v. Ukraine),Aerial Herbicide Spraying (Ecuador v. Colombia),
Territorial and Maritime Dispute (Nicaragua v. Colombia) and Temple of
Preah Vihear, Interpretation (Cambodia v. Thailand).

.

Source: http://www.itlos.org/index.php?id=83

MR.ALFRED H.A.SOONS, Studied law at Utrecht University, The
Netherlands, followed by postgraduate studies in international law at
the University of Washington (Seattle, USA) and Cambridge University
(UK). He obtained a PhD-degree at Utrecht University in 1982.
Professor of public international law and director of the Netherlands
Institute for the Law of the Sea (NILOS) at Utrecht University in
1987. Acted as counsel and arbitrator he has been involved in
international litigation at the International Court of Justice and
arbitral tribunals.

Source: http://untreaty.un.org/cod/avl/pdf/ls/Soons_bio.pdf

Judge Stanislaw Pawlak

Member of the Tribunal since 1 October 2005. Born: Kalisz, Poland, 27
September 1933; Education: Master of Law, University of Warsaw (1955);
Doctor of Law, University of Warsaw (1967); Doctor habilitated of
Political Science, University of Warsaw (1973). Professional
Experience: Legal Adviser and Analytic Officer, Polish delegation to
the Neutral Nations Supervisory Commission in Panmunjon, Korea
(1956–1958); Attaché and Second Secretary, Polish Embassy, Tokyo
(1958–1963); Senior Counsellor, Ministry of Foreign Affairs
(1963–1965, 1970–1972); Deputy Chief, Polish delegation to the
International Control Commission, Saigon, Viet Nam (1965–1966); First
Secretary, Polish Embassy to the United States of America (1967–1970);
Deputy Director, Foreign Minister’s Office (1973–1975); Polish
Representative to the UN General Assembly (1973–1978, 1983–1990,
2002–2005); Associate Professor of International Relations and
International Law, Faculty of Journalism and Political Science,
University of Warsaw (1974–2001); Director, Department of
International Organizations, Ministry of Foreign Affairs (1975–1978);
Ambassador, Canada (1978–1983); Director, Legal and Treaty Department,
Ministry of Foreign Affairs (1983–1986); Head of Polish delegation,
talks with the GDR delegation on the Agreement of 22 May 1989 on
delimitation of the maritime boundary with the GDR (1983–1988); Head
of Polish delegation, talks with the USSR delegation on the
delimitation of the Polish-Soviet sea border (1985); Chairman, Polish
delegation to the Vienna diplomatic conference which drew up the draft
Convention on the law of treaties between States and international
organizations and between international organizations (1986);
Director, International Organizations Department, Ministry of Foreign
Affairs (1986–1989); Ambassador and Permanent Representative of
Poland, UN, New York (1989–1991); Visiting Professor, various
universities in the United States and Syria (1990–2001); Chairman,
group of Polish experts, talks with the delegation of experts of the
Russian Federation and delegations of experts of other interested
States on protection and conservation of marine resources of the Sea
of Okhotsk (1992–1995); Delegate of Poland to the Steering Committee
for Human Rights (CDDH), Council of Europe (1992–1995);
Deputy-Director, Legal and Treaty Department, Ministry of Foreign
Affairs (1992–1996); Chairman, Polish Delegation to the International
Conference which drew up the 1994 Convention on Protection of
Fisheries in the Bering Sea (1993–1994); Chairman, Polish Delegation
to the UN Conference for the Agreement on Straddling Fish Stocks and
Highly Migratory Stocks (1993–1995); Ambassador, Syrian Arab Republic
and Hashemite Kingdom of Jordan (1996–2001); Adviser to the President
of the Republic of Poland (2001–2005); Titular Ambassador
(2002–present); Professor of International Relations and Public
International Law, Faculty of Journalism and Political Science,
University of Warsaw (2002–2011); Professor Emeritus, University of
Warsaw; President, thirteenth Meeting of States Parties to the
Convention (2003); Chairman, Polish delegations to the thirteenth and
fourteenth Meetings of States Parties to the Convention (2003–2004);
nominated to the List of Arbitrators under article 2 of annexes V and
VII to the Convention (2004); Professor and Dean, Faculty of Social
Science and Administration, Warsaw Academy of Computer Science and
Administration (2005–present).

Source: http://www.itlos.org/index.php?id=86

Judge Rüdiger Wolfrum

Member of the Tribunal since 1 October 1996; re-elected as from 1
October 1999 and 1 October 2008; Vice-President of the Tribunal
1996-1999; President of the Chamber for Marine Environment Disputes
1997-1999; President of the Tribunal 2005-2008; Member of the Special
Chamber formed to deal with the Case concerning the Conservation and
Sustainable Exploitation of Swordfish Stocks in the South-Eastern
Pacific Ocean 2000-2009

Education: First State Examination (1969); Second State Examination
(1973); Dr. jur., University of Bonn (1973); Habilitation, venia
legendi for National Public and International Public Law (1980).

Professional Experience: Assistant Professor, Institute of
International Law, University of Bonn (1973–1982); Research fellow,
Center for Oceans Law and Policy, University of Virginia (1977–1978);
Professor of National Public and International Public Law, University
of Mainz (1982); Professor, Chair of National Public and International
Public Law and Director, Institute of International Law, University of
Kiel (1982–1993); Vice-Rector, University of Kiel (1990–1993); Judge
at the Courts of Appeal for Administrative Matters, Lüneburg and
Schleswig (1986–1993); Director, Max Planck Institute for Comparative
Public Law and International Law, Heidelberg (1993–present);
Professor, Faculty of Law, University of Heidelberg (1993–present);
Vice-President, German Research Foundation (1996–2002); Honorary
Professor, Faculty of Law, University of Hamburg (2002–present);
Vice-President, Max Planck Society for the Advancement of Science
(2002–2005); Honorary Professor, Faculty of Law, University of
Pretoria; Member, Board of the Max Planck Foundation on International
Peace and Rule of Law (2012).

German delegation to: Third UN Conference on the Law of the Sea
(1980–1982), Preparatory Commission for the International Seabed
Authority and for the International Tribunal for the Law of the Sea
(1982), 4th Special Consultative Meeting concerning Antarctic mineral
resource activities (1983–1988); Chairman of the Legal Working Group
of the Antarctic Treaty Consultative Meetings preparing an Annex to
the Protocol on Environmental Protection to the Antarctic Treaty on
responsibility for environmental damage (1993–1998); UN Committee on
the Elimination of Racial Discrimination (1990–2000, re-elected 1994
and 1998); Founding Member of the Humanities Section of the German
Academy of Natural Sciences (Leopoldina) (2003); Board of Trustees of
the University of Hamburg (2003–present); Chairman, Board of
theDeutsche Gesellschaft für Völkerrecht (German Society for
International Law) (2005–2009); Institut de droit international
(2007–present).

Source: http://www.itlos.org/index.php?id=80

ITLOS and the Scarborough Shoal


Now that Secretary Albert Del Rosario shares my view that the Scarborough Shoal dispute should be submitted to the International Tribunal on the Law of the Sea (ITLOS) for peaceful resolution, the question is: how could the tribunal exercise jurisdiction without China giving its consent to do so?

The answer lies in the dispute settlement procedure of the United Nations Convention on the Law of the Seas (UNCLOS). These provisions are not only very long, but are recognized by scholars as amongst the most complicated provisions of the convention.

In a nutshell, the provisions on dispute settlement were made part of the “package deal” that state parties agreed to be bound when they became parties to the UNCLOS. In an effort to make all of the provisions of the UNCLOS a restatement of customary international law, each and every provision of the convention were agreed upon by states on the basis of consensus, and not just by a vote of the majority. Consequently, not only did the UNCLOS become the longest treaty to negotiate, it also became unique because of the rule that parties thereto may not make reservations on any of its provisions, including those dealing with dispute resolution.

The ITLOS jurisdiction was made compulsory and mandatory on all state parties in all disputes arising from the “”interpretation or application of any provision in the Convention”. Because state parties to the Convention, including the Philippines and China, have already referred to the ITLOS these types of disputes, China need not give its consent anew if we were to bring the issue of the exercise of sovereign rights in Scarborough shoal, Recto Bank and even parts of the Spratly’s to the tribunal.

Notice though that while Scarborough dispute, because it is one over fishing rights in maritime territory may- be brought to the ITLOS even without the consent of China, the Spratly’s controversy, on the other hand, would still require China’s consent. The reason is simple: because the Scarborough issue is purely a dispute involving water, it may be resolved wholly under the UNCLOS and as such, is an issue arising from an “interpretation” of the Convention’s provisions on sovereign rights. By definition, sovereign rights refer to the exclusive right of a state to explore and exploit all natural resources found in the waters of its Exclusive Economic Zone (EEZ), which is 200 nautical miles from the baseline of a country.

The issue in Scarborough is whether fishing by Chinese nationals there violates the sovereign right of the Philippines to exclusively engage in fishing in the area. A resolution of this issue would require the ITLOS to make a factual determination if the shoal is within the country’s EEZ and whether the shoal, as China claims, is an island. If it were indeed an island, yet an issue to be resolved would be whether it is entitled to other maritime zones or just a 12 nautical mile territorial sea. In either case, the primordial issue would be which nation should be allowed to fish in the area of the disputed shoal.

The Spratly’s dispute, on the other hand, is one that involves conflicting claims to both land and water territory. As such. UNCLOS cannot be the sole applicable law for the obvious reason that it deals only with maritime territories. The territorial dispute to the islands are subject to the rule they should pertain to the state that can prove a superior claim in terms of effectivities, or the exercise of the rights and obligations borne out of the exercise of sovereignty over disputed land territory. As such, disputes over islands are disputes beyond the “interpretation” of the UNCLOS rules on maritime territory. This is why China must consent anew to the exercise of jurisdiction by ITLOS in resolving the Spratly’s dispute. It is because conflicting claims to land territory do not involve issues of interpretation of the UNCLOS and are hence, are not subject to the mandatory and compulsory jurisdiction of the ITLOS.

Recent events have proven that we are no match to China in terms of military firepower. It was fool hardy for Filipino policy makers to think that BRP Gregorio Del Pilar, our one and only battleship, can drive Chinese fishermen away from the area. In any case, resort to the use of force to settle international disputes are prohibited by both the UN Charter and the UNCLOS. I am happy that Secretary Del Rosario has finally declared that instead of a military solution, we have opted for a peaceful and legal resolution of the dispute. In this manner, we may yet repeat the feat of a boy named David that slew a giant named Goliath.

(Published in the Manila Standard Today newspaper on /2012/April/19)