Provisional measures


Philippine policy makers have confirmed that despite the pendency of its arbitration proceedings under the binding and compulsory dispute settlement procedure of the UN Convention on the Law of the Sea, China is hastening the building of an artificial island in Mabini reef, as well as expanding its existing artificial island in Fiery Reef.

Contemporaneous with these construction, China has been more aggressive in exercising its sovereign right to explore for oil in the disputed area leading to recent boat ramming incidents resulting in at least 10 Vietnamese being wounded. It also issued what appears to be a demand letter for the Philippines to leave all of the disputed islands and waters in the Spratlys, as well as from Panatag shoal, the latter being separate and distinct form the Spratlys.

I have written before that China’s acts are consistent with its published defense policy, which currently seeks to achieve “sea-denial capability” in what it considers as its coastal waters, the waters within the so-called nine-dash lines. Clearly, one must commend the Chinese—albeit bereft of legal merits—for their consistency in both policy formulation and implementation.

Given recent Chinese actions and the fact that contrary to the best hope of Philippine policy makers that US President Obama’s visit to the region will have a deterrent effect on Chinese expansionism, these recent events validate China’s design to expel all other claimant countries from the disputed territory on or before 2020, which is only six years away. Given this reality, it becomes imperative for the Philippines to prompt the UNCLOS ad hoc Tribunal to hasten the process of its ruling particularly on the validity of the nine-dash lines, described by a Japanese academic recently descried as a prayer for “declaration of rights” rather than an exercise of maritime delimitation, the latter being covered by a Chinese reservation to the jurisdiction of the UNCLOS dispute settlement procedure.

One manner by which the Philippines could utilize the existing arbitration as a means to curtail China from its expansionist desires is through a remedy known as “provisional remedy” provided under Art. 290 (1) of the UNCLOS. Said provision reads: “If a dispute has been duly submitted to a court or tribunal which considers that prima facie it has jurisdiction under this Part or Part XI, section 5, the court or tribunal may prescribe any provisional measures which it considers appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to the environment, pending the final decision”.

Case law is replete with instances when Tribunals deciding on issues involving the Law of the Sea have resorted to provisional measures. For instance, the ITLOS, prior to the formation of an Hoc panel headed by Filipino Florentino Feliciano in the Southern Blue Fin Tuna case, issued a provisional order against Japan from further fishing of blue fin tuna in the pacific pending resolution of the arbitration on the merits. Likewise, in MV Saga No. 2, ITLOS issued provisional measures for the immediate release of the vessel and its crew. In the latest case between Netherlands and Russia involving the arrest and charging of Greenpeace activists charged by Russia with piracy, the ITLOS also issued provisional orders for the immediate release of the activists.

The literal provisions of Art 290 of the UNCLOS on provisional remedies require only two elements for the issuance of a provisional order, to wit; prima facie determination of subject matter; two, necessity of preserving rights of the parties pending the final decision.

I suppose the reason why the Philippine legal panel did not ask for provisional measures from the start of its claim is because of China’s specific reservations to the dispute settlement of the UNCLOS which may come to play where a provisional order is asked of the tribunal. Specifically, this relates to the exercise of law enforcement activities arising from the exercise of sovereign rights. Note that the arbitration was finally resorted to by the Philippines after its fishermen were literally barred from fishing in the area of the Panatag shoal. Fishing in the Exclusive Economic Zone is an exercise of sovereign rights, which relates to the exclusive right to explore and exploit natural resources found in the EEZ. Had the Philippines asked at the onset for provisional remedy against China barring Filipino fishermen from fishing in Panatag, the controversy would have fallen on a subject matter expressly reserved by China from the jurisdiction of the tribunal: the sovereign right to fish.

But China’s recent acts have gone beyond law enforcement activities relating to sovereign rights. The building of artificial islands in low tide elevations, such as Mabini reef and Fiery Cross reef, are actual exercise of sovereign rights and do not relate to law enforcement activities. Likewise, its recent use of and resort to the threat to the use of force against the Philippines and Vietnam, coupled with its demand for both claimants to leave the area under their possession, are clear exercise of sovereignty and do not relate to the subject matter reservation of China. Moreover, China’s acts, because they are done pursuant to its disputed nine-dash lines, may be challenged on the basis that the Philippine (would be) prayer for provisional measures, and its prayer on the merits, call for declaration of rights and not maritime delimitation, the latter also excluded by China in its reservations to the UNCLOS dispute settlement procedure.

The bottom line is this: when the UNCLOS required all parties thereto to bring all questions of interpretation and application to the dispute settlement of the Convention, it could not have contemplated that state parties who opted not to participate in these proceedings should be allowed to violate provision of the Convention with impunity more so when they choose not to participate in the compulsory proceedings. Given China’s recent actuations, it’s high time that it is reigned in through a provisional measure.

China is challenging UNCLOS


Following is an excerpt from my discussion in the recently concluded 5th Annual Meeting of the Japan Society of International Law held last June 15, 2014 at Chuo University in Tokyo.

China’s snub of the Philippine arbitral claim on the West Philippine Sea and its slew of building projects on disputed reefs in the area are aserious and belligerent violations of the UN Convention on the Law of the Sea (UNCLOS), to which it is a party.

Its refusal to participate in the arbitration and its unilateral acts in building artificial islands in the disputed maritime area of the Spratlys constitute a serious breach of the UNCLOS. As a party to the Convention, China agreed to refer all matters involving interpretation and application of the UNCLOS to the compulsory and binding dispute settlement procedure of the Convention.

The international community took a very long time to agree on the provisions of UNCLOS because all countries of the world wanted the Convention to be the “constitution for the seas”. By prohibiting reservations and by adopting all provision on the basis of consensus, it was the intention of the world community to do away with the use of force and unilateral acts in the resolution of all disputes arising from maritime territory.

The view expressed recently by Judge Xue Hanquin, the Chinese Judge in the International Court of Justice, that states that made declarations when they ratified the UNCLOS, China included, are “deemed to have opted out of the dispute settlement procedure of the Convention” is erroneous. Proof of this is that China subsequently made reservations only as to specific subject matters from the jurisdiction of the dispute settlement procedures. This proves that China agreed to be bound by the procedure and hence, it is under a very clear obligation to participate in the proceedings, if only to dispute the jurisdiction of the Tribunal.

More worrisome is China’s recent resort to the use of force in bolstering its claim to the disputed territories.

It has been reported recently that China has been building artificial islands in Johnson South Reef and expanding its artificial island in Fiery Cross reef, and deploying its naval forces to ward off any opposition.

These construction are happening in the face of China’s snub of the arbitral proceedings which precisely impugns China’s legal rights to do so. Clearly, China’s conduct is not only illegal as prohibited use of force, but is also contemptous of the proceedings.

The Philippines initiated proceedings under the UNCLOS dispute settlement procedure to declare that China’s nine-dash lines is illegal since it is not sanctioned by the UNCLOS. The Philippine claim also asked the Hague-based arbitral tribunal that four “low-water elevations,” so-called because they are only visible during low tide, and where China has built artificial islands, be declared as part of the continental shelf of the Philippines, and that the waters outside of the 12 nautical miles of Panatag shoal be declared as part of the Philippine Exclusive Economic Zone.

China’s claim is that the waters within the nine-dash lines are generated by land territory and hence, the controversy cannot be resolved under the UNCLOS. But clearly, the three specific prayers of the Philippines involve only issues of interpretation and application of specific provisions to UNCLOS relating to internal waters, territorial sea, Exclusive Economic Zones, islands, and low tide elevations. While the Spratlys dispute without a doubt also involves land territory, this is not the subject of the Philippines’ claim.

The Chinese academic in the conference, Prof. Zhang Xinjun of Tsinghua University, characterized the Philippine arbitral claim as a “mixed claim” because it involves both claims to sovereignty arising from land territory and not just purely maritime territory. This, he explained, is why the UNCLOS arbitral tribunal lacks jurisdiction over the Philippine claim. He likened the Philippine proceeding to that initiated by Mauritius against the United Kingdom. In this case, which is also pending, the UK has argued that the dispute settlement proceedings of UNCLOS should not apply because the disputed maritime territory are generated by land territory.

The Japanese academic, Prof. Nishimoto Kentaro of Tohoku University, on the other hand, expressed reservations whether the Philippines could prevail in impugning China’s title to all four islands where it has built artificial islands, two of which the Philippines claims, should form part of its continental shelf. The Japanese academic observed that since two of these islands are within the 200 nautical miles of Ito Iba Island, currently under the control of Taiwan, these two may not be declared as part of the international sea bed.

He supported, however, the Philippines’ position on the nine-dash lines arguing that in seeking a declaration of nullity of these lines, the Philippines was not engaged in maritime delimitation, but in an action for a declaration of rights, which is an issue of interpretation and application of the UNCLOS. He characterized the Philippines position against the Nine-Dash lines as “very strong”.

Japan is also engaged in its own territorial dispute with China over Senkaku Island.

4

The Chinese view on the Philippine arbitration on the West Philippine Sea


Judge Xue

Judge Xue

Participants to the recently concluded 4th biennial Conference of the Asian Society of International Law in New Delhi, India last November 15, 2017 heard for the first time the Chinese position on the Philippine arbitral claim on the West Philippines Sea dispute.

In the said conference, I delivered a paper entitled “What next after the Chinese Snub? Examining the UNCLOS dispute settlement procedure: Philippines vs. China”. My paper argued that the issues that the Philippines brought to the arbitral claims, to wit, the validity of China’s nine-dash lines, whether certain low-tide elevations where China has built installations pertain to the Philippines as part of its continental shelf; and whether the waters surrounding the territorial sea of Panatag form part of the Philippines EEZ are issues of interpretation of specific provisions of the UNCLOS and hence, were within the compulsory and binding dispute settlement procedure of the UNCLOS.

Further, while I acknowledged that China’s reservations on maritime delimitation and law enforcement activities in the exercise of sovereign rights were more challenging obstacles to hurdle, they were not insurmountable because the language of the Philippine claim does not call for a ruling involving any of the reservations made by China.

My paper assumed that the Tribunal’s jurisdiction over China as party to the proceedings was well settled. This is because China, as a party to the UNCLOS, has accepted the dispute settlement procedure of the Convention, together with all the provisions of the Convention which were all adopted on the basis of consensus.

The Chinese Judge to the International Court of Justice, Judge Xue Hanqin, was present in the conference. Judge Xue is the highest woman official in China prior to her election to the Court. Previously, she served as chief legal adviser and head of the treaties office of the Chinese Foreign Ministry and Ambassador to the Netherlands and Asean. She is said to have been groomed to be part of the Central Bureau of China’s People’s Party had she not opted to join the ICJ. While Judge Xue and I have been good friends, having served together in the Executive Council of the Asian Society of International Law for the past 6 years, I knew it would still be awkward to have her listening to my presentation.

But the most unusual thing happened after my 25-minute presentation. Judge Xue, explaining that since she was the only Chinese present in the conference because the Chinese delegates were denied visas by Indian authorities, took the floor for the next 20 minutes and for the first time expounded extensively on the Chinese position on the Philippine arbitral claim. This was unusual because magistrates, be it from domestic or international courts, will normally refuse to comment on an actual dispute, which could come to their court for adjudication. This certainly applies to the West Philippines Sea dispute.

Judge Xue raised four crucial points. Her first was that the Philippine claim involved territorial claims which is outside the purview of UNCLOS. She added though that “since the end of World War II, the international community, has acknowledged the existence of China’s nine-dash lines with no country ever questioning it until oil resources were discovered in the area.” Without expounding on the nature of the lines, she claimed that it is “not considered as a boundary line” and they “have not affected international navigation in the area.” She claimed that there was “”no international law applied in this regard to the region.”

Second, Judge Xue argued that 40 countries, including China, made declarations to the dispute settlement procedure of the UNCLOS. According to her, this means “these 40 states have not accepted the dispute settlement of the Convention as being compulsory”. She said that “when countries joined UNCLOS I, they are not deemed to have given up all their previous territorial claims.”

Third, she said that as China’s first Ambassador to Asean, she knows that the countries of Asean and China have agreed to a code of conduct relating to the South China Sea. Under this code, disputes must be resolved through negotiations and not through arbitration. She claimed that this obligation was “a substantive obligation binding on all claimant state.”

Fourth, Judge Xue explained that China opted out of the arbitration because “no country can fail to see the design” of the Philippine claim which she described as having “mixed up jurisdiction with the merits.”

She opined that the Philippines’ resort to arbitration complicated what she described as an “impressive process between Asean and China”. What the Philippine did “was to begin with the “complicated part of the South China Sea dispute” rather then with easier ones such as “disaster management.” This later pronouncement all but confirmed that the very limited humanitarian assistance extended to the Philippines by China in the aftermath of Yolanda was because of the Philippine resort to arbitration.

Judge Xue ended her intervention by exhorting the Philippines to consider joint use of the disputed waters, a matter that according to her has been successfully resorted to by China and Vietnam.

While Judge Xue’s intervention made our panel, without a doubt, the most memorable exchange in the conference, her declarations provided us with many answers that China has refused to give us.

We have Judge Xue to thank for this.

Judge Xue asked that I post this disclaimer: “Judge Xue Hanqin wishes to reiterate that she participated in the 4th Biennial Conference of the Asian Society of International Law held in New Delhi from 14-16 November 2013 in her personal capacity as a member of the said Society and her remarks in response to Professor Harry Roques presentation at the panel discussion on the South China Sea are solely of her own and do not represent in any way the official position ofChina on the issue. She also wishes to point out that her remarks are not fully and accurately reflected in Blog articles.”