UN Law of the Sea Arbitration Tribunal Sinks the Rule
UN Law of the Sea Arbitration Tribunal Sinks the Rule of Law?Joseph A. KleinJoseph A. KleinJoseph A. Klein The international arbitration tribunal, constituted under Annex VII to the United Nations Convention on the Law of the Sea (“UNCLOS”), issued its final Award on July 12th in the so-called “compulsory” arbitration instituted by the Republic of the Philippines against the People’s Republic of China. The Philippines had sought rulings on a number of issues, including the source of the parties’ rights and obligations in the South China Sea and the effect of UNCLOS on China’s claims to historic rights within its claimed ‘nine-dash line.’ The tribunal’s decision found in the Philippines’ favor on these two key issues, and most others that had been raised by the Philippines. The tribunal’s decision on the merits of the case followed its jurisdictional decision last October to hear the case in the first place. It had rejected China’s exercise of its right under UNCLOS to opt-out of the arbitration. China continues to reject the tribunal’s findings on several grounds, including China’s contention that the heart of its dispute with the Philippines was over competing sovereign claims to territory that was beyond the authority of the tribunal to resolve. We often hear sanctimonious talk about the importance of abiding by the rule of international law and respecting the decisions of duly constituted international bodies. However, what happens if an international body itself goes astray and exceeds its legal authority in contravention of national sovereignty? That is precisely what happened when the UNCLOS arbitration tribunal disingenuously turned what essentially was a territorial sovereignty dispute between the Philippines and China into one solely about ocean rights, and ignored the limits on its authority set by UNCLOS itself. Even the spokesperson for the UN Secretary General declined to endorse the legal findings of the tribunal in applying the terms of the UN treaty to the dispute before it. When asked whether “every concerned” country – presumably, including China - should be “advised to abide by the decision by the Permanent Court of Arbitration in The Hague,” he responded that “the UN doesn’t have a position on the legal and procedural merits of the case or on the disputed claims.” As I discussed in a previous article, the tribunal should not have taken the Philippines’ case in the first place. Article 298 of UNCLOS explicitly gives UNCLOS state parties the right to opt out of compulsory arbitration for disputes concerning, among other things, the interpretation or application of certain treaty provisions “relating to sea boundary delimitations, or those involving historic bays or titles.” Both China and the Philippines have referenced their respective claims of sovereignty and Article 298 in their declarations or statements submitted upon or following their ratification of UNCLOS. Although China acted within its rights to reject the jurisdiction of the tribunal, based on its exercise of its Article 298 opt-out provision, the tribunal acted like many transnational bureaucracies do in seeking to expand its authority over sovereign states. It decided to accept jurisdiction over what is essentially a territorial dispute, including a sea boundary delimitation dimension. Now the tribunal’s final Award in favor of the Philippines compounds its original jurisdictional error. The tribunal’s decision on the merits of this case sinks under the weight of its fallacious assumptions of law and fact. The tribunal’s lengthy decision attempts to rationalize its refusal to acknowledge the relevance or legitimacy of China’s historical claims that predate UNCLOS. The tribunal concluded that, to the extent China had any historic rights to resources in the waters of the South China Sea, such rights were extinguished if incompatible with the exclusive economic zones provided for in UNCLOS. The tribunal has no such general authority to retroactively extinguish historical rights claims of sovereign nations that pre-existed UNCLOS. The Vienna Convention on the Law of Treaties lays out as a matter of basic international law the presumption against retroactivity in applying the terms of a treaty. It states that “Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place…before the date of the entry into force of the treaty with respect to that party.” The text of UNCLOS itself does not express any intention to reverse the presumption of non-retroactivity. In fact, it explicitly recognizes the continuing validity of historical claims. There is no other credible basis on which the tribunal can rely to establish an intention for UNCLOS to extinguish a member state’s historical rights in the sweeping fashion that the tribunal suggests. China’s historical claims, going back many centuries, are well recorded both in Chinese and non-Chinese documents. China has consistently exercised sovereignty over the islands and reefs as well as the surrounding waters in the South China Sea, which the Philippines has only lately disputed. In entering UNCLOS as a state party, China made clear that it was not waiving its pre-existing claims to land and maritime territorial rights, which it believed to be preserved under customary international law, within demarcated areas of the semi-enclosed waters of the South China Sea. Nearly seven decades ago – following the Republic of China’s reassertion of control over the islands after Japan’s surrender in World War II, without any apparent objection from the United States or the newly independent Philippines – the Republic of China published a map depicting segments (dashes) encircling waters, islands, and other features of the South China Sea as to which China has asserted historic territorial and maritime rights. Notably, this occurred more than two decades prior to the discovery of any major oil and gas reserves in the South China Sea. With some slight revisions, the People’s Republic of China has since re-published this map, showing its ‘nine-dash line,’ to reinforce China’s continued assertion of its sovereign rights.Continued below... The Philippines has tried to change the facts on the ground and in the water, so to speak, in order to justify its grab for the rich oil and gas resources in the area after they had been discovered in the 1970’s. After fallaciously concluding that UNCLOS extinguished any historic rights to resources in the waters of the South China Sea if incompatible with the exclusive economic zones provided for in UNCLOS, the tribunal went back on its own journey through time anyway. It claimed that prior to UNCLOS, the waters of the South China Sea beyond the territorial sea were legally part of the high seas, in which vessels from any state could freely navigate and fish. Therefore, the tribunal declared, any historical navigation and fishing by China in the waters of the South China Sea represented only the exercise of the same “high seas” freedoms shared by other countries. However, the South China Sea itself is not purely the “high seas.” The South China Sea is a semi-closed sea, adjacent to the open ocean, extending from northeast to southwest connected by narrow straits and waterways with the Pacific Ocean to the east and the Indian Ocean to the west. It was partially enclosed by islands and archipelagos before UNCLOS came into effect and remains so today. UNCLOS has a separate Part IX entitled “Enclosed Or Semi-Enclosed Seas,” which it defines as “a gulf, basin or sea surrounded by two or more States and connected to another sea or the ocean by a narrow outlet or consisting entirely or primarily of the territorial seas and exclusive economic zones of two or more coastal States.” The arbitration tribunal was mistaken in characterizing China’s actions in the South China Sea as nothing more than exercising “high seas” freedoms that granted China no special historical rights. In fact, China is the only state that has such a long, consistent record of exercising sovereign control over the South China Seas Islands as a whole, constituting a single archipelago as defined in Article 46(b) of UNCLOS, as well as its component parts, in the semi-enclosed waters of the South China Sea. The tribunal then compounded this grievous error with a preposterous conclusion. It claimed that, because it had found “no evidence that China had historically exercised exclusive control over the waters of the South China Sea or prevented other States from exploiting their resources,” there was no legal basis for China to claim historic rights to resources in the sea areas falling within the ‘nine- dash line.’ In other words, the tribunal is in effect saying that China’s decision not to take unilateral action to block other nations from sharing in the waters or their resources of the South China Sea for the purpose of enforcing its “exclusive control” means that it automatically forfeited any sovereign claims. Such a bizarre conclusion would lead to the exacerbation of tensions among neighboring countries. It runs completely counter to two core goals set forth in the United Nations Charter - promoting “friendly relations among nations” and “international cooperation.” The tribunal is punishing China for having cooperated with other countries bordering the semi-enclosed South China Sea. Such cooperation is what Article 123 of UNCLOS says all such countries should do. The decisions of the UNCLOS “compulsory” arbitration tribunal are not enforceable in the conventional legal sense. Their weight depends entirely on the moral force behind the tribunal’s decisions and the influence they may have in moving the parties to reach a diplomatic resolution. Unfortunately, the UNCLOS arbitration tribunal in this case acted irresponsibly by reaching a winner-take-all result that may only serve to place a diplomatic solution further out of reach.