1 / 23

The South China Sea Arbitration Award: Rule of Law and Jurisdiction Concerns

This article discusses the rule of law concerns and jurisdiction issues in the South China Sea Arbitration Award. It explores the concept of meaningful rule of law and the importance of judicial settlement in international disputes. The article also examines the non-appearance of parties and its implications on the proceedings. Additionally, it analyzes the jurisdictional system of UNCLOS and the importance of peaceful negotiations in resolving territorial and jurisdictional disputes.

mohammedd
Download Presentation

The South China Sea Arbitration Award: Rule of Law and Jurisdiction Concerns

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. The South China Sea Arbitration Award on Jurisdiction and Admissibility and Rule of Law Concerns Email: sienho@chinesejil.org Homepage: www.sienhoyee.org Sienho YeeChangjiang Xuezhe Professor of International Law, and Chief Expert Wuhan University Institute of Boundary and Ocean Studies and Institute of International Law Editor-in-Chief, Chinese Journal of International Law The Hague, 26 June 2016

  2. Rule of law: Superficial rule of law or meaningful rule of law (or better yet, Perfect Rule of Law, as I have argued elsewhere). My presentation is an effort to promote meaningful rule of law, with which we should be content probably, and leave the perfect rule of law for future discussion. 2) Judicial settlement: Free Zones of Upper Savoy and the District of Gex, P.C.I.J., Series A, No. 22, p. 13: “the judicial settlement of international disputes, with a view to which the Court has been established, is simply an alternative to the direct and friendly settlement of such disputes between the Parties; as consequently it is for the Court to facilitate, so far as is compatible with its Statute, such direct and friendly settlement ...” 3) Non-appearance: Not unusual; In 1984, 12 cases (1: Belgium v. Republic of China), plus recent case: Arctic Sunrise, then China; Pakistan: Preliminary Objections, but did not appear in court. Sovereign decision not to appear. Rules exist to provide for such a situation: no punishment for the non-app.

  3. Introduction 1. Non-participation: Article 9, Annex VII If one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case, the other party may request the tribunal to continue the proceedings and to make its award. Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings. Before making its award, the arbitral tribunal must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law. 2. Award, para. 392: The Tribunal considers that it is likewise incumbent on it to address any issue of jurisdiction not raised by China—and to satisfy itself as to whether it has jurisdiction over the dispute—in this preliminary phase to the greatest extent possible. 3. Justice must not only be done but seen done. 4. Jurisdictional system: UNCLOS Part XV, sections 1; 2; 3.

  4. Intro 4. Jurisdictional system: UNCLOS Part XV, sections 1; 2; 3. Article 281(1). If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed to seek settlement of the dispute by a peaceful means of their own choice, the procedures provided for in this Part apply only where no settlement has been reached by recourse to such means and the agreement between the parties does not exclude any further procedure. Article 298(1). When signing, ratifying or acceding to this Convention or at any time thereafter, a State may, without prejudice to the obligations arising under section 1, declare in writing that it does not accept any one or more of the procedures provided for in section 2 with respect to one or more of the following categories of disputes: • (a) (i) disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations, or those involving historic bays or titles, provided that

  5. DOC 4. The Parties concerned undertake to resolve their territorial and jurisdictional disputes by peaceful means, without resorting to the threat or use of force, through friendly consultations and negotiations by sovereign states directly concerned, in accordance with […] Joint Statement: Philippines and China, 1995 Point 3: “a gradual and progressive process of cooperation shall be adopted with a view to eventually negotiating a settlement of the bilateral disputes” Point 8: “[d]isputes shall be settled by the countries directly concerned without prejudice to the freedom of navigation in the South China Sea” 2009 Viet Nam Note Verbale: all disputes relating to the South China Sea “must be settled through peaceful negotiations, in accordance with international law, especially [the 1982 UNCLOS and the DOC]”

  6. Geography

  7. Philippines’ main claims relate to: • China’s overall Entitlements: cannot be more than what UNCLOS gives (and also: 9 dash line cannot be a basis for entitlement ); 2) Definition/qualification of some maritime features; and consequences: entitle- ment and more 3) Various activities. Award: for Phi; joined to …

  8. Rule of law concerns: 1 (O and O); 2: content of the Award Organizational & operational matters Judge Thomas A. Mensah (Presiding Arbitrator) Judge Jean-Pierre Cot (France) Judge Stanislaw Pawlak (Poland) Professor Alfred H.A. Soons (The Netherlands) Judge Rüdiger Wolfrum (Germany) Among the 5: 4 are EU “citizens”; 2 are from former colonial administrators in parts of the South China Sea area: France and The Netherlands. Non-participation of a party gives the world no right to constitute such a tribunal. Usually: 1) participant of a national of the party: to ensure no conduct unbecoming judicial character should take place; proper attention to the arguments of the parties. 2) representation of the main forms of civilization and principal legal systems

  9. Organizational and Operational matters: All the fees of the arbitrators are being paid by the Philippines. Iraq-Kuwait Boundary Commission: after Iraq decided not to continue participation, payment arrangements: by the UNSC. The effect of this payment only made by the Philippines? Super speed in such a complex case: Dec. 7, 2014, China position paper published; July 1-13, 2015, Hearing on jurisdiction; Oct. 29, 2015, Award on jurisdiction and admissibility: Para.390 A State “should not have to give an account of itself on issues of merits before a tribunal which lacks jurisdiction in the matter, or whose jurisdiction has not yet been established.” Nov. 25-30, 2015: hearing on the merits. Gossips on the imminent coming of the merits decision …

  10. Issues relating to the content of the Award Impression of an overwhelming piece of work, consisting of 151 pages, and running on a structured series of trilogies—China’s position, the Philippines’ position, the Tribunal’s decision. On closer examination, the award gives rise to serious rule of law concerns. There are many instances of this in the Award, but I will deal with only a few here. First, a summary of the main arguments of China: • Territorial matters in essence; or real dispute is about territorial matters. • Agreement choosing negotiation, excluding other means. 3) Assuming …, the subject matter forms an inherent part of maritime delimitation between the two countries, and excluded by the 2006 declaration 4) As a result, China's rejection of and non-participation in the present arbitration stand on solid ground in international law.

  11. Failure to take adequate cognizance of China arguments One of the most important rule of law consideration: properly taken cognizance of the arguments of all parties. The award simply ignores some important arguments without giving proper reasons:  a. Agreement—DOC and many bilateral instruments together formed an agreement choosing negotiation only, but this was not addressed. In contrast, the T analyzed the instrts separately.  b. Features forming the archipelagos in the South China Sea should be recognized as a unit for sovereignty and delimitation purposes. This was not dealt with. In contrast, the tribunal dealt with the features separately, as single features. * “Nansha Islands is”, but the tribunal changed “is” to “[are]” (paras.160; 169) c. Whether low-tide elevations are subject to appropriation is a territorial sovereignty question.

  12. Failure to give effect to China arguments The rule of law requires not only that a party’s arguments be taken cognizance of, but also be given proper effect in the Tribunal’s decision. The Tribunal summarizes China’s arguments in some places, but then in the “Tribunal’s decision” section, China’s arguments disappear, meaning, no trace of any effect of those arguments can be found. For example, there was a 1995 joint declaration by the two States on taking cooperative measures, with a view to • “eventually negotiating a settlement of the bilateral disputes”. China considered this to be choosing negotiation as the only means of dispute settlement. This argument was summarized by the Tribunal but not given effect in its decision.

  13. Failure to complete the analysis and application of a certain concept or line of reasoning: Agreement: • Tribunal said: political; aspirational. • The tribunal did not do any further analysis. • According to the case law of the International Court of Justice, this of course, does not prevent some of the commitments stated therein to be of a binding nature: • Clear; • Specific

  14. Failure to complete the analysis and application of a certain concept or line of reasoning: Territorial sovereignty matter The Tribunal itself creates two criteria for the determination that the Philippines’ Submissions could be understood to relate to the issue of sovereignty, i.e. “(a) the resolution of the Philippines’ claims would require the Tribunal to first render a decision on sovereignty, either expressly or implicitly; or (b) the actual objective of the Philippines’ claims was to advance its position in the Parties’ dispute over sovereignty”, or to “detract[] from either Party’s claims to land sovereignty in the South China Sea” (Award, para.153). • But the Tribunal did not analyse why taking features out from an archipelago (Nansha; Zhongsha) would not dismember it and detract from China’s claims to land sovereignty; • Neither did the tribunal analyze why the Philippines’s low-tide elevations claims would not detract from China’s claims to land sovereignty;.

  15. Failure to complete analysis and application of a certain concept or line of reasoning: Entitlement and delimitation: distinct but it does not explain how it is distinct in this case; nor does it address the effect of an entitlement decision on delimitation. The two are not distinct and the effect of one on the other are clear in this case if we consider: • Delimitation geographical framework • Delimitation situation

  16. Failure to respect consistency Consistency as a rule of law virtue is clear. Usually a court follows directly relevant precedents in its own case law as well as that of other courts, unless there are very particular reasons or compelling reasons not to do so, as the ICJ’s examination of the ICTY precedents makes clear. This applies also to individual members who change their positions. Here there are two precedents and two attitudes: Southern Bluefin Tuna Arbitration: no need for explicit excl. ITLOS: LOUISA case on the interpretation of the term “concerning”. Arbitrator Soons Arbitrator: Cot My students asked me whether the arbitral tribunal and arbitrator Soons were in the legal profession. I found it difficult to answer that question.

  17. From ITLOS, M/V “LOUISA” Case, interpreting “concerning” in the declaration under Article 287: [T]he use of the term “concerning” in the declaration indicates that the declaration does not extend only to articles which expressly contain the word “arrest” or “detention” but to any provision of the Convention having a bearing on the arrest or detention of vessels. This interpretation is reinforced by taking into account the intention of Saint Vincent and the Grenadines at the time it made the declaration, as evidenced by the submissions made in the Application. From these submissions, it becomes clear that the declaration of Saint Vincent and the Grenadines was meant to cover all claims connected with the arrest or detention of its vessels. On the basis of the foregoing, the Tribunal concludes that the narrow interpretation of the declaration of Saint Vincent and the Grenadines as advanced by Spain is not tenable.

  18. Kwiatkowska and Soons,1990, p.181: [T]he definition of rocks and their entitlement to maritime spaces, like the definition and entitlement of islands in general, forms an inherent part of maritime boundary delimitation between opposite/adjacent States and, as State practice clearly evidences, these issues will not give rise to controversies unless such delimitation is in dispute.

  19. Kwiatkowska and Soons, 2011, p.114: In fact, with a single exception of Okinotorishima, the issue of eventual application of Article 121(3) does not arise in practice unless in the context of specific maritime delimitations, often intertwined with disputes over sovereignty, such as those involving Serpents Island […].

  20. Kwiatkowska and Soons, 2011, p.115: A complex maritime delimitation-related role took throughout the whole UNCLOS III a clear precedence over the original purpose of Article 121(3) envisaged by Ambassador Arvid Pardo (Malta) in 1967 of ensuring that insular features located far from their governing states—which he exemplified by such undoubtedly full Article 121(1)-(2) islands as Guam (United States), the Azores Archipelago (Portugal), and Easter Island (Chile), along with such potential Article 121(3) rock as Clipperton Island—could not generate broad maritime zones of these states in the middle of the oceans at the expense of International Seabed Area.

  21. Conclusions • The organizational and operational aspects of the arbitration are unfair to China and destroy the judicial or arbitral character of its function. • The tribunal was wrong on the jurisdictional issues in the arbitration. • The tribunal only paid lip service to Article 9 of Annex VII, on the duty of the Tribunal in the case of non-participation of a party. • The tribunal was disingenuous when it said what it said in para. 392, but in fact did not take cognizance of many of China’s arguments, did not give effect to China’s arguments, did not complete the analysis of relevant concepts and the deployment of relevant lines of reasoning, did not respect consistency, did not take notice of or respect directly applicable precedents, with one arbitrator ignoring his own earlier directly contrary position. Another Arbitrator did more or less the same. • In light of the above, the Tribunal violates important rule of law requirements.

  22. Conclusions UN Drafting Situation: Question from Belgium It is to be understood, of course, that if an interpretation made by an organ of the Organization or by a committee of jurists is not generally acceptable it will be without binding force. In such circumstances, or in cases where it is desired to establish an authoritative interpretation as a precedent for the future, it may be necessary to embody the interpretation in an amendment to the Charter. This may always be accompanied by recourse to the procedure provided for amendment.

  23. Thank you. Any questions: Email: sienho@chinesejil.org Homepage: www.sienhoyee.org

More Related