Dear all
Settlement of disputes involving interpretation and application of the UNCLOS is provided in Part XV of the 1982 Convention. It asks State Parties to settle any disputes between them, by “peaceful means". States are basically free to choose the procedural means to settle as in Article 287 "at any time", the parties are obliged under article 283 to “exchange views”.
I like to discuss the followings regarding to Philippine's choice :
1. Philippines choice of Arbitration is arbitrary.
The Philippines took the view that “UNCLOS supersedes and nullifies any ‘historic rights’ that may have existed prior to the Convention”, and thus requested the Tribunal in terms of its Submissions 1 and 2 to declare that China is not entitled to claim rights “beyond those permitted” by the Convention.57 It is of the view that “the Philippines’ Submissions 3, 4, 6, and 7 reflect a dispute concerning the status of the maritime features and the source of maritime entitlements in the South China Sea”.58
China considered The South China Sea as a contiguous zone together with the sovereignty of the Islands/ Rock, arguing that according to international law, the entity that enjoys maritime entitlements is the State that owns maritime features, rather than the maritime features themselves.
Some precedence of disputes are noted here , the Tribunal in the 2006 arbitral award in Barbados v. Trinidad and Tobagofound that negotiations related to the delimitation of the exclusive economic zone and the continental shelf over the course of roughly 25 years that failed to result in an agreement between the States ; in the maritime boundary delimitation in the Bay of Bengal between Bangladesh and India, the parties were engaged in negotiations for nearly 40 years before the matter got resolved through arbitration. Under the circumstances, one would think it is not only open but would have been appropriate for the Tribunal to have insisted that the Parties actually engage in negotiations over the proper subject matter of the dispute including the various Submissions made by the Philippines, even if it felt that there is no immediate bar for exercising its jurisdiction.42
It is apt, in this connection, to recall the observation of the International Court of Justice in the North Sea Continental Shelf Cases (1969). In that landmark case, the Court noted that:
“the parties are under an obligation to enter into negotiations with a view to arriving at an agreement, and not merely to go through a formal process of negotiation as a sort of prior condition for the automatic application of a certain method of delimitation in the absence of agreement; they are under an obligation so to conduct themselves that the negotiations are meaningful, which will not be the case when either of them insists upon its own position without contemplating any modification of it […] 45
The arguments of the Philippines on jurisdiction turn on two essential assumptions. One that holds that none of the 750 maritime features in the Scarborough Shoal and the Spratly features are capable of “generating an EEZ and continental shelf entitlement”, suggesting thereby that they are “rocks” and low tide elevations or other insular features not amounting to land or islands, capable of appropriation by way of assertion of “historic rights”.62 The other assumption is that Philippines is entitled to 200 mile EEZ and continental shelf and most of these features fall within its EEZ or the continental shelf which do not have any potential overlap with the true maritime entitlements of China under the same UNCLOS. Both assumptions appears unrealistic in reality.
The South China Sea Arbitration (The Philippines v. China): Assessment of the Award on Jurisdiction and Admissibility
http://chinesejil.oxfordjournals.org/content/early/2016/06/21/chinesejil.jmw019.full
2. Tribunal has not proved its authority on additional meaning of island / Rock under Article 121
PCA has gone through the details of the numerous reefs and has differentiated the High and low tide feature for the purposes of Article 121. PCA took the maritime entitlements as a common rights of all States and not a sovereignty issue which would be correct in the public sea with no sovereignty argument. While PCA accepts that the travaux préparatoires of Article 121( 3) are an imperfect guide in interpreting the meaning of that Article, PCA has added meaning to rocks/ island and that is different from the ordinary meaning but have not proved its validity in law.
It is noted that what became Article 121(3) of the Convention had been a compromise of opinions of different States, as such PCA judgement is in itself subjective to the Philippines' request and is difficult to serve as a precedent which is a principle or rule established for a court or other tribunal when deciding subsequent cases of the UNCLOS.
PCA' s interpretation of islands/ Rock is therefore an opinion which may not be compatible to the issues. It is then a direct interference of sovereignty and It's position not to "first decide questions of sovereignty " would be arbitrary and outside its jurisdiction.
China believed that each maritime entitlement is explicitly tied to the State that it belongs to. In its provisions on territorial sea, contiguous zone, exclusive economic zone, and continental shelf, the UNCLOS explicitly grants the maritime entitlements to the “coastal State” of relevant maritime zones in question. It is meaningless to separate from State sovereignty ( paragraph 479 ).
It is further noted in 538 that "repeated attempts during the Conference to define or categorise islands or rocks by reference to size were all rejected. These included proposals to include “size” on a list of “relevant factors”;579 proposals that made distinctions based on whether the surface area of a feature. In this respect, the representative of United Kingdom recalled that “there were large islands which were largely or completely uninhabited and small ones with dense populations which depend heavily upon the sea.”583 Representatives of small island States, such as Micronesia, Fiji, Tonga, and Western Samoa, also argued that it was inequitable to deprive features of their maritime entitlements on the basis of size.584
PCA has imposed criteria over the feature itself sustain human habitation or economic life , such as " possess an economic life of its own", And in 547 "clearly excludes a dependence on external supply" would be subjective, argumentative, and depending on many different factors such as population, need and purpose of the human habitation. PCA's assessment may therefore be subjective and incomplete.
( Paragraph 453, 493) In an explanatory note to its proposal, China promised the general obligation of good faith in Article 300 of the Convention, agreed to take into account the overall interests of the international community, and not to encroach upon the Area as the common heritage of mankind.
During the 15th Session of the International Seabed Authority in June 2009, China raised the issue of rocks under Article 121(3) in the context of particular continental shelf submissions and “argued that the International Seabed Authority was the right forum to discuss matter since it had the mandate to protect the common heritage of mankind.” ( Paragraph 456)
The views of some States against special distinction of a coastal features over the provision that became Article 121(3) which took place during the Second Session of the Third UN Conference in Caracas in 1974 ;
"Some States opposed the introduction of special distinctions because they believed it was a “practical impossibility” to arrive at a workable formula.559 The representative of the United Kingdom pointed out various practical problems with distinguishing entitlements based on the size, population, or remoteness or geographical proximity of a feature in relation to the coastal or other States.560 The representative of Mexico agreed it would be “difficult, if not impossible,” to draft specific regulations to cover the “immense diversity of island situations” and therefore suggested that the “basic norm must reflect . . . that the marine space of an island must be measured in accordance with the same provisions as were applicable to other land territory. However, exceptions based on principles of equity could be accepted.”561"
Award of Philippines v. China case by the Permanent Court of Arbitration (PCA) at The Hague on July 12, 2016.
https://pca-cpa.org/wp-content/uploads/sites/175/2016/07/PH-CN-20160712-Award.pdf
3. On the Status of Itu Aba, Taiping Dao [Itu Aba],
The Tribunal has taken a passive and negative view "that significant cultivation would be difficult beyond the larger and more vegetated features of Itu Aba and Thitu". PCA also decided that human habitation is just temporary, even for extended periods. In this instance, PCA verdict ( pages 251 to 254 of the Award) is harsh and disregard the long history of Chinese cultural and developmental activities, its decision appears to be political than factual.
In this regard, THE CHINESE (TAIWAN) SOCIETY OF INTERNATIONAL LAW has described the current status of Taiping Island; explains why Taiping Island is an island within the meaning of Article 121(1) of the UNCLOS; And can sustain human habitation and economic life of its own. Tai Ping currently sustains the habitation of hundreds of people; has a longstanding history of human habitation; has an abundant natural supply of fresh water; the island has existed for more than a thousand years, and is capable of supporting indigenous vegetation and agricultural crops.
On the Law of the sea on the issue of the feat... - Embassy of the Republic of China (Taiwan) in the Kingdom of Swaziland 駐史瓦濟蘭大使館
http://web.roc-taiwan.org/sz_en/post/2164.html
(c) China’s Position on the Status of Itu Aba, Taiping Dao [Itu Aba]
China and Taiwan Authority’s statements “stressing that Taiping Dao [Itu Aba] meets the definition of island according to UNCLOS and is therefore eligible for possessing exclusive economic zone, continental shelf and other maritime rights and interests.” China’s remarks:
The Nansha Islands including Taiping Dao have been China’s territory since ancient times. Chinese people have long been living and working there continuously. China takes the Nansha Islands as a whole when claiming maritime rights and interests, and Chinese people across the Strait all have the responsibility to safeguard the property handed down from our ancestors. China is firmly against attempts of the Philippines to unilaterally deny China’s territorial sovereignty and maritime rights and interests in the South China Sea through arbitration. 510
In paragraph 595. A 1947 Chinese study discusses two types of soil on Itu Aba and concludes that the more rich is “lush with morning glories; the coconut and banana trees are doing well, but not many have been planted; the castor oil plant grows very well and is unusually prosperous.”635 The same study notes that “approximately 250 meters to the east of the radio station and slightly to the north, in the Barbados nut shrubs, there is a small vegetable patch of only slightly over 2 mu [1,333 square metres]; the vegetables are growing decently but there is pest damage.”636
The Tribunal accepts the point that the capacity for such cultivation would be limited and that agriculture on Itu Aba would not suffice, on its own, to support a sizable population, as in 596. For the Tribunal, the criterion of human habitation is not met by the temporary inhabitation of the Spratly Islands by fishermen, even for extended periods.
