FULL TEXT: PCJ Ruling Jurisdiction 7th Press Release
PRESS RELEASE ARBITRATION BETWEEN THE REPUBLIC OF THE PHILIPPINES AND THE PEOPLE’S REPUBLIC OF CHINA
The Hague, 29 October 2015
The Tribunal Renders Award on Jurisdiction and Admissibility; Will Hold Further Hearings
The Tribunal constituted under Annex VII to the United Nations Convention on the Law of the Sea (the “Convention”) in the arbitration instituted by the Republic of the Philippines against the People’s Republic of China has issued its Award on Jurisdiction and Admissibility. This arbitration concerns the role of “historic rights” and the source of maritime entitlements in the South China Sea, the status of certain maritime features in the South China Sea and the maritime entitlements they are capable of generating, and the lawfulness of certain actions by China in the South China Sea that are alleged by the Philippines to violate the Convention.
In light of limitations on the matters that can be submitted to compulsory dispute settlement under the Convention, the Philippines has emphasized that it is not requesting the Tribunal to decide the question of sovereignty over maritime features in the South China Sea that are claimed by both the Philippines and China. Nor has the Philippines requested the Tribunal to delimit any maritime boundary between the two States. China has repeatedly stated that “it will neither accept nor participate in the arbitration unilaterally initiated by the Philippines.” China has, however, made clear its view—in particular through the publication in December 2014 of a “Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines” (“China’s Position Paper”)—that the Tribunal lacks jurisdiction to consider the Philippines’ Submissions.
Under the Convention, an arbitral tribunal must satisfy itself that it has jurisdiction to decide a matter presented to it, even if a party chooses not to participate in the proceedings or to make a formal objection. Accordingly, the Tribunal decided in April 2015 that it would treat China’s Position Paper as effectively constituting a plea concerning the Tribunal’s jurisdiction and convened a Hearing on Jurisdiction and Admissibility that took place in The Hague on 7, 8 and 13 July 2015.
The Tribunal’s Award of today’s date is unanimous and concerns only whether the Tribunal has jurisdiction to consider the Philippines’ claims and whether such claims are admissible. The Award does not decide any aspect of the merits of the Parties’ dispute. In its Award, the Tribunal has held that both the Philippines and China are parties to the Convention and bound by its provisions on the settlement of disputes. The Tribunal has also held that China’s decision not to participate in these proceedings does not deprive the Tribunal of jurisdiction and that the Philippines’ decision to commence arbitration unilaterally was not an abuse of the Convention’s dispute settlement procedures. Reviewing the claims submitted by the Philippines, the Tribunal has rejected the argument set out in China’s Position Paper that the Parties’ dispute is actually about sovereignty over the islands in the South China Sea and therefore beyond the Tribunal’s jurisdiction. The Tribunal has also rejected the argument set out in China’s Position Paper that the Parties’ dispute is actually about the delimitation of a maritime boundary between them and therefore excluded from the Tribunal’s jurisdiction through a declaration made by China in 2006. On the contrary, the Tribunal has held that each of the Philippines’ Submissions reflect disputes between the two States concerning the interpretation or application of the Convention. The Tribunal has also held that no other States are indispensable to the proceedings.
Turning to the preconditions to the exercise of the Tribunal’s jurisdiction set out in the Convention, the Tribunal has rejected the argument in China’s Position Paper that the 2002 China–ASEAN Declaration on the Conduct of Parties in the South China Sea constitutes an agreement to resolve disputes relating to the South China Sea exclusively through negotiation. On the contrary, the Tribunal has held that the China– ASEAN Declaration was a political agreement that was not intended to be legally binding and was therefore not relevant to the provisions in the Convention that give priority to the resolution of disputes through any means agreed between the Parties. The Tribunal has likewise held that certain other agreements and joint statements by China and the Philippines do not preclude the Philippines from seeking to resolve its dispute with China through the Convention. Further, the Tribunal has held that the Philippines has met the Convention’s requirement that the Parties exchange views regarding the settlement of their dispute and has sought to negotiate with China to the extent required by the Convention and general international law.
The Tribunal then considered the limitations and exceptions set out in the Convention that preclude disputes relating to certain subjects from being submitted to compulsory settlement. The Tribunal observed that whether these limitations and exceptions would apply to the Philippines’ claims was, in some cases, linked to the merits of the claims. For instance, whether the Tribunal would have jurisdiction to address China’s claims to historic rights in the South China Sea may depend upon the Tribunal’s assessment of the nature of China’s claimed rights. Similarly, whether the Tribunal would have jurisdiction to address Chinese activities in the South China Sea may depend upon the Tribunal’s decision on whether any of the maritime features claimed by China are islands capable of generating maritime zones overlapping those of the Philippines. The Tribunal also noted that the location of certain activities and the Convention’s exception for military activities may affect its jurisdiction over certain of the Philippines’ claims.
In light of the foregoing, the Tribunal has concluded that it is presently able to decide that it does have jurisdiction with respect to the matters raised in seven of the Philippines’ Submissions. The Tribunal has concluded, however, that its jurisdiction with respect to seven other Submissions by the Philippines will need to be considered in conjunction with the merits. The Tribunal has requested the Philippines to clarify and narrow one of its Submissions.
The Tribunal will convene a further hearing on the merits of the Philippines’ claims. In consultation with the Parties, the Tribunal has provisionally set the dates for the merits hearing. As with the Hearing on Jurisdiction and Admissibility, the hearing on the merits will not be open to the public, however the Tribunal will consider requests from interested States to send small delegations of observers. The Permanent Court of Arbitration (the “PCA”), which acts as Registry in the case, will issue further Press Releases upon the commencement and closing of the merits hearing. The Tribunal expects that it will render its Award on the merits and remaining jurisdictional issues in 2016.
An expanded summary of the Tribunal’s reasoning is set out below.
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SUMMARY OF THE AWARD ON JURISDICTION AND ADMISSIBILITY
1. Background to the Arbitration and to the Proceedings on Jurisdiction and Admissibility
This arbitration concerns an application by the Philippines for rulings in respect of three inter-related matters concerning the relationship between the Philippines and China in the South China Sea. First, the Philippines seeks a ruling on the source of the Parties’ rights and obligations in the South China Sea and the effect of the United Nations Convention on the Law of the Sea on China’s claims to “historic rights” within its so-called “nine-dash line”. Second, the Philippines seeks a ruling on whether certain maritime features claimed by both China and the Philippines are properly characterised as islands, rocks, low tide elevations or submerged banks under the Convention. The status of these features under the Convention may determine the maritime zones they are capable of generating. Finally, the Philippines seeks rulings on whether certain Chinese activities in the South China Sea have violated the Convention, by interfering with the exercise of the Philippines’ sovereign rights and freedoms under the Convention or through construction and fishing activities that have harmed the marine environment.
The Chinese Government has adhered to the position of neither accepting nor participating in these arbitral proceedings. It has reiterated this position in diplomatic notes, in public statements, in the “Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines” dated 7 December 2014, and in two letters to members of the Tribunal from the Chinese Ambassador to the Kingdom of the Netherlands. The Chinese Government has also made clear that these statements and documents “shall by no means be interpreted as China’s participation in the arbitral proceeding in any form.”
Under the Convention, a tribunal constituted under Annex VII has jurisdiction to consider a dispute between States Parties to the Convention to the extent that the dispute involves the “interpretation or application” of the Convention. However, the Convention excludes certain types of disputes from the jurisdiction of a tribunal and includes certain preconditions that must be met before any tribunal may exercise jurisdiction.
For reasons set out in Procedural Order No. 4 and explained in the PCA’s Fourth Press Release in this matter, dated 22 April 2015, available at http://www.pcacases.com/web/view/7, the Tribunal considered the communications by China to constitute, in effect, a plea that the Philippines’ Submissions fall outside the scope of the Tribunal’s jurisdiction. Accordingly, the Tribunal conducted a hearing in July 2015 on the scope of its jurisdiction and the admissibility of the Philippines’ claims.
The Tribunal also has a duty pursuant to Article 9 of Annex VII to the Convention to satisfy itself that it has jurisdiction over the dispute. Accordingly, the Tribunal made clear before and during the hearing that it would consider possible issues of jurisdiction and admissibility whether or not they were addressed in China’s Position Paper.
2. The Parties’ Positions The Philippines’ has made 15 Submissions in these proceedings, requesting the Tribunal to find that:
- China’s maritime entitlements in the South China Sea, like those of the Philippines, may not extend beyond those permitted by the United Nations Convention on the Law of the Sea (“UNCLOS” or the “Convention”);
- China’s claims to sovereign rights and jurisdiction, and to “historic rights”, with respect to the maritime areas of the South China Sea encompassed by the so-called “nine-dash line” are contrary to the Convention and without lawful effect to the extent that they exceed the geographic and substantive limits of China’s maritime entitlements under UNCLOS;
- Scarborough Shoal generates no entitlement to an exclusive economic zone or continental shelf;
- Mischief Reef, Second Thomas Shoal and Subi Reef are low-tide elevations that do not generate entitlement to a territorial sea, exclusive economic zone or continental shelf, and are not features that are capable of appropriation by occupation or otherwise; 3
- Mischief Reef and Second Thomas Shoal are part of the exclusive economic zone and continental shelf of the Philippines;
- Gaven Reef and McKennan Reef (including Hughes Reef) are low-tide elevations that do not generate entitlement to a territorial sea, exclusive economic zone or continental shelf, but their low-water line may be used to determine the baseline from which the breadth of the territorial sea of Namyit and Sin Cowe, respectively, is measured;
- Johnson Reef, Cuarteron Reef and Fiery Cross Reef generate no entitlement to an exclusive economic zone or continental shelf;
- China has unlawfully interfered with the enjoyment and exercise of the sovereign rights of the Philippines with respect to the living and non-living resources of its exclusive economic zone and continental shelf;
- China has unlawfully failed to prevent its nationals and vessels from exploiting the living resources in the exclusive economic zone of the Philippines;
- China has unlawfully prevented Philippine fishermen from pursuing their livelihoods by interfering with traditional fishing activities at Scarborough Shoal;
- China has violated its obligations under the Convention to protect and preserve the marine environment at Scarborough Shoal and Second Thomas Shoal;
- China’s occupation and construction activities on Mischief Reef
- violate the provisions of the Convention concerning artificial islands, installations and structures;
- violate China’s duties to protect and preserve the marine environment under the Convention; and
- constitute unlawful acts of attempted appropriation in violation of the Convention;
- China has breached its obligations under the Convention by operating its law enforcement vessels in a dangerous manner causing serious risk of collision to Philippine vessels navigating in the vicinity of Scarborough Shoal;
- Since the commencement of this arbitration in January 2013, China has unlawfully aggravated and extended the dispute by, among other things:
- interfering with the Philippines’ rights of navigation in the waters at, and adjacent to, Second Thomas Shoal;
- preventing the rotation and resupply of Philippine personnel stationed at Second Thomas Shoal; and
- endangering the health and well-being of Philippine personnel stationed at Second Thomas Shoal; and
- China shall desist from further unlawful claims and activities.
With respect to jurisdiction, the Philippines has asked the Tribunal to declare that the Philippines’ claims “are entirely within its jurisdiction and are fully admissible.” The Philippines’ arguments on jurisdiction, advanced during the July 2015 Hearing are summarised in the PCA’s Sixth Press Release in this matter, dated 13 July 2015, available at http://www.pcacases.com/web/view/7.
China does not accept and is not participating in this arbitration but has stated its position that the Tribunal “does not have jurisdiction over this case.” In its “Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines” of December 2014, China advanced the following arguments:
- The essence of the subject-matter of the arbitration is the territorial sovereignty over several maritime features in the South China Sea, which is beyond the scope of the Convention and does not concern the interpretation or application of the Convention;
- China and the Philippines have agreed, through bilateral instruments and the Declaration on the Conduct of Parties in the South China Sea, to settle their relevant disputes through negotiations. By unilaterally initiating the present arbitration, the Philippines has breached its obligation under international law;
- Even assuming, arguendo, that the subject-matter of the arbitration were concerned with the interpretation or application of the Convention, that subject-matter would constitute an integral part of maritime delimitation between the two countries, thus falling within the scope of the declaration filed by China in 2006 in accordance with the Convention, which excludes, inter alia, disputes concerning maritime delimitation from compulsory arbitration and other compulsory dispute settlement procedures;