By Dr. Alfredo C. Robles, Jr.
I’m posting this piece in the hope that it will be an input for the Philippines to Round 2 of the ongoing arbitration on the South China Sea.
First a disclosure. This is written by my brother-in-law, the certified nerd in the family. He is a retired Professor of International Studies from De la Salle University. He holds two doctorates – a Ph.D. in International and European Studies from the Université de Paris I (Panthéon-Sorbonne) and a Ph.D. in Political Science from Syracuse University. He was asked at the last minute to be the interpreter for both French President François Hollande and Philippine President Benigno Aquino for their joint press conference at the presidential palace during Hollande’s visit last February. In 2013, he was one of Metrobank Foundation’s 10 Outstanding Teachers. I forgot to say – when he graduated summa cum laude from the University of the Philippines, he broke the record then for having the highest grade point average.
Most of all, he took the trouble to read ALL THE TRANSCRIPTS of the arbitration and the ENTIRE decision of the arbitral court in order to draw out the following implications of the decision to the Philippine case. Please note that the words highlighted in blue lead to links of the sources he is referring to.
I know this is somewhat hard to read. It will remind you of your college. But do take the time out because it explains what the Philippines needs to do in Round 2, to achieve victory.
The award (decision) issued by the Arbitral Tribunal in the Philippines v. China arbitration creates the impression that this was a knockout (as a reporter for the Philippine Daily Inquirer put it) for the Philippines because of the following reasons: the award was adopted unanimously; the Solicitor General declared that China’s preliminary objections have been eliminated ; and China rejected the award.
The award is undoubtedly a triumph for the Philippines, in that China’s preliminary objections to the jurisdiction of the Tribunal, which were intended to terminate the proceedings, failed to prevent the Tribunal from proceeding to the next phase, the merits phase. In the latter, the Tribunal will hear the arguments on the substantive issues over Submissions 3 (Scarborough Shoal generates no entitlement to an Exclusive Economic Zone, EEZ or continental shelf), 4 (Mischief Reef, Second Thomas Shoal and Subi Reef are low-tide elevations that do not generate entitlement to a territorial sea, EEZ, or continental shelf), 6 (Gaven Reef and McKennan Reef, including Hughes Reef are low-tide elevations that do not generate entitlement to a territorial sea, EEZ or continental shelf), 7 (Johnson Reef, Cuarteron Reef and Fiery Cross Reef generate no entitlement to an EEZ or continental shelf), 10 (China has prevented Filipino fishermen from fishing at Scarborough Shoal) and 13 (China operates law enforcement vessels in a dangerous manner causing risk of collision to Philippine vessels in the vicinity of Scarborough Shoal).
Nevertheless, the award does not represent a total victory for the Philippines. In the first place, the Philippines, as the award makes very clear, was opposed to the bifurcation – the separation into two phases (jurisdiction/admissibility and merits) – of the proceedings and wished to argue jurisdiction and merits at the same time, in part to save money, as the Solicitor General admitted in April 2014. The holding of the hearings on jurisdiction and admissibility was not part of the Philippine strategy. More importantly, if we read the text of the award, or even just the summary , we realize that the Tribunal did not decide that it had jurisdiction on 8 of the 15 submissions by the Philippines, including the submission on the nine-dash line. Rather it asked the Philippines to clarify the content and narrow the scope of Submission 15 (China shall desist from further unlawful claims and activities) and decided that the preliminary objections to Submissions 1, 2, 5, 8, 9, 12 and 14 do not possess an exclusively preliminary character. Consequently it postponed consideration of jurisdiction to rule on these submissions to the merits phase. This means that in the merits phase, the Tribunal could still decide that it has no jurisdiction to rule over these submissions and might therefore end up not ruling on them after all.
To understand the situation, we have to clarify the nature of preliminary objections. Settlement of international disputes by international courts is based on consent given by states parties to the dispute. A state may give its consent to have a dispute with another state submitted to an international tribunal in several ways, but when a dispute is actually submitted to a tribunal, it may nevertheless argue that it has not given its consent for that particular type of dispute. It will then challenge the jurisdiction – the power to hear and decide the case – of the tribunal by filing preliminary objections. The practice of international tribunals is to suspend the proceedings on the merits in order to rule on the preliminary objections.
There are three possible outcomes at this stage. The tribunal may decide to uphold the preliminary objections, in which case the proceedings are terminated. It may decide to reject them, in which case it will hear the merits. Finally, the Tribunal may decide that the objection to its jurisdiction does not possess an exclusively preliminary character. This third possibility arises when the questions raised by the objections and those arising on the merits are too intimately related and too closely interconnected for a court to be able to rule on the former without prejudging the latter. On the third and last day of the July 2015 hearings, the lawyers for the Philippines explicitly declared that there were no issues of jurisdiction or admissibility that had to be deferred to the merits phase.
The reason for this is understandable. As the great Italian jurist Roberto Ago explained in 1975, joining the preliminary objections to the merits inevitably doubles the length of the proceedings, as the objections are argued twice – the first time, during the jurisdictional phase, and the second time during the merits phase. In the Nicaragua v. US case (Military and Paramilitary Activities in and against Nicaragua, 1984-91), the International Court of Justice postponed for consideration in the merits phase a US preliminary objection. During the merits phase, it upheld the preliminary objection, but found another basis for ruling on the case. In the Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) case, the ICJ ruled in the jurisdiction and admissibility phase that a preliminary objection raised by Spain did not have an exclusively preliminary character (1964), only to uphold the preliminary objection six years later (1970), thus terminating the proceedings without a decision on the merits. This outcome was particularly galling for Spain, for it had been obliged to argue the preliminary objections from 1962 to 1964, and subsequently, the remaining preliminary objection, together with the merits, from 1964 to 1970.
If we now examine the Philippine submissions that in the Tribunal’s view, did not possess an exclusively preliminary character – Submissions 1, 2, 5, 8, 9, 12 and 14 – we discover that they are among the most important of the Philippine submissions. Submissions 1 and 2 ask the Tribunal to declare that China’s claim to historic rights, as embodied in the nine-dash line, are invalid. According to the Tribunal, consideration of these two submissions would depend on the nature of China’s historic rights and examination of 2006 China’s Declaration excluding jurisdiction over historic bays or titles. Hence they would have to be examined together with the merits. Submission 5 requests the Tribunal to declare that Mischief Reef and Second Thomas Shoal are part of the Philippine EEZ and continental shelf. Mischief Reef is 126 nautical miles, and Second Thomas Shoal 104 nautical miles, from the nearest point in Palawan. Since a coastal state has an entitlement to an EEZ and a continental shelf of 200 nautical miles from its baselines, the two are in theory within the Philippine EEZ and continental shelf. However, as the Tribunal pointed out, if it found that there were a Chinese island within 200 nautical miles of either of these two features, then the feature(s) would also be in the Chinese EEZ and continental shelf. The reason for this is that an island, like any other land territory, has an entitlement to a continental shelf and an EEZ. The Philippine and Chinese EEZs and continental shelves would overlap and thus have to be delimited – but maritime delimitation is excluded by the 2006 Chinese Declaration excluding certain types of disputes from compulsory dispute settlement entailing a binding decision. For the same reason, the Tribunal would be prevented from ruling on the eighth and ninth submissions, which complain about China’s interference with Philippine oil exploration, seismic surveys and fishing in what the Philippines claims to be its continental shelf and EEZ.
In Submission 12, the Philippines argues that China has violated its duties under the 1982 Convention by occupation, construction of artificial islands, installations and structures and damage to the marine environment on Mischief Reef, which in the Philippine view is a low-tide elevation. The latter is defined by the 1982 United Nations Convention on the Law of the Sea as “a naturally formed area of land which is surrounded by and above water at low tide but submerged at high tide,” and does not generate entitlement to a territorial sea, EEZ or continental shelf. If the Tribunal found that Mischief Island is a rock or island and thus constitutes land territory, it would not have jurisdiction to consider whether China’s activities and appropriation were lawful, because disputes over military activities are excluded by China’s 2006 Declaration. The same reasoning would apply to Submission 14, which accuses China of aggravating and extending the dispute through its activities in and around Second Thomas Shoal (interfering with Philippine navigation, preventing the rotation and resupply of Philippine personnel and endangering their health and well-being).
If we consult the transcripts of the hearing on jurisdiction and admissibility held in July 2015, we realize that the Tribunal asked the Philippines questions on these points both before and during the hearings; moreover, it gave the Philippines the opportunity to reply to them in writing after the hearing. For example, as regards Submission 1, Judge Rúdiger Wolfrum, one of the five members of the Tribunal, asked the Philippines whether it would be first necessary to establish China’s entitlements under the 1982 Convention before it could be possible to determine that China’s claims exceeded those permitted by the Convention. Before the hearings, the Tribunal asked the Philippines with regard to submissions 5, 8 and 9, whether they presupposed a prior determination of sovereignty over any feature in dispute between the Philippines and China, which might have an entitlement to an EEZ that overlapped with the Philippine EEZ. In relation to Question 8, the Tribunal asked the Philippines about the implications, if any, of a continental shelf claim by China for the Tribunal’s jurisdiction. If China could claim a continental shelf that overlapped with that of the Philippines, then the two continental shelves would have to be delimited – but maritime delimitation is excluded by China’s 2006 Declaration. The Tribunal also asked the Philippines, in relation to Submission 12, whether China’s activities in Mischief Reef could be covered by China’s Declaration, which also excluded military activities. Finally, as regards Submission 14, the Tribunal asked whether a military activity would cease to be a military activity if it concurrently served other purposes.
The fact that the Tribunal decided to postpone consideration of its jurisdiction on these submissions to the merits phase suggests that the Philippines, which did not want any issue to be deferred, was not able to provide entirely satisfactory answers to these questions. In the merits phase, therefore, the Philippines will again have to attempt to convince the Tribunal that it has jurisdiction over these submissions. Most, if not all, of the Philippine arguments on the merits have probably been ready for some time now, since the Philippines prepared its Memorial (the first written pleadings) on the assumption that there would be only one phase (jurisdiction and merits). The question that now arises is whether part of these arguments will have to be amplified or revised in light of the Philippines’ inability to convince the Tribunal that it had jurisdiction on these issues. We can only hope that the Philippine arguments on the merits will, in this phase, finally convince the Tribunal that it has jurisdiction over submissions 1, 2, 5, 8, 9, 12 and 14. Otherwise the challenge to China’s nine-dash line and to certain Chinese activities in the South China Sea will have failed.