Tribunal proceedings on Manila's claims flawed

An aerial photo taken on Sept 25, 2015 from a seaplane of Hainan Maritime Safety Administration shows cruise vessel Haixun 1103 heading to the Yacheng 13-1 drilling rig during a patrol in South China Sea. [Photo/Xinhua]

As is now well known, the Philippines has brought arbitration proceedings against China under the United Nations Convention on the Law of the Sea relating to the South China Sea, and the Tribunal has recently given its decision on whether it has jurisdiction over the claims made by the Philippines. It found that it had jurisdiction, although unconditionally only over three of the 15 submissions made by the Philippines. The Tribunal has since heard argument on the merits of the various claims, and is likely to give its ruling on them later this year. But looked at critically the decision of the Tribunal that it has jurisdiction has a number of weaknesses.

As background, UNCLOS emphasizes that the States bordering a semi-enclosed sea, like the South China Sea, should cooperate together in dealing with common issues, even when there is no agreement about the maritime boundaries between them.

In addition, UNCLOS sets out what maritime zones it is permissible for a coastal State to claim: a territorial sea of twelve nautical miles, an exclusive economic zone of 200 nautical miles, and a continental shelf stretching at least to 200 nautical miles, but potentially extending beyond that if the geological conditions are right. These maritime zones cannot be claimed from "low-tide elevations", that is features which are underwater at high tide. All of these maritime zones can be claimed from islands, except that "rocks which cannot sustain human habitation or economic life of their own" can only generate a territorial sea. This definition of "rocks" is not easy to interpret and so far there has been little international case-law on what it might mean. However, it is critical to many of the arguments of the Philippines that they allege that a large number of the features in the South China Sea are either low-tide elevations or "rocks".

Under UNCLOS there are certain circumstances in which a State is obliged to accept that a dispute with another State can be put to arbitration, but there are a significant number of exceptions and limitations to this obligation, some of which are exercisable at the option of the State concerned. In other words, when it is said that under UNCLOS the States party have consented to arbitration, this is true only in a very qualified way: they have only consented to arbitration subject to the exceptions and limitations set out in UNCLOS. This is important because the provisions in UNCLOS on the settlement of disputes were accepted as part of a package deal at the UN Conference which adopted UNCLOS; it is obviously important to all parties to UNCLOS that the package deal is not disturbed.