Tribunal proceedings on Manila's claims flawed

When the Philippines commenced arbitration proceedings under UNCLOS, China declined to appear, arguing that the proceedings were covered by one of the exceptions in UNCLOS. Non-appearance by a State in international proceedings is actually not so unusual. Most famously, the United States declined to participate in the proceedings brought by Nicaragua in the International Court of Justice in the 1980s after the Court had held that it had jurisdiction.

So, on what basis did the Tribunal find that it had jurisdiction? The first point to note is that the Tribunal does not have jurisdiction to adjudicate upon the territorial sovereignty over the various land features in the South China Sea－even though it is common knowledge that this issue is hotly disputed, not only by China and the Philippines, but also by Viet Nam, Malaysia and Brunei. In other words, the Tribunal cannot say that a particular feature belongs to China or the Philippines. This is because the Tribunal only has jurisdiction to decide on disputes over the "interpretation or application" of UNCLOS, and UNCLOS of course is not concerned with resolving disputes over land territory. The Philippines recognized the difficulty here and expressly denied that it was seeking a decision on sovereignty over land territory.

Despite this, the Tribunal took the view that it can decide upon the status of features in the South China Sea (ie whether they are "rocks" or low-tide elevations), even though it cannot rule on which State the feature belongs to. I have described this elsewhere as putting the status cart before the sovereignty horse, and there appears to be no precedent for an international tribunal proceeding in such circumstances.

In reaching this conclusion, the Tribunal asked itself what was the "real issue" in the case brought by the Philippines, and decided that it was not about the sovereignty over the features, but about their status; thus, it said that it could rule on the latter question without touching on the former. This is despite the recent precedent of the case brought by Mauritius against the United Kingdom, in which by bringing proceedings under UNCLOS questioning the validity of the marine protected area declared around the Chagos Archipelago, Mauritius sought to dispute the sovereignty over the islands. The Tribunal in that case rightly saw through that device and declined to accept Mauritius's argument on this point. It is perhaps surprising that the Tribunal in the Philippines case did not follow this precedent.

It is also important to note that one of the exceptions in UNCLOS which China has made use of relates to maritime delimitation. Thus, there can be no compulsory recourse to arbitration in a case about maritime delimitation involving China. But actually one of the key questions in any maritime delimitation is: what is the status of the various features in the maritime area being delimited. This is because, as we have seen, low-tide elevations do not generate maritime zones at all and "rocks" only generate a territorial sea. So, deciding upon the status of maritime features is an indispensable component in effecting a maritime delimitation. In other words, delimiting a maritime boundary necessarily involves also considering the status of maritime features. There is a strong argument therefore that the Chinese exception for maritime delimitation should also have been held to cover the question of the status of the maritime features which are an indispensable part of effecting a maritime delimitation.

Furthermore, there is a well-known legal dictum that "the land dominates the sea". In other words, a State's entitlements to maritime zones depends upon the territory owned by that State. Thus, the International Court of Justice in its case-law has always decided upon disputes over land territory before proceeding to prescribe a maritime boundary. So, there are three interdependent elements: the status of features, maritime delimitation and sovereignty over land territory. But even though the Tribunal accepted that it has no jurisdiction over the latter two elements, it has decided to proceed with the case on the basis that it has jurisdiction over the first element.