To celebrate International Women’s Day and the swearing in of Chief Justice Kiefel as the first female Chief Justice of the High Court of Australia, the ILA Reporter will profile prominent Women in International Law throughout March 2017. Our first interview is with Professor Natalie Klein, current Dean at Macquarie University Law School and a leading expert in international law of the sea. More
law of the sea
By Editors in Articles, News Tags: China v Philippines, economic law, environmental law, EU law, human rights, international criminal court, international humanitarian law, international trade and finance, law of the sea, refugee law, security law
The past year has been incredibly tumultuous, having reset the international stage and delivering incredibly unexpected political outcomes. From an international legal perspective, while events such as Brexit, Donald Trump’s election, and the crisis in Syria have undoubtedly raised important legal questions and will likely change international law in the future, there have been numerous other significant developments. More
Setting the Boundaries in the Timor Sea: The Prospects of Renewed Negotiations between Australia and East Timor – Esther Pearson
The issue of maritime boundaries in the Timor Sea is once again live following a request from East Timor’s Prime Minister, Rui Araugj, to Prime Minister Malcolm Turnbull that the leaders meet to discuss a permanent maritime boundary. According to Dr Araujo, the existing arrangements governing the exploitation of gas and oil resources in the Timor Sea are not consistent with East Timor’s entitlements under international law. Mr Turnbull has offered to hold ‘frank and open’ discussions about the border, while the Shadow Minister for Foreign Affairs, Tanya Plibersek, has said that the Australian Labor Party, if successful at the Federal election, would negotiate in ‘good faith’ and would submit the matter to international arbitration if negotiations were to fail. This article discusses the background to the dispute and the current arrangements between Australia and East Timor, as well as the possible outcome of any arbitration.
Background and Current Arrangements
In 1972, Australia and Indonesia entered an agreement on maritime boundaries in the Timor Sea, with the final boundary being divided into two sections separated by a gap, in recognition of the existence of what was, at the time, Portuguese Timor. The gap became known as the ‘Timor Gap’, and the ‘Timor Gap Zone of Cooperation’ was established between Australia and Indonesia. On 20 May 2002, the date of East Timorese independence, Australia and East Timor entered into the ‘Timor Sea Treaty’ (‘TST’), which established a Joint Petroleum Development Area (‘JPDA’) over the central part of the Zone of Cooperation. The southern boundary of the JPDA representing the median line between Australia and East Timor. Under Article 2 of the TST, the issue of maritime boundaries was set aside without prejudice to the States’ future rights to negotiate a permanent boundary. It was agreed that East Timor would receive 90% of the revenue from the exploitation of the gas and oil deposits in the JPDA and Australia would receive 10%.
On 6 March 2003, the Sunrise International Unitisation Agreement (‘Sunrise IUA’) was signed between Australia and East Timor that unitised the fields that straddled the eastern side of the JPDA into the ‘Greater Sunrise’ field. The Sunrise IUA deemed 20.1% of the field to lie within the JPDA, meaning that, as East Timor was to receive 90% of the revenue under the TST, it would receive 18.1% of the revenue from the Greater Sunrise field. East Timor considered this arrangement to be unacceptable and refused to ratify the agreement.
Negotiations concerning the exploitation of the Greater Sunrise field resumed in 2004, eventuating in the signing of the Treaty on Certain Maritime Arrangements in the Timor Sea (‘CMATS’) on 12 January 2006. Article 2 of CMATS provides that the treaty is without prejudice (inter alia) to the States’ legal position regarding maritime boundaries, while Article 12 defers each States’ boundary claims for up to 50 years. Under Article 5, Australia and East Timor are to share the revenue from the exploitation of the field equally, despite that around 80% of the field lies outside the JPDA and within Australia’s continental shelf.
The key legal instrument governing the law of the sea is the United Nations Convention on the Law of the Sea (‘UNCLOS’). Articles 56 and 57 of UNCLOS allow States to declare an Exclusive Economic Zone (‘EEZ’) of up to 200 nautical miles (‘nm’), in which the State has sovereign rights to explore, exploit, converse and manage natural resources in the seabed, subsoil and water column. Articles 76 and 77 entitle States to a continental shelf that extends to the outer edge of the continental margin, or to a distance of 200 nm from the territorial sea baseline, in which the State has sovereign rights to explore and exploit the seabed and subsoil.
In the case of States with opposite coasts less than 400 nm apart, it is necessary for the States to agree, or for an independent body to decide, on the delimitation of the States’ maritime boundaries. Article 74 of UNCLOS relevantly provides (inter alia) as follows:
- ‘The delimitation of the exclusive economic zone between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the State of the International Court of Justice, in order to achieve an equitable solution.
- If no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provided for in Part XV.
Article 83 of UNCLOS addresses the delimitation of the continental shelf and is substantially in the same wording as Article 74.
The Current Situation
East Timor asserts that the north/south boundary between Australia and East Timor should be determined on the basis of equidistance. Given that the southern boundary of the JPDA represents the median line between the States, this would effectively bring the entirety of the JPDA within East Timor’s EEZ. East Timor also wants to shift the eastern and western laterals (the sides of the JPDA) further in each direction. This would bring a greater proportion of the Greater Sunrise field within the JPDA.
Australia, on the other hand, has traditionally argued that the delimitation of continental shelves in the Timor Sea should reflect the ‘natural prolongation’ of each States’ land territory under the sea. This would lead to the formation of two separate continental shelves separated by the Timor Trough, with Australia’s continental shelf extending significantly further than that of East Timor. Australia also refutes East Timor’s claims to the east and west of the JPDA. These opposing attitudes are likely to make it difficult for an agreement to be reached through negotiation.
Articles 74(2) and 83(2) of UNCLOS provide that if no agreement can be reached through negotiation, the States should resort to the procedures enshrined in Part XV. Under Part XV, each State that accedes to or ratifies UNCLOS is to choose whether any dispute will be submitted to the International Tribunal for the Law of the Sea (‘ITLOS’), the International Court of Justice (‘ICJ’) or an arbitral tribunal. On 21 March 2002, in submitting to the jurisdiction of ITLOS and the ICJ, Australia declared that it did not accept any of the dispute resolution procedures in the case of maritime boundary disputes. On 25 March 2002, Australia made a reservation under Article 36(2) of the Statute of the International Court of Justice as to the jurisdiction of the ICJ to resolve disputes over maritime boundaries.
Possible Outcome of Arbitration
This leaves East Timor with the possibility of submitting the matter to international arbitration, should the Australian government be willing. While the arbitrator/s would not be bound by the jurisprudence of ITLOS and the ICJ, the principles established by these bodies are likely to have some influence on the outcome. Despite the finding of the ICJ in North Sea Continental Shelf (Federal Republic of Germany/Netherlands) that natural prolongation should be a significant factor guiding the delimitation of the continental shelf, more recently, the concept of equidistance has been given primacy (see, in particular, Continental Shelf (Libyan Arab Jamahiriya/Malta)).
In its judgment in Maritime Delimitation in the Black Sea (Romania v Ukraine), the ICJ developed a three-step approach to the delimitation of States’ boundaries with opposite coasts. Firstly, a provisional median line is drawn between the coastal States. Secondly, any factors that require an adjustment to the provisional line to achieve an equitable result are considered. Finally, to ensure the result is equitable, the ratio between the States’ coastal lengths and maritime areas, with reference to the adjustment line, are compared. As there are no obvious factors requiring an adjustment to the provisional median line between Australia and East Timor, it is reasonable to expect any arbitral tribunal to find in favour of an equidistant north/south boundary.
In terms of the eastern and western JPDA laterals, an opinion prepared by three public international law specialists, Vaughan Lowe, Christopher Carleton and Christopher Ward, considers that the laterals should move further in each direction. According to the opinion, the western lateral proceeds from the incorrect point on East Timor, and, should the lateral proceed from the correct point, the line would move somewhat to the west. In addition, the eastern lateral gives disproportionate effect to the western Indonesian island of Leti. This means that all points on the lateral are equidistant between East Timor and Leti, resulting in the eastern boundary being closer to East Timor. If half or three-quarters effect were given to Leti, consistent with ICJ jurisprudence (see Continental Shelf (Tunisia/Libyan Arab Jamahiriya), the eastern lateral would move significantly to the east, placing most, or all, of the Greater Sunrise field with East Timor’s EEZ. This also points towards an arbitral tribunal finding in favour of East Timor.
The issue of maritime boundaries in the Timor Sea is the cause of considerable tension between Australia and East Timor. The foregoing analysis suggests that East Timor’s Prime Minister may, in fact, be correct to say that the existing arrangements do not reflect East Timor’s entitlements under international law. With this in mind, the outcome of the upcoming Federal election may bring about a significant change in the relationship between the two Asia-Pacific neighbours.
Esther Pearson is Assistant Editor of the ILA Reporter.
Last week the USS Lassen, a United States guided-missile destroyer, sailed within 12 nautical miles of a series of artificial islands built by China in the South China Sea. In response, China reportedly summoned the US Ambassador, with a state-run newspaper claiming that China was not afraid of fighting a war. China’s naval commander warned that the move was ‘dangerous and provocative’, and policy makers, officials and journalists on all sides of the dispute have debated the wisdom, or otherwise, of these actions by the US.
The latest move by the US comes in the wake of China’s actions in the previously uninhabited Spratly Island group. In late 2014, China began reclaiming land on a series of reefs, some of which were only partially exposed at low tide. In 2015, satellite images showed significant construction beginning on the reefs/islands. China based its claim over the reef/islands on the so-called ‘Nine-Dash Line’, a 1947 map drawn up by Chiang Kai-shek’s nationalist government. It has been used as the basis, once in 1958, and in 2009 before the UN, in order to substantiate China’s claims.
China’s claim has not gone uncontested. Both Vietnam and the Philippines lay claim to the Spratly Island group, and some of the islands fall within the Exclusive Economic Zone of Malaysia and Brunei under the United Nations Convention on the Law of the Sea (UNCLOS). The Philippines has brought a case challenging the validity of China’s claims before an arbitral tribunal under UNCLOS. Despite China’s argument that the is over competing sovereignty claims, and so outside the remit of the arbitral body, last week the Permanent Court of Arbitration rejected this argument and will consider the case under UNCLOS (see Lea Christopher’s piece on the ILA Reporter on 5 November 2015 summarising the tribunal’s decision). However, China has pre-empted any finding, stating that it will not comply with any unfavourable ruling.
The legal issues associated with the South China Sea are complicated. There is a distinction to be made between claims that are covered by customary law and claims that are covered by the international law of the sea (predominantly contained within UNCLOS). The case of the USS Lassen is to be distinguished on this basis as well, and Shannon Tiezzi’s Diplomat analysis is instructive on the point. The recent US patrol was not concerned with challenging China’s claim to sovereignty over the islands, but rather asserting freedom of navigation, a point which the author claims has been lost among much of the news coverage.
Under UNCLOS, territorial sea extends 12 nautical miles from the shore (article 3). Within it, any ship enjoys the right of innocent passage (article 19). The circumstances that will generate territorial sea is central to the current disputes. A key provision is article 13, regarding low-tide elevations (LTEs):
Where a low-tide elevation is wholly situated at a distance exceeding the breadth of the territorial sea from the mainland or an island, it has no territorial sea of its own.
Article 60 then states that artificial islands do not have any territorial sea of their own and are only entitled to at most a 500 metre ‘safety zone’. This means that under UNCLOS, any artificial structures built by China on LTEs have no territorial sea. Whilst some of China’s construction has occurred on land not considered LTEs, the US has only conducted patrols within 12 nm of Mischief and Subi reefs, artificial islands that were previously LTEs, and so understood by the US not to have a territorial sea. By asserting their right to freedom of navigation past such structures, Tiezzi suggests the US ‘is not challenging China’s sovereignty over the Spratly features; it is challenging the status of those features under international law‘.
With many other LTEs in the region, this stand on freedom of navigation past the Spratly chain is an important test. Understanding how patrols, such as the USS Lassen’s, challenge China under the international law of the sea will be central in understanding the broader geopolitical developments in the region.
Philippines v China: Tribunal rules favourably on jurisdiction in South China Sea Arbitration – Lea Christopher
On 29 October 2015, an Arbitral Tribunal (Tribunal) issued its award on the questions of jurisdiction and admissibility in the arbitration between the Republic of Philippines and the People’s Republic of China concerning the South China Sea. In brief, the Tribunal found that it had jurisdiction to decide seven of the Philippines’ 15 substantive claims. As to the Philippines’ remaining claims, the Tribunal decided that the question of its jurisdiction needed to be deferred for further consideration in conjunction with its hearing of the merits of the claims.
The Philippines’ substantive claims were summarised in my previous article of 22 July 2015. To recap, its 15 claims can be broadly distilled as follows:
- China’s maritime entitlements or ‘historic rights’ over the waters, seabed and subsoil in the South China Sea do not extend beyond the limits of its entitlements under the United Nations Convention on the Law of the Sea (UNCLOS). The corollary is that China’s nine-dash line, insofar as it purports to define the limits of China’s ‘historic rights’ in the South China Sea, is not supported by UNCLOS or another source of international law;
- The various features relied upon by China to assert its maritime claims in the South China Sea are not islands (as China claims) but are properly characterised as either ‘rocks’ or ‘low tide elevations’ or are permanently submerged. China’s construction activities on particular maritime features cannot change their nature in law. This claim is critical to the arbitration because, under UNCLOS, the characterisation of these features determines the maritime entitlements they are capable of generating for a state (namely, an exclusive economic zone (EEZ) and/or continental shelf);
- China’s construction and occupation activities in relation to particular maritime features in the South China Sea constitute attempted appropriation of such features in violation of UNCLOS. Further, these activities, as well as China’s fishing and law enforcement activities, have interfered with the Philippines’ ability to freely navigate in its EEZ and the exercise of its sovereign rights in relation to the resources falling within its EEZ and continental shelf; and
- China has violated UNCLOS by engaging in fishing and construction activities that damage the marine environment in the South China Sea.
In summary, the Tribunal determined that it has jurisdiction over the second and fourth categories of claims (deferring consideration of the remaining first and third categories). In so finding, the Tribunal addressed each of the following issues in relation to the question of jurisdiction.
Did the Philippines’ claims raise a dispute concerning the interpretation and application of UNCLOS?
According to China’s Position Paper, the dispute could be characterised in two ways, both of which excluded the Tribunal’s jurisdiction. First, China characterised the dispute as concerning territorial sovereignty-related questions over features in the South China Sea. On that basis, China contended that the dispute did not concern the ‘interpretation and application of UNCLOS’, being the threshold requirement for the Tribunal’s jurisdiction under article 288 of UNCLOS.
The Tribunal rejected this characterisation, finding that, while a dispute between the parties did exist concerning land sovereignty over certain features, the Philippines’ claims did not require the Tribunal to make determinations on questions of sovereignty. The Tribunal found that each of the Philippines’ claims concerned the interpretation and application of UNCLOS.
Secondly, China contended that the dispute was properly characterised as relating to maritime boundary delimitation which, for the reasons given below, was excluded from the Tribunal’s jurisdiction by an exclusionary provision in the UNCLOS that China had activated in 2006.
In rejecting this contention, the Tribunal distinguished between a dispute concerning the existence of an entitlement to maritime zones (the present matter), and a dispute concerning the delimitation of those zones where parties’ entitlements overlap. The Tribunal also emphasised that, while it would determine the nature of particular maritime features in dispute, insofar as this resulted in overlapping entitlements between the parties the Tribunal’s determination would not go so far as to delimit boundaries.
Did any of the claims fall within the exceptions to jurisdiction in Part XV of UNCLOS?
As noted above, in 2006 China opted out of the Tribunal’s jurisdiction over particular categories of disputes, including those concerning:
- sea boundary delimitations;
- historic bays and titles;
- law enforcement activities; and
- military activities.
This action was taken in accordance with article 298 of UNCLOS, which entitles a party to opt out of compulsory dispute settlement procedures for specific types of disputes when signing or ratifying UNCLOS.
Considering each of the claims in turn, the Tribunal found that none of the exceptions to jurisdiction applied to the Philippines’ second and fourth category of claims. Consequently, it had jurisdiction to determine those claims.
As to the first and third categories, the Tribunal noted that the applicability of the above exceptions depended on merits of the claims and, as such, the possible jurisdictional objections did not possess an exclusively preliminary character. For that reason, the Tribunal reserved a decision on jurisdiction for consideration in conjunction with its determination of the merits of the claims. The Tribunal’s key considerations can be broadly summarised as follows:
- The Tribunal’s jurisdiction over the first category of claims (ie, the effect of any historic rights claimed by China) is dependent on whether the claims are caught by the exclusion for ‘historic bays and titles’ in article 298 of UNCLOS. This requires a determination as to the nature and effect of China’s claimed historic rights and their interaction with UNCLOS (ie, a merits determination);
- The Tribunal’s jurisdiction over the third category of claims (ie, concerning China’s various construction/interference activities) is dependent on the status of certain maritime features claimed by China and whether any such features generate maritime entitlements for China. Insofar as they generate entitlements for China and result in overlapping entitlements to maritime zones between the parties, the exclusion from ‘sea boundary delimitations’ in article 298 would prevent the Tribunal from addressing some of the Philippines’ claims. That is, such claims would first require a delimitation of the overlapping zones, which the Tribunal is not empowered to do; and
- The specifics of China’s activities in particular areas and whether they are military in nature (and therefore fall within the exclusion in article 298) are best assessed in conjunction with the merits.
Were the preconditions to the Tribunal’s jurisdiction met?
Relying on articles 281 and 282 of UNCLOS, China contended that state parties had agreed on a peaceful dispute resolution mechanism of their own choice, precluding recourse to the compulsory dispute settlement procedures under UNCLOS. The articles essentially prevent a state from resorting to the compulsory procedures in the event that they have already agreed on another means of dispute resolution. In this regard, China pointed to a series of joint statements by state parties starting in the mid-1990s that referred to the resolution of their dispute by negotiation, as well as the Treaty of Amity and Cooperation in South East Asia.
Having regard to these statements and instrument, the Tribunal concluded that they did not prevent the Philippines from resorting to arbitration under the compulsory dispute resolution provisions.
The Tribunal also found that the Philippines had satisfied the precondition for resorting to arbitration, namely, that the parties had an ‘exchange of views’ regarding settlement of the dispute (article 283). In so finding, the Tribunal relied upon diplomatic communications by the Philippines to affected parties in which it proposed multilateral negotiations to resolve the dispute. China insisted on bilateral talks only and the parties ultimately failed to identify a mutually agreeable mode of settlement.
The Tribunal also noted that it was not deprived of jurisdiction by either China’s non-participation in the arbitration to date or the absence of other states with claims to features in the South China Sea (such as Vietnam).
The dispute will now proceed to a substantive hearing to enable the Tribunal to determine the merits of the Philippines’ claims alongside the outstanding jurisdictional questions.
However, China has reiterated its position of non-acceptance of (and non-participation in) the arbitration. Its Vice Foreign Minister recently claimed that the outcome of the arbitration ‘will not impact China’s sovereignty, rights or jurisdiction over the South China Sea under historical facts and international law’. Without any power to enforce its rulings, the Tribunal could end up being entirely ignored by China insofar as the outcome is not in its favour. The proceeding could even prompt China to withdraw from UNCLOS altogether.
While the Philippines has acknowledged this risk, it hopes that an outcome unfavourable to China will encourage other states to defend their respective claims in the region and will result in sufficient diplomatic pressure to dissuade China from further construction activities in the South China Sea. In the meantime, the US has presented its most significant challenge yet to China’s claims in the South China Sea, sending a guided missile destroyer into waters within 12 nautical miles of one of the reefs in dispute days before the Tribunal published its award.
Lea Christopher is a lawyer at Clayton Utz in Canberra. The views expressed in this article are solely her own.
International Rules on the Use of Force: Implications for Russia + Ukraine, China + South and East Chinese Seas — Dr Alison Pert
On 20 August 2015, the International Law Association hosted a presentation delivered by Dr Alison Pert (University of Sydney) at the offices of Marque Lawyers in Sydney. The focus of the presentation was China’s recent island-building activities in the South China Sea, but there were also some musings on the effect that these, as well as Russia’s activities in Ukraine, may have on international law and the UN Charter‘s framework for maintaining international peace and security. Below is a summary of Dr Pert’s presentation, prepared by the ILA.
The South China Sea is of great strategic importance, being the shortest route between the Pacific and Indian Oceans; it is a major shipping route and over half the world’s oil tanker traffic passes through it.
China has two types of claims in the South China Sea — one generic and the other specific. China’s specific claims include the Paracel Islands and Spratly Islands, which are comprised of hundreds of historically uninhabited islands, atolls and reefs.
In its generic claim, China claims ‘sovereignty’ over almost the whole of the South China Sea, based on maps that show an incomplete line of 11 (subsequently 9 and 10) dashes. China has never explained the precise nature of its generic claim — whether it is meant to be a claim to a vast territorial sea, an exclusive economic zone, or only the land territory within the lines. China is a party to the United Nations Convention on the Law of the Sea (UNCLOS), and any claim to an exorbitant territorial sea or EEZ would be inconsistent with that treaty.
In its specific claim, China claims a territorial sea of 12 nautical miles, as provided for in UNCLOS, but from straight baselines and in some cases hundreds of kilometres from the coast. This is not permitted by the UNCLOS regime.
Both of China’s claims are vigorously contested by other states in the region, especially the Philippines, Vietnam, Malaysia, Indonesia and Taiwan. The Philippines is currently challenging the validity of the ‘9-dash’ claim in arbitral proceedings under UNCLOS, and a decision on jurisdiction and admissibility is due before the end of this year.
The basis of Chinas claims has not been explicitly laid out. Drawing from different sources, it appears to include ‘historic title’ to all the islands in the South China Sea and various activities over the centuries, including:
- the discovery and naming of the islands;
- boat-building, naval expeditions and voyages;
- developing knowledge of geographical and natural features;
- the opening of sea lanes (by marking safe routes on charts);
- conducting naval patrols as far back as 200–300 CE;
- conducting scientific surveys, mapping and fishing;
- placing islands under government administration (1127–1279); and
- ‘other acts of sovereignty’, such as the installation of facilities for fishing, forecasting and navigation, the rescue of vessels, the issuing of licences to private companies in relation to natural resources and large scale fishing.
These territorial claims may or may not be valid; the activities cited by China are indeed examples of the kinds of governmental acts (‘prescription’) that have successfully established title to territory elsewhere. But it is necessary that prescription is ‘peaceful’, meaning that it is without objection from competing claims. This may be difficult for China to establish.
What is of more concern is that rather than test those claims in a court or tribunal, China has been constructing large-scale military outposts on many of these islands and reefs. This might be a breach of international law if any of those islands or reefs are, or are within, another state’s territory. Even if they are not, China is behaving aggressively to any aircraft or vessels flying over or sailing through the waters of these islands and reefs, demanding that they turn back or go around the claimed Chinese territory. This too is contrary to international law in most cases. If a maritime feature is above water at high tide, and is naturally formed, it is an island as defined in UNCLOS and has its own territorial sea and contiguous zone. If it is also capable of sustaining human habitation or economic life on its own (few of these ‘islands’ are so capable), it is additionally entitled to a 200 nautical mile exclusive economic zone (EEZ) and a 200 nautical mile continental shelf (the creation of artificial islands is not prohibited per se but they generate no maritime zones). But even warships have the right of innocent passage through the territorial sea, and both shipping and aircraft have freedom of navigation through or over the EEZ. The concern is that China will use its new military facilities to enforce its claims to sovereignty and impede freedom of navigation.
China is not complying with UNCLOS in at least one other respect. It has drawn long straight baselines around each group of islands, claiming all the enclosed waters as internal waters and greatly extending the resulting territorial sea, EEZ and continental shelf. UNCLOS permits this only for archipelagic states (which China is not), and only where the ratio of water to land within those lines is 9:1 or below (and it is not).
The presentation concluded with the suggestion that while paying lip-service to international law, China is violating it in numerous ways. It was noted, as a point of comparison, that Russia’s activities in Ukraine have clearly violated the international law principle of non-intervention and, at times, the prohibition on the use of force. As permanent members of the Security Council, China and Russia would of course veto any resolution condemning them. There is a risk that the rule of (international) law is being seriously undermined, with consequences for the credibility and future of the UN collective security system.
The Editors would like to draw readers’ attention to an upcoming seminar in Sydney, hosted by the International Law Association and Baker & McKenzie. The seminar is on ‘Sea Level Rise and International Law’. A flyer about the seminar is available here — it is on Monday 10 August 2015, 12:00 pm to 2:00 pm at Baker & McKenzie’s Sydney office.
The speakers are all members of the ILA’s Committee on International Law and Sea Level Rise:
- Professor David Freestone (Executive Secretary of the Sargasso Sea Commission) — Committee Co-Rapporteur;
- Professor Rosemary Rayfuse (University of New South Wales) — Committee Member; and
- Professor Clive Schofield (University of Wollongong) — Committee Member.
The speakers will discuss the Committee’s work regarding the ‘consequences of sea-level rise on entitlements to maritime areas and on the natural environment’. They will also discuss the Committee’s draft interim report and future programs. Professor Rayfuse recently published a report on the Committee’s work on the ILA Reporter.
Tribunal holds hearing on jurisdictional questions in Philippines v China arbitration — Lea Christopher
From 7 to 13 July 2015, the Arbitral Tribunal held the first hearing in the arbitration between the Republic of Philippines and the People’s Republic of China in connection with their dispute in the South China Sea. The arbitration was submitted by the Philippines on 22 January 2013, pursuant to the compulsory dispute settlement provisions under part XV of the United Nations Convention on the Law of the Sea (UNCLOS). A five member ad hoc tribunal was constituted under annex VII of UNCLOS and sat in the Peace Palace, the headquarters of the Permanent Court of Arbitration, in the Hague. While the hearing was not open to the public, the Tribunal permitted the governments of certain states (Indonesia, Vietnam, Japan, Thailand and Malaysia) to send small delegations as observers.
The arbitration concerns disputes between the Philippines and China in relation to their maritime entitlements in the South China Sea. China has continued to reiterate its position of non-acceptance of (and non-participation in) the arbitration, maintaining that it believes in resolving disputes in the South China Sea via bilateral negotiations and that the arbitration violates previous agreements between the two states. The Philippines has sought to challenge this position at the hearing, submitting that they have pursued a course of bilateral and regional diplomatic efforts to resolve its disputes with China for almost two decades without success. The Philippines says that this has left no recourse other than arbitration.
In its Statement of Claim, the Philippines relies on UNCLOS which, it submits, defines and limits the entitlements of coastal states to a territorial sea, exclusive economic zone (EEZ) and continental shelf (and sets out states’ rights and obligations within those areas). In particular, the Philippines relies on provisions that provide that a state’s EEZ cannot extend beyond 200 nautical miles from its mainland coast (or any island over which the state has sovereignty) (article 57), and that its continental shelf extends to the same distance (unless it can be established that the state’s continental margin extends beyond that distance) (article 76).
According to the Philippines, China contravenes these provisions by claiming, on the basis of its nine-dash line, ‘historic rights’ to areas that are beyond its 200M limit, including some areas that fall within 200M of the coasts of the Philippines’ main islands. While China is a signatory to UNCLOS (which enabled the Philippines to commence the compulsory arbitral proceedings), it claims that it does not subscribe to some of its tenets.
However, the purpose of the first hearing was not to decide the Philippines’ substantive claims, but to decide whether the Tribunal has jurisdiction over these claims and whether they are admissible.
The Philippines’ substantive claims
At the hearing, the Philippines outlined the principal substantive claims that it intends to pursue if the Tribunal decides the question of jurisdiction in its favour. They can be summarised as follows:
- China is not entitled to exercise its alleged ‘historic rights’ over the waters, seabed and subsoil beyond the limits of its entitlements under UNCLOS. Its nine-dash line, insofar as it purports to define the limits of China’s ‘historic rights’, is not supported by international law;
- The various maritime features relied upon by China to assert its maritime claims in the South China Sea are not islands (as China claims) but are either ‘rocks’ (within the meaning of article 121, paragraph 3 of UNCLOS), ‘low tide elevations’ or are permanently submerged. While rocks generate an entitlement to a territorial sea of 12M (allowing China to exercise sovereignty over that area), they cannot generate an entitlement to an EEZ or continental shelf beyond that limit (and low tide elevations generate no entitlements). China’s significant construction activities on various maritime features cannot change their nature in law;
- China has breached UNCLOS by interfering with the Philippines’ exercise of its sovereign rights and jurisdiction; and
- China’s fishing practices have damaged the marine environment in the South China Sea, including within the Philippines’ EEZ, in breach of UNCLOS. UNCLOS requires states parties to adopt measures to protect the marine environment.
The jurisdictional question
In a position paper published in December 2014 (see also a summary of the paper here), China contended that the Philippines’ claims are beyond the scope of the Tribunal’s jurisdiction because they require the Tribunal to make determinations on territorial sovereignty and the delimitation of sea boundaries.
China made three interrelated claims in support of this contention. First, it claimed that UNCLOS does not give the Tribunal jurisdiction to address territorial sovereignty-related questions. According to China, in order to decide any of the Philippines’ claims, the Tribunal would be required to determine, directly or indirectly, the territorial sovereignty over various maritime features in the South China Sea, which is beyond the scope of UNCLOS.
Secondly, it claimed that in 2006, pursuant to article 298 of UNCLOS, China opted out of compulsory arbitration on particular categories of disputes, including those relating to sea boundary delimitations. Article 298(1) provides that, when signing or ratifying UNCLOS (or any time thereafter), a state may opt out of compulsory arbitration with respect to particular categories of disputes, one of which relates to sea boundary delimitations. Article 298(a)(i) then provides that, when such a dispute arises and no agreement within a reasonable period of time is reached in negotiations, the opted out party must accept, at the request of the other party, submission of the matter to conciliation.
The Philippines has not requested that the parties participate in conciliation pursuant to article 298(a)(a) presumably because, as discussed below, its position is that the dispute does not concern sea boundary delimitations and therefore has not been ‘opted out of’ by China.
The Philippines’ position
At the hearing, the Philippines submitted that its claims do not require the Tribunal to make determinations on the question of territorial sovereignty or the delimitation of sea boundaries (its statement is available here). It emphasised that the Tribunal is really being asked to do the following:
- To clarify the nature of the disputed features in the South China Sea (ie, whether they are rocks, islands or low-tide elevations) that are relied upon by China to assert its claims, because the features’ characterisations determine whether they can be appropriated by China or can generate their own 200M EEZ; and
- To examine the validity of China’s nine-dash line based on its ‘historical rights’.
According to the Philippines, the question to be determined by the Tribunal on this issue, therefore, is whether UNCLOS allows a state to claim maritime entitlements based on ‘historic’ rights beyond those provided for in UNCLOS.
Accordingly, a key issue in the dispute is whether it is possible for the Tribunal to make determinations about the nature of particular maritime features and their entitlements, without addressing who actually exercises sovereignty over those features. The Tribunal will also need to consider whether it can determine the validity of the nine-dash line without addressing sovereignty over any of the maritime features within the area delimited by the line.
On a higher level, the Philippines painted the case as being a test of the utility and feasibility of UNCLOS compulsory dispute resolution mechanisms. Emphasising China’s ‘aggressive and disconcerting’ activities in the South China Sea, the Philippines contended that the dispute resolution mechanisms give weaker states the opportunity to ‘challenge the powerful on an equal footing’ on the belief that ‘law triumphs over force’. On this basis, according to the Philippines, a finding that the Tribunal lacks jurisdiction to hear its claims would render the UNCLOS dispute resolution mechanisms almost valueless for small states parties vis a vis their more powerful neighbours.
Notwithstanding the Philippines’ contentions concerning the case’s significance to the international community, the jurisdictional questions facing the Tribunal turn on the characterisation of the Philippines’ substantive claims and, in particular, whether they involve the determination of questions of territorial sovereignty.
The Philippines now has until 23 July 2015 to provide supplementary written submissions in response to questions posed by the Tribunal at the hearing. The Tribunal expects to determine the issue of jurisdiction by the end of the year. If it decides that it does have jurisdiction over the Philippines’ claims (and they are admissible), the matter will proceed to a substantive hearing. However, China has reiterated that it will not alter its position in the South China Sea and, therefore, is unlikely to comply with any unfavourable ruling ultimately made by the Tribunal.
Lea Christopher is a lawyer at Clayton Utz in Canberra. The views expressed in this article are solely her own.
The decision of the Arbitral Tribunal (at the Permanent Court of Arbitration) in Chagos Marine Protected Area Arbitration (Mauritius v United Kingdom) has been eagerly awaited. This is not only because of the critical substantive issues at stake, but also because of the significant jurisdictional matters that the Tribunal has had to address that may influence the operation of an important international dispute settlement regime into the future.
The arbitration was heard before an ad hoc arbitral tribunal constituted under the UN Convention on the Law of the Sea (UNCLOS), which issued its Award on 18 March 2015 (Award). The President of the Tribunal was Professor Ivan Shearer AM and the other members were Sir Christopher Greenwood (appointed by the UK), Rudiger Wolfrum (appointed by Mauritius), Albert Hoffman and James Kateka. Judges Wolfrum and Kateka appended a dissenting and concurring opinion to the Award (Dissenting and Concurring Opinion).
The substantive questions before the Tribunal concerned, among other things, the legality of the UK’s declaration of a marine protected area (MPA) off the Chagos Archipelago, which is located in the middle of the Indian Ocean. Also at issue was the UK’s entitlement to declare such an area as the lawful ‘coastal state’ given that Mauritius has a reversionary title to sovereignty.
The jurisdictional issues related to the possible scope of the compulsory dispute settlement regime enshrined in UNCLOS. The Tribunal considered whether (or when) questions relating to territorial sovereignty could fall within the jurisdiction of a court or tribunal constituted pursuant to the UNCLOS dispute settlement regime. The approach of the Tribunal on these issues will have significance for a pending arbitration that the Philippines has instituted against China, also under the UNCLOS compulsory procedures.
In instituting proceedings against the UK under UNCLOS, Mauritius sought declaratory relief to the effect inter alia that the UK was not entitled to declare an MPA or maritime zones off the Chagos Archipelago because it was not the ‘coastal state’. It was also argued that the MPA was incompatible with the substantive and procedural requirements under UNCLOS in relation to fishing rights held by Mauritius and regarding the protection and preservation of the marine environment (Award, ).
Jurisdiction to resolve territorial sovereignty disputes under article 288 of UNCLOS
The UK challenged the jurisdiction of the Tribunal, arguing that some of Mauritius’ claims did not fall within the terms of article 288 of UNCLOS. Article 288 provides that a court or tribunal:
[s]hall have jurisdiction over any dispute concerning the interpretation or application of this Convention which is submitted to it in accordance with this Part.
The UK further argued that exceptions to jurisdiction under article 297, which include fisheries disputes in the Exclusive Economic Zone, also applied.
It is the arguments and discussion around the interpretation of article 288 that are of most interest in considering the implications for jurisdiction when there is a dispute that also concerns contested territorial sovereignty. The UK submitted that the question of its sovereignty over Chagos was at the heart of the dispute and that it was illegitimate for Mauritius to represent that its claims related primarily to the interpretation or application of UNCLOS (Award,  – ). Mauritius argued that a review of the drafting history of the dispute settlement regime indicated that UNCLOS negotiators had considered the question of contested sovereignty but had not reached consensus on an explicit exclusion (Award, ). As such, it could not be concluded that questions of sovereignty were inherently beyond the jurisdiction of a tribunal operating under UNCLOS (Award, ).
Both states further considered the systemic implications of their respective positions. The UK argued that there was a ‘grave danger’ for abuse in endorsing the position of Mauritius (Award, ), whereas Mauritius thought the dispute settlement regime would be strengthened. For Mauritius, to decline jurisdiction would ‘exacerbate the dispute, to prolong it unnecessarily, and to signal that Part XV serves to perpetuate a colonial era dispute such as this one’ (Award, ).
To resolve this issue, the Tribunal considered that it must first determine whether the nature of the Mauritian claim concerned territorial sovereignty, and if so, then decide to what extent it could resolve such a claim ‘as a necessary precondition to a determination of rights and duties in the adjacent sea’ (Award, ). In responding to the first question, the Tribunal determined that the claims concerning the UK’s status as the ‘coastal state’ of the Chagos did indeed relate to land sovereignty over the Archipelago (Award,  –  and  – ). In assessing whether it had jurisdiction to resolve this question, the Tribunal considered that the lack of attention in the drafting history would have more likely reflected the view that:
[n]one of the Conference participants expected that a long-standing dispute over territorial sovereignty would ever be considered to be a dispute “concerning the interpretation or application of the Convention”(Award, )
The Tribunal concluded that where the real issue in a case did not concern the interpretation or application of UNCLOS then a tribunal or court constituted under article 288 would have no jurisdiction over that claim (Award, ).
While the Tribunal did not have jurisdiction in respect of the questions pertaining to territorial sovereignty, it unanimously determined that it did have jurisdiction with respect to the Mauritian claim that the UK’s declaration of the MPA was incompatible with its obligations under UNCLOS. In this respect it was held that the UK had breached its obligations under UNCLOS.
The jurisdictional questions in the decision could be significant for the Philippines v China arbitration. In that case, the Philippines has asked an ad hoc arbitral tribunal constituted under UNCLOS to consider inter alia whether various features in the South China Sea are rocks, islands or low-tide elevations to determine their differing entitlements to maritime zones. The ownership of these features is also disputed between the Philippines and China. Unlike the Mauritius v UK case, however, the Philippines has explicitly stated that it is not asking the Tribunal to resolve questions of territorial sovereignty. However, in a paper released from the Chinese Ministry of Foreign Affairs, China has argued that this case squarely concerns questions of contested territorial sovereignty and therefore falls outside the jurisdiction of the UNCLOS dispute settlement regime. It should be noted that China has otherwise refused to participate in the arbitration and that this position paper is the only documentation from China responding to the Philippines’ claims.
The critical issue in Philippines v China, as with Mauritius v UK, is how the case is characterised. Is it possible to make determinations about the maritime entitlements of certain islands, rocks or low-tide elevations without knowing which state owns those features? I have argued elsewhere that it is, in my view, impossible to separate any consideration of entitlements from the question of who is so entitled. What is the point of knowing that there are sovereign rights to fish within 200 miles of an island if it is not known which state has those sovereign rights? The territorial sovereignty dispute is the real heart of the problem in Philippines v China.
Judges Kateka and Wolfrum dissented from the majority in Mauritius v UK in so far as it was held that there was no jurisdiction to resolve this territorial sovereignty claim within the UNCLOS regime. They instead considered that the majority had read an additional, implicit limitation into the dispute settlement regime (Dissenting and Concurring Opinion,  – ). This criticism does not strike me as warranted, however, because the Tribunal was instead answering the question of whether or not the dispute was one relating to the interpretation or application of UNCLOS. The determination that a dispute does not concern the interpretation or application of UNCLOS is simply an application of article 288 rather than the creation of a new exception.
Yet while I personally support the finding of the majority on this point, it must be observed that Judge Wolfrum is the appointed judge of the Philippines in the Philippines v China arbitration and is apparently amenable to arguments that the UNCLOS dispute settlement regime can encompass territorial sovereignty disputes. It will be interesting to see whether another ad hoc arbitral tribunal grapples with a similar, albeit not identical, issue.
Exchange of Views
A further important lesson from Mauritius v UK relates to the interpretation of article 283 of UNCLOS, which requires parties in dispute to ‘proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means’. The Tribunal emphasised that this obligation was one that:
[r]equires the Parties to exchange views regarding the means for resolving their dispute; it does not require the Parties to in fact engage in negotiations or other forms of peaceful dispute resolution. As a matter of textual construction, the Tribunal considers that Article 283 cannot be understood as an obligation to negotiate the substance of the dispute (Award, )
As such, article 283 does not necessitate that a party specify any particular claim it makes under UNCLOS in the course of those exchanges, as the UK had argued.
China has raised an objection to jurisdiction based on article 283 in its position paper, taking a similar position to the UK that the Philippines had not sought to exchange views on the claims that were ultimately presented to the arbitral tribunal. While this argument was already unconvincing – given undoubted attempts to resolve the outstanding issues between the parties – the Mauritius v UK decision has reinforced the Philippines’ position that its many efforts to resolve the dispute do reflect an exchange of views for the purposes of Article 283.
Although Judges Wolfrum and Kateka argued that the Tribunal was effectively changing the balance achieved at the Third UN Conference on the Law of the Sea in respect of dispute settlement (Dissenting and Concurring Opinion, ), arguably their views favouring a determination of contested territorial sovereignty would take the UNCLOS dispute settlement regime to a broader set of disputes than its drafters anticipated. In holding that the UK had failed to give due regard to the rights of Mauritius in establishing the Chagos MPA, Mauritius v UK has shown that it is possible to make important contributions to the law of the sea and resolve complex questions that arise under UNCLOS. The Philippines v China arbitration may well do the same if it assesses the legality of China’s so-called nine-dash line as a claim to maritime entitlement from mainland China. But the ongoing viability and effectiveness of the UNCLOS dispute settlement regime will be best enhanced if jurisdictional decisions do not involve a reach into areas that do not properly concern the interpretation or application of that Convention.
Natalie Klein, Professor and Dean, Macquarie Law School; Vice-President of the ILA (Australian Branch).