Some lessons from Mauritius v UK for Philippines v China – Natalie Klein

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, [158]).

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, [169] – [174]).  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, [179]).  As such, it could not be concluded that questions of sovereignty were inherently beyond the jurisdiction of a tribunal operating under UNCLOS (Award, [178]).

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, [198]), 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, [201]).

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, [206]).  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, [207] – [212] and [229] – [230]).  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, [215])

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, [220]).

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, [37] – [45]).  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, [378])

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.

Concluding remarks

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, [45]), 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).

 

Legal Mechanisms to De-escalate Tension in the South China Sea – Hitoshi Nasu

The recent tension over the South China Sea, involving multiple parties in Southeast Asia, has raised concerns for the potential outbreak of an ‘inadvertent war’. As the claimants attempt to consolidate their claims, bolster their strategic position and exploit energy resources in disputed areas, there is potential for maritime incidents to recur, with the associated risks of escalation into a major outbreak of warfare. The United States Secretary of Defense, Chuck Hagel, highlighted this risk at the May 2014 Shangri-La Dialogue when he stated that:

in recent months, China has undertaken destabilizing, unilateral actions asserting its claims in the South China Sea. It has restricted access to Scarborough Reef, put pressure on the long-standing Philippine presence at the Second Thomas Shoal, begun land reclamation activities at multiple locations, and moved an oil rig into disputed waters near the Paracel Islands.

Arbitral proceedings, commenced by the Philippines against the People’s Republic of China (PRC), are unlikely to result in any form of settlement, given the PRC’s outright refusal to participate in the proceedings. Rather, they have the potential to exacerbate the dispute, depending on how the arbitration tribunal handles the proceedings.

The regional efforts to manage the dispute have focused upon negotiations towards the adoption of a legally binding Code of Conduct. Indeed, the ASEAN Foreign Ministers once again agreed in August 2014 on the need for a legally binding Code of Conduct in the South China Sea. While adopting such an instrument may have political significance, does the legally binding status of an agreement make any difference in preventing an ‘inadvertent war’ in the region?

A mutual undertaking of restraint by the disputing parties has already been agreed upon at the policy level — expressly provided in the Declaration on the Conduct of Parties in the South China Sea (DOC) adopted in 2002 — between ASEAN member states and the PRC. It confirms in paragraph 4 that ‘[t]he Parties concerned undertake to resolve their territorial and jurisdictional disputes by peaceful means, without resorting to the threat or use of force’, which is merely re-affirming their existing legal obligations under articles 2(3) and 2(4) of the UN Charter.

While the DOC also refers to the Parties’ commitment to ‘exercise self-restraint in the conduct of activities that would complicate or escalate disputes’ in paragraph 5, it does not clearly set out what conduct is considered to constitute an activity that would complicate or escalate disputes. In the absence of a clear, mutual understanding of prohibited conduct through practical guidelines for example, the disputing parties may simply engage in ‘lawfare’ by justifying their military action with reference to legal concepts favourable to their position, such as sovereignty, the right of self-defence and freedom of navigation. Although scholars and policy makers appear to consider that the adoption of a legally binding Code of Conduct will somehow improve the situation, it is doubtful whether any concrete set of practical guidelines can be produced through political and diplomatic processes.

In this respect, the new Code for Unplanned Encounters at Sea (CUES), adopted at the 14th Western Pacific Naval Symposium held in Tsingtao in April 2014, could be of greater significance. Based on the Convention on the International Regulations for Preventing Collisions at Sea, CUES offers safety measures and procedures, a basic communications plan and manoeuvring instructions for when naval ships and aircraft encounter each other unexpectedly. They are expected to provide a much needed de-escalation mechanism.

CUES is limited in its ability to prevent maritime incidents in situations where, for example, one navy deliberately chooses to act in a way that irritates or threatens another: a destroyer locks its fire control radar on another, or one navy vessel observes the military exercises of another. Nevertheless, the successful adoption of CUES amidst rising tensions in the Asia-Pacific signifies room for negotiations towards a wider range of mutual understandings of prohibited conduct in the South China Sea, designed to avoid misunderstanding as to what might be considered as a threat or a hostile act and intent in manoeuvring vessels in the area.

The best way forward to deal with such highly politicised disputes is to remove political actors as much as possible from the negotiating tables in producing a concrete set of practical guidelines on prohibited conduct in the South China Sea.

Hitoshi Nasu is Senior Lecturer, ANU College of Law, and Co-Director, Center for Military and Security Law (CMSL) and Australian Network for Japanese Law (ANJeL)

ILA Committee Update: Committee on International Cultural Heritage Law – Patrick J. O’Keefe and Lyndel V. Prott

The Committee on International Cultural Heritage Law (Committee) was established by the Executive Council of the International Law Association (ILA) at the 63rd Conference in Warsaw in 1988. The previous year, we had written to the then Chairman of the Australian Branch, Rodney Purvis, proposing the creation of the Committee. Rodney supported the idea wholeheartedly and went through the necessary steps to have it placed on the agenda for the Warsaw meeting. At that meeting, Patrick was going down in the lift at the conference hotel when Ian Brownlie, then Director of Studies, entered and announced that the Executive Council had recommended establishment of the Committee and that he, Patrick, had been nominated as Chairman. He asked for a recommendation of Rapporteur – to which Patrick suggested Jim Nafziger of Willamette University in Oregon – and a topic – to which Patrick proposed the preparation of a Draft Convention on the Protection of the Underwater Cultural Heritage. Both proposals were endorsed by the ILA in due course.

Patrick and Jim began work on the Draft Convention at the same time as the Committee was being formed. The Committee worked hard for the next four years, engaging with subject matter which was very controversial and involved complex issues of public and private international law. The United Nations Law of the Sea Convention contained two provisions – Articles 149 and 303 – relating to archaeological and historical objects at land and sea which were generally considered confused and inadequate. The Committee had to find solutions more effective than these. For example, it proposed that there be a “Charter” – developed by the International Council on Monuments and Sites (ICOMOS) – to govern archaeological investigations. The Charter would be attached to the Draft Convention and enforced by states using nationality and port-state jurisdiction. Provisions on the movement of unlawfully excavated material were included. The Draft Convention was adopted by the 66th Conference at Buenos Aires in 1994.

The ILA has consultative status with UNESCO, the major international organisation with responsibility for cultural matters. The Draft Convention was forwarded for consideration to UNESCO which had just decided to make protection of underwater cultural heritage a priority topic. UNESCO and the United Nations Division of Ocean Affairs and Law of the Sea took the Draft Convention and used it as a basis for their own working document. This was debated by states during four negotiating sessions in Paris before being adopted as the Convention on the Protection of Underwater Cultural Heritage in 2001 with 87 states in favour, four against and 15 abstentions. As at January 2015, there were 48 States Parties. Patrick attended all negotiating sessions as an observer and Jim was frequently present, when he could leave his post in Oregon. Without the work of the ILA there may not have been a UNESCO Convention on the subject.

Following work on the Draft Convention, the Committee has undertaken a number of significant projects. One was a Blueprint’ to guide research, progressive development and codification of the cultural heritage law. It was felt that when a problem arose a state often tried to devise a solution without looking to see what other states had done in similar circumstances. Comparative studies might not provide a solution but they could give guidance. In particular they could assist the development of law in a logical manner rather than a series of ad hoc decisions as a reaction to particular crises. The studies were published as a symposium in (2004) 9 Art Antiquity & Law. They do not form a single blueprint for action, but provide a set of suggestions and designs for reform and development of international cultural heritage law in the early years of the twenty-first century.

Patrick resigned as Chairman in 2002. Jim was appointed in his place and Bob Paterson from the University of British Columbia in Vancouver became Rapporteur. The Committee continued with its work.

In times of great disaster people often want to keep their national treasures free from harm, even if this means sending them to a foreign country. Famous examples from around the time of World War II include the Crown and regalia of St. Stephen of Hungary (sent to USA); the tapestries from Cracow Castle in Poland (sent to Canada) and Picasso’s Guernica (sent to USA before the War but kept there at Picasso’s request as long as General Franco remained in power). In all these cases there was conflict over when and how the objects should be returned. More recently, the rise of the Taliban in Afghanistan brought to the fore fears concerning the safety of Afghan cultural heritage in foreign countries. There were moves to acquire these objects and keep them in a secure place until they could be safely returned to responsible authorities in the country. The great danger with this approach is that it could encourage illicit traffic in such objects if those responsible know they have a market.

The ILA Committee proceeded to draft a set of Guidelines for the Establishment and Conduct of Safe Havens for Cultural Material, including a Safe Haven Model Contract (adopted at the 73rd Conference, Rio de Janeiro, 2008). It covers not only the Afghan type of situation but also those where cultural material has been removed from its normal location due to natural disasters such as earthquake. Under the Guidelines, a safe haven ‘shall not engage in any activity the result of which would be to stimulate illegal trafficking in cultural material or other threats to it.’ Material is to be returned when there is a bona fide request. However, and this is a controversial clause, the safe haven must be satisfied that the entity making the request is capable of fulfilling ‘conditions for safekeeping and preserving the material.’ In the three cases from World War II specifically mentioned above, return was controversial because of the political persuasion of the requesting state. The Guidelines are intended to be incorporated into the operating rules of international organisations, ranging from the World Bank to museums and other relevant entities.

Another international convention is in the making with the Draft Convention on Immunity from Suit and Seizure for Cultural Objects Temporarily Abroad for Cultural, Educational or Scientific Purposes. This was adopted by the ILA at the 76th Conference, Washington, April 2014. The Draft was to be distributed to, inter alia, the United Nations, UNESCO, the Hague Conference on Private International Law, the European Union and the Council of Europe.

This topic raises complex political and legal issues. Many cultural objects have a disputed ownership history. People have had their prized possessions lost or seized as a result of war, social unrest or societal change. The owner (or his or her heirs) later finds the object in a foreign state and begins legal proceedings for its return. Complexities arise when the object of concern is on public display in the foreign state. The Preamble to the Draft Convention states that cultural objects ‘in light of their special importance, should be treated differently under international law from other objects.’ In particular, rules on immunity from seizure should apply to facilitate ‘the mobility of cultural objects’ and overcome ‘the reluctance of lenders to send their cultural objects into a foreign jurisdiction where they might be subject to some form of judicial seizure.’ The Draft Convention had to balance protecting the security of loans against the need to guard against assisting illicit traffic. It attempts to do this by emphasising that the object must be only temporarily in the receiving state. This is defined as not more than five years from the time the object enters the state. During this time no order can be issued preventing its return. Moreover, its presence in the state shall not form the basis for any legal process.

The Committee has long been interested in the legal rules governing the transfer of cultural objects. For example, it produced a set of Principles for Cooperation in the Mutual Protection and Transfer of Cultural Material which was adopted by the ILA in 2006 at the 72nd General Conference. This emphasised what the Committee saw as the ‘need for a collaborative approach to requests for transfer of cultural material, in order to establish a more productive relationship between and among parties.’

In 2014, Jim Nafziger and Bob Paterson edited a volume entitled Handbook on the Law of Cultural Heritage and International Trade, published by Edward Elgar. This contains 20 specialised state reports by local experts (Craig Forrest wrote the one on Australia) plus a general chapter on international trade; one on human rights and export controls; another on export controls on objects of foreign origin and finally one setting out a ‘legal pluralist approach to international trade in cultural objects’.

The Committee’s newest project is to prepare a set of guidelines or recommendations on landscapes as cultural heritage pertaining to indigenous groups. The project will involve a series of detailed examples of landscapes significant to indigenous cultures and an identification of issues related to those landscapes in the context of corresponding indigenous understandings and national legal systems.

The original concept of the Committee was that of a body which produced high quality research into particular subjects, but also used the results to advance selected areas of international law through publications, guidelines and draft conventions. This would seem to have been achieved. The challenge continues to be delivering the Committee’s work to those with the means and the enthusiasm to implement it.

Patrick J. O’Keefe and Lyndel V. Prott are members of the Committee on International Cultural Heritage Law. Patrick was founding Chairman of the Committee, and is former Adjunct-Professor of law at ANU. Lyndell is former Director of UNESCO’s Division of Cultural Heritage and former Professor of Cultural Heritage Law at the University of Sydney.

The key documents of the Committee can be found here.