International Rules on the Use of Force: Implications for Russia + Ukraine, China + South and East Chinese Seas — Dr Alison Pert

14/10/201514/10/2015 Editors Articles

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.

ILA Event – International Rules on the Use of Force: Implications for Russia + Ukraine, China + South and East Chinese Seas – 20 August 2015

14/08/201514/08/2015 Editors Events

The ILA is pleased to announce that Dr Alison Pert will deliver a seminar which will cover the history and extent of the maritime territorial claims of China in this area, the competing claims from other states in the region, the arbitral proceedings brought by the Philippines, and the legal status of the islands being created or expanded through Chinese dredging and land reclamation.

Dr Pert will also briefly review the recent history of Russia’s intervention in Ukraine, focussing on the legal justifications advanced by Russia. In light of the status of Russia and China as permanent members of the UN Security Council, protected from Security Council censure by their veto power, Dr Pert will raise the question of the role of international law, and the UN Charter system of collective security in particular, in this new post-post-Cold War era.

The event will be held at 5.30 pm (for a 5.45 pm start), 20 August 2015 at Marque Lawyers, Level 4, 343 George Street, Sydney.

Please RSVP to Phoebe Saintilan ([email protected]) by 18 of August 2015.

A copy of the event flyer is accessible here.

ILA and Baker & McKenzie Event – ‘Sea Level Rise and International Law’ – 10 August 2015

03/08/201503/08/2015 Editors Events

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.

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

16/04/201526/08/2015 Editors Analysis, Articles

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).