Philippines v. China: The Endgame as Prelude
With the conclusion of the oral arguments on the merits phase last month, the arbitration initiated by the Philippines against China finally moves into the endgame. Although China was given one final opportunity until 01 January 2016 to submit comments on the arguments and evidence presented thus far, it is not expected to do so. The Tribunal has announced commencement of deliberations and that it will decide the case next year.
The procedural victory that the Philippines scored in the preliminary jurisdictional phase affirms the relevance of the United Nations Convention on the Law of the Sea to the South China Sea disputes especially with respect to its maritime aspects. The tribunal has determined that the 2002 Declaration of Conduct and similar regional agreements are not obstacles to the resort to Annex VII arbitration, and that to do so there is no need for prior negotiations on every specific issue brought for arbitration. Unilateral resort to arbitration on an issue that has not been resolved by the parties despite years of negotiations is not considered an abuse of rights in international law. China's insistence that such unilateral resort contravenes the coastal States' right to choose the means by which it should settle disputes has been dispensed with.
The finding of jurisdiction also validates the Philippine approach of separating the maritime disputes that emerge on the marine waters from the sovereignty disputes over land features. This dispenses with China's position that sovereignty over the islands in the SCS is at the core of the disputes, and that the SCS disputes cannot be resolved without also addressing the claims to the islands themselves. Issues of maritime entitlements (i.e., whether or not features are entitled to maritime zones) are indeed separate and distinct from issues of delimitation of overlapping entitlements, and it is possible to decide disputed claims that do not involve overlapping entitlements. Moreover, the disputes over China's claim to the largest entitlement, that of "historic rights" to the SCS as represented by the infamous nine dashed lines map, have been squarely identified as an issue of interpretation and application of UNCLOS, and therefore fully open to resolution by arbitration.
In all, seven Philippine submissions have been adjudged to be fully within the jurisdiction of the tribunal. Four of these claims involve a determination of only the maritime entitlements of the features currently occupied by China; two concern the legality of Chinese measures against Philippine ships near Bajo de Masinloc (Scarborough) and Ayungin (Second Thomas) shoals; and one deals with the legality of Chinese resource exploitation in and around them. The jurisdictional ruling over seven other claims have been reserved for later determination with the merits. Of these, two concern the nature and legality of China's claims in the SCS, represented by its nine dashed line map; one is on the question of whether Panganiban (Mischief) and Ayungin shoals are part of the Philippine exclusive economic zone and continental shelf (EEZ/CS); three involve the legality of Chinese activities in the Philippine EEZ/CS, and the last deals with the legality of China's activities around Ayungin shoal. The tribunal also sought clarification on one final claim, which the Philippines later described during the arguments on the merits as a claim for China to comply with its duties to protect and preserve the marine environment in the SCS and to exercise exercise rights and freedoms in the SCS with due regard to those of the Philippines, all in accordance with UNCLOS.
The tribunal's exercise of jurisdiction at the preliminary phase is an important signal to all SCS claimants and the rest of the international community: The dispute settlement mechanisms under UNCLOS Part XV retain their relevance to the resolution of the SCS disputes, and are a viable means of addressing at least some of its tangible manifestations such as interference in petroleum exploration, dangerous usage of ships, and destruction of the marine environment. The framing of the issues as purely maritime disputes, separate from the sovereignty issues over the islands and rocks, theoretically enables arguments and evidence to be presented, and issues to be resolved, on matters exclusively involving coastal State duties and obligations within the territorial sea, EEZ, continental shelf, and high seas.
From a substantive point of view, however, the seizure of jurisdiction does not necessarily translate into an eventual victory: the Philippines still must ensure that it delivers the appropriate arguments and evidence on the merits. The possibility that the tribunal may eventually still decline jurisdiction on the specific reliefs sought was signalled several times in the jurisdictional award. China's substantive objections to the tribunal's jurisdiction remain for careful consideration in the merits phase. Numerous caveats or qualifications are stated by the tribunal to be determinative of their final ruling.
The first, and most important, of these caveats pertain to the characterization and undertanding of China's claim to the SCS, particularly the basis upon which the claim is made, and the extent to which it applies. The tribunal points out specifically that the merits of some of the Philippine submissions "would be dependent on the nature of [China's claimed] historic rights and whether they are covered by the exclusion from jurisdiction over 'historic bays or titles' in Article 298" of UNCLOS (Award [Jurisdiction], para 398-399). The Philippines must therefore persuade the tribunal, based on evidence, precisely what appear to be the scope of China's claims to the SCS on the basis of "historic" rights, and that such claims do not fall within the strictures of "historic bays or titles" that are per se beyond the tribunal's jurisdiction. The second caveat is that in identifying the parties' rights and obligations and resolving the issues, the tribunal will "consider the maritime zones generated by any feature in the SCS claimed by China, whether or not such feature is presently occupied by China" (Award, para. 153). This indicates that the tribunal is minded to determine the nature of all contested features in the SCS, not just the eight that are occupied/controlled by China, and all of their prospective maritime zones, in deciding whether or not particular activities or incidents controvene international law. This is consistent with the Philippines' position that who has sovereignty over the features is irrelevant to the disputes brought for resolution, but it also means that features not mentioned in the Philippines' case (e.g., those occupied by Taiwan and Vietnam) may still end up having a significant impact when the tribunal deals with the merits of each and every incident or claim. Most telling is the tribunal's cautionary note that
"...if any maritime feature in the Spratly Islands constitutes an 'island' within the meaning of Article 121 of the Convention, generating an entitlement to an exclusive economic zone or continental shelf, it may be the case that the Philippines and China possess overlapping entitlements to maritime zones in the relevant areas... the Tribunal may not be able to reach the merits of certain of the Philippines' submissions... without first delimiting the Parties' overlapping entitlements, a step that it cannot take." (Award, para. 392)
This highlights the importance of Itu Aba, the largest island in the Spratlys. If the tribunal decides that it could be entitled to its own EEZ or continentals shelf, no matter how small it may eventually compare with any other EEZ or continental shelf zones, the tribunal may be minded to stop consideration of any and all Philippine claims concerning a contest between EEZ or continental shelf rights within 200 nautical miles of Itu Aba. This is to be expected since it cannot take the intermediate step of delimiting the boundaries between overlapping entitlements in order to rule on the legality of specific incidents that may lie astride such prospective boundaries. The area affected covers the entire maritime area of the Kalayaan Island Group, up to and including Reed Bank. Thus the maritime disputes' manifestations in this very large area could remain unaffected either way by the arbitration, leaving only the northern sector of the Philippine EEZ, including northwestern Palawan and Bajo de Masinloc, with a little bit more legal clarity.
Finally, the tribunal notes that the merits of certain Philippine claims may depend on whether the Chinese activities complained of are either law enforcement or military in nature, and whether they are located inside or beyond the territorial sea of the nearest land feature (Award, para. 395-396). These claims pertain to specific incidents and activities, such as the reported ramming and use of water cannon against Philippine fishing vessels, and interference with Philippine resupply activities supporting the various contingents and outposts held by the Philippines.
A perusal of the Philippines final claims reveals that they may be categorized into five principal kinds of claims, against each of which the various caveats will apply. These claims concern or involve:
1. the nature and legality of China's claims in the SCS (represented by the infamous nine dashed lines);
2. the maritime entitlements of specific features occupied or controlled by China, which may be classified into two:
2.1. features with no entitlements (Mischief Reef, Ayungin Shoal, Subi Reef, Gaven Reef, and McKennan Reef); and
2.2. features with territorial seas but no EEZ/CS (Bajo de Masinloc, Johnson South, Fiery Cross, and Cuarteron Reef);
3. the legality of China's assertive actions against Philippine vessels/activities in the vicinity of certain features; these may be further divided into:
3.1. activities the legality of which depend on the maritime zone in which they take place (regarding interference with Philippine exploration and exploitation activities within its EEZ/CS or around Bajo de Masinloc, and Chinese activities within Mischief Reef including reclamation);
3.2. activities the legality of which are independent of the maritime zone in which they take place (involving the duty to preserve and protect the marine environment in Bajo de Masinloc and Ayungin Shoal, and the China's operation of its law enforcement vessels in a dangerous manner that places Philippine vessels at risk of collision);
4. China's aggravation and extension of the dispute through its actions interfering with Philippine activities around Ayungin Shoal; and
5. China's compliance with UNCLOS, particularly to render due regard and to respect the legal rights and freedoms of the Philippines, including compliance with the general duty to protect and preserve the marine environment in the SCS.
Comparing the above list with the caveats mentioned by the tribunal, it may be seen that the caveats impact particularly upon the 2nd and 3d categories, and the tribunal's decisions thereon will turn on three fundamental issues: (a) the nature and scope of China's claims in the SCS, represented by the nine dashed lines; (b) whether there is an overlapping maritime entitlement due to a nearby feature being entitled to an EEZ and continental shelf of its own; and (c) the nature of the Chinese activity complained of and its location in relation to the as yet-undetermined maritime zones of nearby features. The last two issues particularly require a delineation of at least the potential maritime zones around all identifiable features, and accurate location of the incidents complained of within the resulting delineation. Afterwards, the tribunal will then decide to entertain the Philippines' specific claims or not.
The first category concerning the nature and legality of China's claims is a central issue of the SCS disputes, not only for the Philippines but also for the rest of the Southeast Asian claimant States. The tribunal will analyze the issue in two steps: first, on a more theoretical level, it will answer the question of whether and to what extent maritime claims based on historic rights may still hold currency since the entry into force of UNCLOS; second, on an applied level, whether China's actual claims to the SCS comprise claims that exceed those permitted under UNCLOS. A ruling on this issue will directly depend on how well and persuasively the Philippines can describe or portray China's claims to the tribunal. It is no surprise that the hearings on the merits appear to have devoted the most time to these issues.
The fourth category of claims deal with the legitimacy of China's actions after the arbitration had been commenced, especially those in the area around Ayungin shoal such as the interference with the resupply of the outpost on the derelict BRP Sierra Madre, and destructive fishing in and around the shoal. These claims are narrowly focused around China's conduct around Ayungin shoal after the arbitration case was initiated, and is ultimately about what should be deemed justifiable and acceptable State conduct pending settlement of its maritime disputes. The key is to determine whether or not such conduct tends to cause permanent damage or prejudice to the rights of the Philippines.
The final category appears to be a general claim for China to act in accordance with UNCLOS; it is the result of the clarification offered by the Philippines at the hearings on the merits. In fine it is a call for give due regard to the Philippines in its exercise of sovereigh rights and jurisdiction, i.e. for China to not act in an exclusionary manner that is practically denying the Philippines access to the portion of the SCS that it now calls the "West Philippine Sea."
The hearing on the merits were conducted and concluded in the closing week of November 2015, and the tribunal thus appears to be on track for a decision within the first half of 2016. Both the Award on jurisdiction and subsequent press releases of the tribunal indicate that it is taking a well-paced, systematic, and conventional approach to the analysis and resolution of the case. The legal track taken by the Philippines against China in the SCS disputes is therefore set to conclude and close, likely coinciding with the transfer of leadership with the coming Philippine elections in 2016. Due to the exclusion of the contending sovereignty claims over the islands, and the presence of numerous caveats that could still result in certain claims being found to be outside the tribunal's authority to resolve, the maritime disputes between the Philippines and China are almost certain to continue to challenge the conduct of relationships between the two States.
The endgame to the case acts as a prelude to a new geo-political and geo-strategic seascape, already coalescing due to China's high-handed response to the legal challenge to its claims and its perplexingly counter-productive geopolitical calculations, and likely to firm up in the decision's aftermath. Given the paucity of diplomatic options under current conditions, the Philippines and China are probably on the rails in their respective geopolitical trajectories in the absence of a major breakthrough in statesmanship, diplomacy, and dispute management in the SCS.
To date, the biggest beneficiaries of the case are the Southeast Asian claimant States, who have clearly been accorded a legal defensive option against China's more intrusive and troublesome assertions of its claims throughout the area of the nine dashed lines. They may hold this legal option in reserve as leverage for greater concessions in their respective dealings with China, or utilize it to break similar negotiating deadlocks to narrow the scope of their respective disputes.
As for the Philippines, its options for the future lie in the hands of the arbitral tribunal, and the next administration will have to start from scratch, figuratively and literally, in rebuilding and reformulating its relationship with China on this especially vexing issue. The tribunal's decision will establish the foundation for that future relationship; whether it presents the Philippines with more or less options in dealing with China, and greater or lesser flexibility in addressing the disputes, are questions for which the Philippines can only answer definitively in 2016.
Jay L. Batongbacal is an Associate Professor of UP College of Law and Director of the Institute for Maritime Affairs & Law of the Sea.