SOUTH CHINA SEA Situation of Maritime Territorial Disputes in Asia-Pacific

TABLE OF CONTENTS

Introduction

Le Thi Kim Thanh …………………………………………………………………………………………………………………………………………….…. 4 Part I: UPDATE SITUATION IN THE SOUTH CHINA SEA Situation of maritime territorial disputes in Asia-Pacific

Nguyen Giang ……………………………………………………………………………………………………………………………………………………. 6 Philippine kowtowing foreign policy on the South China Sea dispute: A threat to regional peace

Neri Colmenares …………………………………………………………………………………………………………………………………………….… 11 Updating situation in the South China Sea

Le Dinh Tinh …………………………………………………………………………………………………………………………………………….…………. 20 Part II: LAW ENFORCEMENT IN THE SOUTH CHINA SEA Philippines v. China: Rulings and legal implications

Jay L. Batongbacal ……………………………………………………………………….…………………………………………………………….. 23 Role of international law for the settlement of territorial disputes - Focusing mainly on the means of settlement

Yoshiro Matsui ………………………………………………………………………………………………………………..……………………………….… 26 Different peaceful resolution mechanisms under Article VI of the UN Charter and other dispute resolution mechanisms under international law

Erik Franckx ……………………………………………………………………………………………………………………………………………..………… 44 Part III: PEACE INITIATIVES FOR THE SOUTH CHINA SEA Proposals on possible forms, mechanisms, or methods of the peaceful resolution

Erik Franckx …………………………………………………………………………………………………………….……..………………….……...……… 54 Enforcement of the Philippines v. China Arbitral Award through De-polarization and State Socialization into a Rules-Based Regime in the South China Sea

Frank Lloyd B. Tiongson …………………………………………………………………………………………………………………………….. 64 Conciliation under Annex V, UNCLOS: A potential dispute settlement measure for complex disputes relating to law of the sea

Vo Ngoc Diep …………………………………………………………………………………………………….………………………………..……….…….. 73 Multilateral Management of the South China Sea Dispute

Yamagata Hideo ……………………………………………………………………………………………….……………………………………………… 78 Conclusion

Le Thi Kim Thanh ………………………………………………………………………………………………………………………………….……… 91

Part IV: USEFUL LINKS 1. UN Charter: http://www.un.org/en/sections/un-charter/un-charter-full-text/ 2. UN Convention on the Law of the Sea 1982: http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf 3. Award on Jurisdiction and Admissibility of the Arbitral Tribunal, 29 October 2015: https://pcacases.com/web/sendAttach/1506 4. The South China Sea Arbitration Award of 12 July 2016: https://pcacases.com/web/sendAttach/2086

Editor-in-chief/éditrice en chef: Evelyn Dürmayer The International Review of Contemporary Law is a email: [email protected] dig- ital legal journal published by IADL. It does not www.iadllaw.org follow the mainstream, but instead analyzes legal questions in their cultural, economical, political and IADL, International Association of Democratic Lawyers, social context. is a Non- Governmental Organization (NGO) with consultative status to ECOSOC and represented at ©2018 International Association of Democratic Lawyers

UNESCO and UNICEF. The IADL was founded in 1946 by a gathering of lawyers who had survived the war against fascism and participated in the Design: Le Khac Quang – Vietnam Lawyers Association Nuremberg Trials.

The South China Sea, as shown in the Tribunal‘s Award on Jurisdiction and Admissibility, (October 29th, 2015) 3

INTRODUCTION Le Thi Kim Thanh “…the Tribunal concludes that, as Southeast Asia to East Asia. More than between the Philippines and China, 90% of the world's commercial shipping China‟s claims to historic rights, or other travels by sea and 45% of it goes through sovereign rights or jurisdiction, with the South China Sea. It is projected that respect to the maritime areas of the South 90% of Middle Eastern fossil fuel exports China Sea encompassed by the relevant will go to Asia by 2035.3 The importance part of the „nine-dash line‟ are contrary to of these waters and their geopolitical the Convention and without lawful effect significance cannot be underestimated. to the extent that they exceed the The South China Sea disputes date back geographic and substantive limits of centuries. More recently, simmering China‟s maritime entitlements under the disagreements over South China Sea Convention. The Tribunal concludes that waters unleashed a chain of armed the Convention superseded any historic conflicts between China and neighboring rights or other sovereign rights or countries by the end of the 20th century. jurisdiction in excess of the limits imposed Tensions reached a new height after the therein” 2012 incident known as the Scarborough The South China Sea Arbitration Shoal standoff, where China had Award of 12 July 2016 - Section effectively occupied the disputed island. V(F)(d)(278) Political unrest and a series of incidents together with China‘s reclamation ***** activities in the Spratlys and militarization Hosting one-third of global shipping all over the South China Sea later brought traffic that accounts for $5.3 trillion in the region to a political boiling point. total trade1, the South China Sea is one of the world‘s busiest sea routes. As home to In 2013, after having ―exhausted all political and diplomatic avenues for a 11 billion barrels of oil and 190 trillion2 cubic feet of natural gas, this resource-rich peaceful settlement of its maritime region is vital not only to the livelihoods of disputes with China,‖ the Philippines filed coastal states but is also critical for the an arbitration case against the Peoples import and export economies of many Republic of China under Annex VII to the 1982 United Nations Convention on the countries, including Japan, South Korea, Taiwan, Singapore and China. This is an Law of the Sea (UNCLOS). On July 12, essential oil and commercial resources 2016, the Permanent Court of Arbitration, transport route from the Middle East and constituted under Annex VII, ruled in favor of the Philippines, concluding that

 Vice President of Vietnam Lawyers Association 1 Source: The White House 2 Source: U.S. Energy Information Administration 3 Source: International Energy Agency 4

China had ―no historical rights‖ based on held two international conferences to the ―Nine-Dash Line‖ map. discuss the impact of the 2016 ruling and The International Association of how it could provide a basis for peaceful Democratic Lawyers (IADL), since its resolution of the South China Sea founding in 1946, has advocated for the disputes, despite China‘s objection to the goals of the UN Charter. IADL has actively ruling. endeavored to promote peace in the South In this issue of the Review, the editorial China Sea for a long time. IADL board presents selected articles, speeches considered the 2016 ruling an opening to and reports from both conferences, achieve a peaceful resolution of the divided into three categories: dispute, particularly in light of the court‘s 1. Developments in the South China Sea conclusion regarding the entitlements of since the court‘s ruling in 2016; various maritime features in the Sea and China‘s claim with respect to the Nine- 2. The rule of law in the region and Dash Line. infringement of the court‘s ruling in the South China Sea; and In January 2017 in Japan, and September 2018 in Russia, IADL, with the support of 3. Peaceful resolutions of and initiatives to the Japanese Lawyers for International resolve the disputes in the South China Solidarity (JALISA) and Russia‘s Sea. International Fund ―The Way for Peace‖,

PART I UPDATE SITUATION IN THE SOUTH CHINA SEA SITUATION OF MARITIME TERRITORIAL DISPUTES IN ASIA- PACIFIC

Nguyen Giang Ladies and gentlemen, it is an honor to Paracel islands, Vietnam still maintains its speak in front of IADL members because claim over the islands. you are experts of international law. I The Spratly islands on the other hand have would also like to thank the organizations multiple claimants Vietnam and China here who gave me a chance to speak. claim the whole Spratly and the My presentation focuses on the overview Philippines claims some part of the island. on maritime territorial disputes in South The same with Malaysia, Brunei and China Sea. I also intend to discuss Taiwan. For the status of the occupation, maritime disputes after the arbitration Vietnam is now occupying 21 features award in July that was mentioned by the while China occupies seven; the distinguished professor from the Philippines, nine; Malaysia, five; and, Philippines in his presentation. I would Taiwan, one. also discuss other relevant issues in the For the overlapping maritime dispute, I South China Sea such as the incidents on would like to emphasize that after the fishing, oil and gas, land reclamation arbitration, the picture of the maritime activities, and the possible militarization disputes has changed. But, the territorial of the islands. I would also present the disputes have not been changed because position of my country and other the arbitration cannot touch on the issue interested parties in the South China Sea. I of sovereignty. No court can solve the look forward to your comments and territorial dispute if there is no consensus contributions to the presentation. among the parties involved.

First, on the territorial disputes in the Before the arbitration in July, there are South China Sea is on the Paracel islands, multiple 200-nautical mile circles of the which is a subject of a bilateral dispute Exclusive Economic Zone (EEZ) from the between Vietnam and China. China islands overlapping with each other, and currently occupies the whole Paracel with EEZ of coastal States. There is also an islands. Even though we do not occupy the overlapping of the Nine-dash line claim by China with the 200-nautical mile exclusive zone of coastal States. This is the picture of the South China Sea before the  Subject Matter Expert and Researcher arbitration. As you can see, it is Bien Dong Institute for Maritime Studies, Vietnam complicated given the several maritime 6 disputes that are potential sources of From the pictures you can see the conflict. potential circles of 200-nautical mile of

After the arbitration award on July 12, the EEZ in the disputed islands in the 2016, the dispute here has been reduced South China Sea. It is now narrowed down and the potential for conflict is greatly to 12 nautical miles of territorial sea. The eased. maritime overlapping areas are now limited to dispute rocks in the sea only. Because a no ―high tide‖ feature in the There are no maritime overlapping areas Spratlys was agreed upon similar to the among islands and the 200-nautical mile islands with 200-nautical mile of EEZ, and EEZ of the coastal States. The areas of because, they are rocks with only 12- maritime disputes in the South China Sea nautical miles of territorial sea, therefore, are now smaller, thus, the potential for there are less overlapping maritime areas conflicts has been reduced. in the South China Sea. The arbitration award also ruled that As we go into the details of the Award we China violated the sovereign rights of the see some key issues. The first one Philippines and its traditional fishing concerns the nine-dash line claim. The rights in the Scarborough Shoal. Also, award stated that China‘s claim to historic China‘s land reclamation has damaged the rights to the resources with this nine-dash marine environment in the South China line is incompatible with the UNCLOS Sea. China violated the Safety of Sea and because it is compatible with the rights of risks collision when it did not follow the coastal State to have 200 nautical mile UNCLOS and International Regulations exclusive economic zone provided under for Preventing Collisions at Sea (Colregs). the UNCLOS. These are the key elements of the arbitral It is important for all the States to comply award. The award is a significant with the UNCLOS in claiming their rights international law since it becomes a source in the sea. When a State agreed to sign the of law and precedent for other similar UNCLOS, it is bound to accept all the cases. For this arbitration, it becomes regulations provided therein. important for the regime of islands. For The second point is on the status of the the first time, the tribunal clearly defined islands. The court decided that no feature and explained in detail of the difference on the Spratly has EEZ of 200 nautical between rock and islands that is also a miles; they are rocks not islands. The precedent for other cases and in the feature applies individually and settlement of disputes in the future. collectively. The Spratlys cannot have an In the case of Vietnam, even before the EEZ because the Spratlys cannot be arbitration award, Vietnam already sent a considered as an archipelago. note to the Tribunal. Viet Nam stated it

7 upholds the Tribunal's jurisdiction, had been the biggest and longest conflict rejected the claim of the nine-dash line by between Vietnam and China. The incident China and maintains its sovereign rights took two and a half months, from May 1 to and interest over the South China Sea. July 15, 2014. There was a high level of After the tribunal announced the award on mobilization of protective forces from both July 12, 2016, Vietnam government issued countries. Although, China mobilized a statement supporting the settlement of more than hundred civilian law the dispute in the South China Sea by enforcement and military vessels and peaceful means, including the legal and aircrafts into the disputed area. a low level diplomatic processes. Vietnam also of force was used in the oil rig incident. emphasized the principle that the parties China used water cannons to attack Vietnam‘s Coast Guard vessels. Vietnam‘s must refrain from the use of force in the South China Sea in accordance with the law enforcement and fishing vessels were UNCLOS. Vietnam likewise reaffirmed its hit and damaged because China used sovereign right over the Paracel and the bigger and stronger vessels. One Spratly islands, including other rights in Vietnamese fishing vessel sunk and a accordance with the UNCLOS. That is number of law enforcement vessels broke Vietnam‘s position. down. The views of other countries on the Vietnam only dispatched civilian vessels to Arbitral Award are on the website of protect the maritime area without the Asian Maritime Initiative where their intention of escalating the conflict. But, position before and after the ruling is China had military vessels and aircraft to presented. There are countries that called show force and threatened to use that for the award to be respected and force. considered it binding. Other countries Vietnam stands by its position that the oil acknowledged the ruling while some were rig HYSY 981 and other Chinese vessels neutral in their statements. are within Vietnam‘s EEZ and continental The pictures (insert picture) here indicate shelf. Chinese activities violated the the many activities and incidents which UNCLOS of 1982, violated the Declaration arose in the South China Sea and in the of Conduct (DOC) agreement not to escalate the tension and violated the areas within the EEZ of Vietnam. Vietnam-China basic agreement on the First, the biggest incident is the oil rig settlement of maritime disputes. Vietnam HYSY981 of China that was dispatched to requested China to withdraw the vessel. Vietnam‘s EEZ in May 2014. The location of the oil rig was 119 nautical miles from Second, are the incidents related to Vietnam‘s EEZ and 17 nautical miles from fishing activitie? There are a number of the Triton rock of the Paracel Islands. This incidents in the area where Vietnamese 8 fishing boats, and some Filipino fishing accommodate the modern navy vessels vessels, were accosted by China, and and even modern submarine. Radar and confiscated fishing equipment. But the other kinds of telecommunication can area is a traditional fishing area of serve the information warfare. These Vietnam fishermen. Until now, China‘s facilities may be used in modern combat. annual fishing ban, which started in 1999, The Mischief Reef, Subi Reef and is still an issue. Fierycross Reef were constructed with The map (insert map) here indicates the helipads, hangars, 3000-meter airstrips, areas covered by the fishing ban: Hainan, radars and other facilities for the Paracel islands up to 12th Parallel telecommunication. The airstrips are long North that also includes the EEZ of enough for the use of tactical combat jet Vietnam. During the ban, fishing fighters and modern bombers. The equipments of fishermen are confiscated construction and reclamation of islands in by China‘s law enforcement agency. the Spratlys can serve as bases for modern Vietnam strongly protests the ban because military equipment that help China to is it a serious violation of Vietnam‘s cover the whole area. The new artificial Vietnam‘s territorial right over the Paracel islands and facility build-up by China have islands and Vietnam‘s Exclusive Economic changed the balance of power in the area Zone. China's action violates international overwhelmingly in China's favor. law, especially the UNCLOS 1982 and the There are also signs of militarization in the spirit of DOC. South China Sea. On February 2016, China Aside from the issue of fishing activities, deployed 32 HQ-9 missiles on the Woody there is also the issue of land reclamation Island in the Paracels. On March 2016, and the potential for the militarization of China again deployed YJ-62 missiles on the islands in the South China Sea. At the Woody Island. In December 2016, present, China has reclaimed seven there was a report that China there are features in the Spratlys. They are Subi, anti-aircraft guns and anti-missiles Cuateron Reef, South Johnson Reef, defense point on some of the artificial Mischief Reef, Hughes Reef, Gaven Reef islands of the Spratlys. These are some of and the Fiery Cross Reef, with a total area the recent developments in the South of about 13 kilometers. China's land China Sea. There could be more incidents reclamation activities are the biggest and in the Sea when facilities installed on the fastest in the region. Some of these islands become sufficient. I say this reclaimed areas have facilities to because it concerns the aviation. Will accommodate modern military equipment China declare the Air Defense such as the 3000-meter airstrip for jet Identification Zone (ADIZ) in the South fighters. The deep water harbor can China Sea? In East China Sea, China

9 already declared the ADIZ in 2013 and the peaceful means of settling the disputes possibility of enforcing ADIZ in the South that involve multiple parties.

China Sea is always open. China‘s military For Vietnam and the Philippines, third foreign affairs spokesperson said, "China party settlement is an option. The has the right to establish ADIZ in South Philippines has already chosen that option China Sea." Also, the spokesperson of and Vietnam is also open to that China‘s Ministry of Defense stated, ―China possibility. will establish other ADIZ at an appropriate time after completing preparations.‖ After Vietnam has a claim on the Spratly and the arbitration award, China‘s Vice the Paracel islands on legal and historical Foreign Minister Liu Zhenmin said Beijing bases. Vietnam supports peaceful could declare an air defense identification settlement of disputes based on zone over the waters if it felt threatened. international law, particularly that of UNLCOS. Vietnam favors to settle the China, as the biggest power in the region, dispute bilaterally with China, in the case would like to use asymmetric power to of the Paracel islands; and for the Spratlys, settle the disputes and ignore the which involve multiple parties, though jurisdictional means. China proposed the multilateral negotiations with parties approach of bilateral negotiations and involved. consultation with each claimant in the South China Sea-no multilateralization, no In the interim, while seeking a permanent internationalization and no third party resolution to the disputes, Vietnam settlement of the disputes. supports the management of disputes through increased confidence-building On the other hand, the smaller claimants and cooperation measures. Vietnam in among the Association of Southeast supports the implementation of the Asian Countries (ASEAN), would like to Declaration Of Conduct (DOC) in the avoid asymmetric power by going through South China Sea and in the crafting of the multilateral approach in the settlement of Code of Conduct (COC). disputes. The multilateral negotiations and the use of third party is viewed as a I have come to the end of my presentation. Thank you very much for your attention.

PHILIPPINE KOWTOWING FOREIGN POLICY ON THE SOUTH CHINA SEA DISPUTE: A THREAT TO REGIONAL PEACE

Colmenares Neri Javier “International Conference on the Current the contested area and further emboldens Dispute on the South China Sea: it to aggressively resist any efforts at Proposals for Dispute Resolution” amicable resolution as its powers grow in September 21, 2018 disparate proportion to the other disputants. Moscow, Federation of the Russian Republic The current SCS foreign policy of the Philippine Government is composed of “I‟ll go down, riding a jet ski, carrying a three main postures: Filipino flag … and then I would say, „This is ours, and do what you want with me. (1) Kneel or War posture - It is incorrect “I would stake that claim, and if they to stand by the South China Sea Arbitral (China) want to [kill me], you know, I Award favorable to the Philippines have the ambition of being a hero too” because it is tantamount to going to war with China (Pres. Duterte during his presidential campaign, April 27, 2016 on how he (2) No Protest Posture - Protesting will stake Philippine claim in the against or opposing China‘s continued South China Sea Dispute) expansion through island reclamation and deployment of military weapons and “That was a Joke” (Pres. Duterte, materiel will only escalate the tension, and March 1, 2018)

Not only was the above foreign policy (3) Trade and Aid in exchange of statement of Pres. Rodrigo Duterte a bad sovereign rights posture - Bilateral joke, but it was the wrong and dangerous negotiations between China and the way of resolving the South China Sea Philippines, with emphasis on ―joint‖ dispute had it not been a joke. exploration, is the most effective means of resolving the dispute. This paper posits that the Pres. Duterte‘s foreign policy on the South China Sea This paper contends that this foreign policy increases the power disparity (SCS) dispute is, on deeper contemplation, a threat to regional peace as it only among disputants, it is not sustainable escalates the tension instead of diffusing and in fact only escalates the tension it. It essentially entrenches a disputant in between China and the other disputants, as well as, encourages or justifies the intervention of non-disputant countries  Former Congressman, Chairman, National Union such as the United States who are of Peoples Lawyers (NUPL), Philippines

11 concerned with the growing power of On September 10, 2016 the shift was China in the disputed area thereby further firmed up when Pres. Duterte laid complicating matters. the justification of his ―kneel or war‖ The peaceful resolution of the dispute foreign policy when he explained that requires an approach that strongly “there are only two options there: You go demands a cessation of expansion of any to war and pick a fight, which we cannot disputant and the demilitarization of the afford at all, or talk and appeal to the area, while actively pursuing a multilateral humanity of the fellow in front of you‖. approach involving the disputants within In December 2016 Pres. Duterte, through the framework of the search for a peaceful Sec. Yasay, practically signaled China that resolution of the dispute. its continued militarization in the disputed areas can continue without Philippine The Shift to “Kowtowing” Foreign opposition: Policy: Sacrificing Regional Peace and Philippine Sovereign Rights for Loans Yasay on China's deployment of and Grants military equipment in Spratlys: 'There

The Philippine foreign policy signifies a is nothing that we can do about that major shift towards which is best now' [CNN December 17, 2016] described in the this paper as a Following China's confirmation that it has ―kowtowing‖ foreign policy as it practically deployed military equipment on the and needlessly bends backward, if not Spratly Islands, Philippine Secretary of kneel before China, despite its supposedly Foreign Affairs Perfecto Yasay said on moral and legal superiority arising from Friday that the Philippines "cannot stop its arbitration victory. China at this point in time." However, he The first signal of this major shift came on added that the country "will continue to the very day the Arbitral Award favoring pursue peaceful means at which all of these can be prevented." the Philippines came out when Pres. Duterte, through his Foreign Affairs "[T]here is nothing that we can do about Secretary Perfecto Yasay, declared on July that now, whether or not it is being done 12, 2016 that ―our experts are studying for purposes of further militarizing these the Award with the care and facilities that they have put up‖.1 thoroughness that this significant arbitral outcome deserves. We call on all those concerned to exercise restraint”. Said 1 CNN Report-CNN Philippines, ―Yasay on Chinas statement may expectedly come from a Deployment of military equipment in Spratlys‖, Dec. 17, 2016 CNN Philippines, losing disputant but that was a very weak http://cnnphilippines.com/news/2016/12/17/Yasa and tentative statement from a winning y-on-Chinas-deployment-of-military-equipment- litigant. in-Spratlys.html, 12

This ―no protest‖ posture of the 'not directed at us', Al Jazeera, May 4, Philippines has a major impact on the 2018]2 increasing militarization of the disputed The real basis for this major foreign policy area considering that it comes from a shift, however, is actually hinged on the country who was the winning party in the promised loans and other bilateral aid South China arbitration case. While other from China. The March 9, 2017 statement disputants could have actively protested of Pres. Duterte announcing China‘s the increasing militarization, the fact that commitment to give Philippines US$ 10 the Philippines itself refused to protest Billion gave a not so cryptic message that Chinese expansion took the wind out of this foreign policy shift was based on any active opposition from other economic trade offs: disputants. ―I thank China profusely, and they have The Philippines ―no protest‖ posture was really lightened up the economic life of our taken to the hilt when it justified its country. So let me publicly again thank refusal to oppose China‘s deployment of President Xi Jinping and the Chinese missiles in the disputed area with a weak people for loving us and giving us enough and absurd justification—the missiles were leeway to survive the rigors of economic not directed at the Philippines: life in this planet,‖ [Pres. Rodrigo Duterte Philippines 'confident' Chinese March 9, 2017]3 missiles 'not directed at us' China‘s Foreign Minister Wang Yi The Philippines is "confident" that the responded positively to this statement missiles China recently deployed in the declaring that the Philippine-China South China Sea, including in one reef relations have returned to the right path declared by a tribunal in The Hague as and that ―cooperation on infrastructure part of Filipino territory, are not directed projects, including roads, bridges and at Manila, a spokesman of President Rodrigo Duterte has said. "With our recently developed close relationship and friendship with China, we 2 Al Jazeera News, ―Philippines confident Chinese are confident that those missiles are not missiles not directed‖, May, 2018 directed at us," Harry Roque said on https://www.aljazeera.com/news/2018/05/philip Friday, in a statement described by critics pines-confident-chinese-missiles-directed- as the "weakest possible response". 180504101427158.html [Philippines 'confident' Chinese missiles 3 Manila Bulletin, ―Duterte: China helped boost Ph economy‖, March 9, 2017, https://news.mb.com.ph/2017/03/09/duterte- china-helped-boost-ph-economy-cites-trade-hike- project-financing/. 13 dams, is being actively discussed, with reshaping Philippine posture on the South some becoming operational this year”.4 China Sea dispute.

More than being merely based on loans Bilateral Negotiations: Joint and grants, however, Pres. Duterte later Exploration added a surprisingly candid admission While joint exploration with China has that one trade off was China protecting been previously mentioned, this line of Pres. Duterte from domestic opposition: action was officially announced by Pres. MANILA (UPDATE) - President Rodrigo Duterte in the middle of 2018: Duterte on Tuesday said Chinese PH, China may sign agreement on President Xi Jinping gave him assurances joint exploration in West PH Sea that he would not let him get ousted, as „anytime‟- Palace By: Nestor Corrales - the Filipino leader again touted Manila INQUIRER. net / 03:34 PM August 09, and Beijing‘s blooming ties under his 2018 leadership. The joint exploration between the “The assurances of [President] Xi Jinping Philippines and China in the West were very encouraging… ‗We will not allow Philippine Sea (WPS) could be signed you to be taken out from your office, and ―anytime‖ before, or even during the visit we will not allow the Philippines to go to of Chinese President Xi Jinping to the the dogs,‘‖ Duterte quoted Xi as Philippines, Malacañang said on 5 saying [ABS CBN May 15, 2018] Thursday.

No self-respecting leader of a sovereign The visit of Xi to Manila is scheduled country will admit to encouraging foreign before the end of 2018 or after Xi attends intervention to protect his political the Asia-Pacific Economic Cooperation fortunes—except Pres. Duterte. More (APEC) in November this year. importantly, the inclusion of personal Presidential Spokesperson Harry Roque motivation as a factor in the Kowtowing Foreign Policy, only shows the difficulty said Foreign Affairs Secretary Alan Peter that will be encountered by efforts at Cayetano discussed the joint exploration of natural resources between Manila and Beijing in the West Philippine Sea during 4 Xinhua.net, ―China, Philippine relations the Cabinet meeting on Monday. return to right path: FM”, March 8, 2017,http://www.xinhuanet.com/english/2 Asked about the time frame for the signing 017-03/08/c_136112358.html of the agreement on joint exploration, 5 Placido, Dharel. ABS-CBN News “Duterte: Roque said it was not ―expressly stated‖ China won‘t let me get ousted‖, May 15, during the Cabinet meeting. ―No time 2018,https://news.abs- cbn.com/news/05/15/18/duterte-china-wont-let- frame po. But of course, because of the me-get-ousted impending visit of President Xi, I would 14 say that it is anytime between now and exploration ended a few months after this visit of President Xi, but it was not petition was filed when the Philippines did expressly stated as such,‖ he said in a not renew the Agreement as a result of the palace briefing. Petition and the growing opposition Roque explained that the Philippines will among Filipinos against such an enter into ―a bilateral agreement that undertaking. would enable the joint exploration to Due to the increasing possibility of the happen.‖6 revival of another joint exploration and The idea of joint exploration with China Pres. Duterte‘s shift to the Kowtowing 8 came as a shock to many in the Philippines Foreign Policy, the author , filed a Motion especially since many feared that such asking the Supreme Court to resolve the action could endanger the Philippine petition, to wit: victory in the arbitral award, and more ―It has been eight (8) years since importantly, could escalate the tension in petitioners filed the instant case, six 6) the disputed area. Additionally, there is a years after the case has been submitted for pending case filed before the Philippine decision, and two (2) years after the filing Supreme Court asserting that the joint of the first Motion for Resolution, hence explorations with China should be this second Motion for Immediate declared unconstitutional. Resolution; x x x

The Petition against the Joint Marine 5. Petitioners believe that the Honorable Seismic Undertaking (JMSU) Court has to render its decision and On May 21, 2008 a petition was filed by resolve the issues now, most specially in Bayan Muna against what it claimed as light of the most recent transgressions of China‘s violation of the Philippine China against our sovereignty and Constitution and sovereignty through an territory; x x x unequal and corruption ridden joint 6. There has been reported aggressive exploration deal during the term of then reclamation activities and building of President Gloria Arroyo.7 The joint artificial islands by China at the Spratly groups of islands, in the process scarring our reefs and generally damaging the

6 Corrales, Nestor. Philippine Daily Inquirer,‖PH- ecosystem around and between the China may sign agreement on joint exploration‖, islands; Aug. 9, 2018, https://newsinfo.inquirer.net/1019514/ph-china- may-sign-agreement-on-joint-exploration-in-west- Atty. Neri Colmenares who was then the General ph-sea-anytime-palace#ixzz5QxA6yI6Z Counsel of Bayan Muna. 7 Bayan Muna vs. Pres. Gloria Arroyo, G.R. No. 8 The author is the current Chairman of Bayan 182734, Philippine Supreme Court. It was filed by Muna, who filed the petition. 15

7. Also reported were landing of military China‘s artificial island building in the planes on airstrips built by them, as part disputed area. Unless the Supreme Court of China‘s military build-up in the area, will resolve this Petition in favor of Bayan seen as a form of provocation and Muna, the threat of another joint aggression on their part; exploration may become a reality soon.

8. There are reports as well of escalating Kowtowing Foreign Policy: poaching activities and driving away of our Escalating tension, a threat to local fishermen at the Scarborough Shoal peace by use of force, on top of plans for The current path undertaken by Pres. reclamation on the region; Rodrigo Duterte is a self-serving foreign 9. But the most alarming would be the policy that does not consider the test-firing of nuclear capable missile into complexity of the issue and the possible the West Philippine Sea, aggravating escalation of conflict. Allowing one further the already heightened tension in disputant to gain so much power in the the area and spreads a sense of terror in South China Sea will petrify its position our populace; and create obstacles to the search for a 10. Serious constitutional issues are raised peaceful but just solution to the dispute. in the petition, as respondents‘ The Philippines should have stood by its unconstitutional acts have grave claim to the area and the arbitral award repercussions on our national sovereignty, without necessarily resorting to war. natural resources, national economy and Other countries have stood firm on their patrimony, territorial integrity and claims but such position did not national interest.‖ The main problem with necessarily result to war. It is therefore the planned joint exploration, however, is possible for the Philippines to stand firm that other disputants will vigorously on its claim and the arbitral award without oppose such a bilateral deal which does necessarily going to war. Where Pres. not even seek a genuine resolution of the Duterte got his ‗kneel or war‖ analysis if dispute. Vietnam in fact, vigorously the Philippines insists on its position, protested against the first Joint China will invade country has not been Exploration under Pres. Gloria Arroyo. explained until now.

Any move by the Philippines to have joint The Philippines should have used a patrols and exploration or drilling multilateral approach to the issue by activities with China in the South China cooperating with other disputants to Sea could lead to a clash with the other actively search for a peaceful resolution of disputants. Worse, it will practically the dispute with China, without defang the arbitral award used by other abandoning their opposition to China‘s disputants to contest the escalation of militarization and expansion in the area. 16

The disputants could also rally other innocent passage is guaranteed," [Pres. countries and the international Duterte August 16, 2018]10 community who are also concerned with This statement was a follow up of Pres. freedom of navigation issues in the South Duterte statement in August 15, 2018 9 China Sea, to support efforts at peace. declaring that China should temper its If the Philippines pursue its current path, behavior to ensure peace in the region: it will not only make the search for a Beijing should 'temper' its behavior in peaceful resolution more difficult but the South China Sea, Duterte says could even escalate the conflict in the [CNN- Ben Wescott, August 15, 2018]11 region. It is imperative that the Philippines be convinced to abandon this Philippines President Rodrigo Duterte has called for the Chinese government to tone road and consider the interest of the Filipino people as well as peace and down its behavior in the South China Sea, stability of the region. warning ongoing tensions could spark an accidental conflict. Speaking Tuesday at People‟s participation in the efforts at the Malacanang Palace in Manila, Duterte peaceful resolution said the heavily-contested region could Pres. Duterte has not been swayed so far become a "flashpoint". "I hope that China by criticism from academics and would temper at least its behavior x x x" he politicians. However, he recently showed added. a degree of variation from his Kowtowing While Pres. Duterte‘s assertion for China Foreign Policy when he surprisingly to temper its behavior may not be that criticized China‘s warning of Philippine strong, it is something to build on. Pres. planes flying over the disputed area saying Duterte‘s acquiescence to China‘s military that "You cannot create an island and you build up is detrimental to the search for say that the air above the artificial island is peace. Any effort to deter the increasing your own. That is wrong. The right to militarization of the region will

10 ―After Duterte Tirade, China asserts right to warn plane‖, August 16, 2018, Rappler 9 It must be stressed that this kind of independent https://www.rappler.com/nation/209726-china- foreign policy strategy should not mean rejects-duterte-criticisms-plane-warnings-west- encouraging the United States to enter the fray, philippine-sea considering that the US has not been known for 11 Wescott, Ben. ―Beijing should tempter its respecting the rights of smaller countries as well. behavior on South China Sea, Duterte says‖, CNN, Ousting a bully in order to replace it with another Aug. 15, 2018 bully cannot be the cornerstone of the search for https://edition.cnn.com/2018/08/15/asia/duterte peace. -china-south-china-sea-intl/index.html 17 substantially contribute to the dispute‘s The poll results were released as the peaceful resolution. Philippines marked the second

The question is, why this sudden, albeit anniversary of its landmark 2016 victory minor, foreign policy variation? Pres. in the Permanent Court of Arbitration, Duterte was never deterred by criticisms which invalidated China's sweeping nine- from academics or the opposition. His dash line claim to the waters. slight change of tone was actually sourced China recently stepped up its from the groundswell of opposition to his militarization efforts in the disputed Kowtowing Foreign Policy from the waters, installing military-grade runways, Filipino people themselves. A survey hangars, hardened storage for conducted in June 2018 found that more ammunition, and retractable roofs for than 70% of the Filipinos want Pres. anti-cruise missiles, prompting the Duterte to assert the arbitral award: Philippines to beef up its force in the area.

Majority of Filipinos want Duterte to The survey found that 46 percent of assert sovereignty in West PH Sea: poll Filipinos strongly agreed that the Duterte [ABS-CBN News, Posted at Jul 12 administration must assert the court 2018]12 ruling while 27 percent somewhat agreed. MANILA - Seven out of 10 Filipinos want Only 3 percent strongly disagreed with the Duterte administration to assert asserting the court ruling, while 4 percent Manila's 2016 victory in an international somewhat disagreed. Seventeen percent, arbitral court and the country's meanwhile, were in the middle. Some 2 sovereignty over its exclusive economic percent of Filipinos said they do not have zone (EEZ) in the disputed South China enough knowledge of the issue to give an Sea, results of a survey released Thursday opinion, while less than one percent (0.4) showed. had zero knowledge of the matter.

A Pulse Asia poll conducted from June 15 Pres. Duterte who rode on a populist wave to 21 this year revealed that 73 percent of may have been concerned with this Filipinos believe that President Rodrigo overwhelming support for the arbitral Duterte should assert Manila's rights to award and the people‘s disagreement with the West Philippine Sea, the country's EEZ his Kowtowing Foreign Policy. This was within the contested waters. what may have triggered the fine tuning of his posture. After all, the opinion of more than seventy percent of the population 12ABS-CBN, ―Majority of Filipinos want Duterte to cannot be belittled. assert sovereignty‖, July 12, 2018, ABS CBN TV, https://news.abs-cbn.com/news/07/12/18/ This new development, therefore, shows majority-of-filipinos-want-duterte-to-assert- that any search for peace cannot be sovereignty-in-west-ph-sea-poll 18 undertaken without including the people courts or the legal or academic in the discourse. Since the people have conferences, but must be brought to the become a major factor in Pres. Duterte‘s streets and the communities. Peace foreign policy consideration, it is advocates must, therefore, support any imperative that raising their awareness on effort towards this end and grab the new the issue, ensuring their participation in arena that could succeed where others the discourse and harnessing them in the failed-forcing Pres. Rodrigo Duterte to search for peace must immediately be abandon his Kowtowing Foreign Policy in undertaken. In the Philippines, the order to contribute to the region‘s search debates must no longer be confined in the for peace.

UPDATING SITUATION IN THE SOUTH CHINA SEA: CUI BONO?

Le Dinh Tinh Overview architecture that can provide policy On surface, the South China Sea currently consultations and discussion for the looks calmer as compared to the time that resolution of regional issues, including the preludes the PCA ruling in 2016. The SCS. Other ASEAN-led institutions that undercurrent is, however, still strong and can be helpful include the ARF, ADMM, complicated. On the ground, the most ADMM-Plus, AMMTC, AMF and the distressing reality of is the land Expanded ASEAN Maritime Forum, and reclamation of islands and features, the joint studies on conservation and process of militarization and attempts to sustainable use of sea and maritime legalize the new status quo. The latest resources. AMM meeting in Singapore took note of - Of course, it takes two to tango, so role some of these concerns. by ASEAN partners is critical in this The SCS in the regional architecture regard. A divided ASEAN would weaken the Association‘s ability to contribute not - Security wise, at least, in the Asia Pacific only to the resolution of the SCS issue but region, ASEAN and its related also the building of a regional security mechanisms are pushing for cooperative architecture that benefits all. transborder peace and security with ASEAN being at the center of the evolving Traditional and emerging threats architecture. Up to date, the ASEAN-led - Along with the long-standing sovereignty institutions, though labeled by some as a and maritime disputes are challenges talking shop, offers the only venue that posed by non-traditional security discusses regional security from critical problems such as the degradation of issues like the South China Sea to the marine life and resources or other Korean peninsular to emerging threats, increasingly alarming environmental and that are able to bring to the table all issues. the important stakeholders. - As an example, the recent Joint - The East Asia Summit for one, including Communiqué of the 51st ASEAN Foreign ASEAN and 8 partners (Russia is one such Ministers‘ Meeting highlighted deep important partner) provides another concerns towards marine debris, significant avenue toward a security specifically plastic marine debris due to the threat it poses to marine biodiversity, human health, as well as the adverse  Deputy Director, Bien Dong Institute for Maritime effects it has on tourism and fishing Studies, Vietnam activities.

- Cooperation on dealing with such signs of speaking less about Tribunal emerging threats however is constrained rulings. by the difference in capacity, intention and - Enforcement remains a recurring theme modalities proposed by stakeholders. in international law. - Because of the changing nature of many - There has been some progress in of the challenges, the maritime domain no negotiations on the Code of Conduct longer looks the same. For example, there (COC), including ASEAN and China is no code of conduct for law enforcements agreeing unanimously on a single draft operating at seas while the need for negotiating text to lay the foundation, at maritime domain awareness (MDA) the same time emphasizing the becomes ubiquitous. The maritime importance of maintaining a conductive domain, very much like other operational environment for future discussions. and strategic fields, now also has an added However, due to the complexities, a dimension: cyber with the introduction potential delay and protracted path for the and proliferation of artificial intelligence, COC negotiation process cannot be ruled IOT, machine learning, unmanned aerial out. and submarine vehicle for intelligence gathering etc. in the background. It is - Pending a COC, a full and effective noteworthy that unmanned aerial and implementation of DOC in its entirety has submarine vehicle are still grey area of not been as expected. For example Para.5 international law, each party may have has not been duly observed to enforce self- their own understanding and restraint. The DOC itself has ambiguous interpretation of law regarding this issue. language that need to be fixed by another As a result, the proliferation and milestone document such as an effective deployment of those vehicles may place and legally binding COC. One of the the South China Sea in situations prone to ambiguities is it does not include a clear miscalculation and crisis. definition of the geographical scope that‗s necessary for managing behaviors. Legal issues and a possible effective and legally binding COC - Along the line of promoting a rules-based order, IMO conventions and other related - On the legal front, two years after the conventions such as SOLAS, CORLEGs, ruling of the Philippines v. China Arbitral CUEs have been increasingly discussed Tribunal, China has, on the one hand, and embraced. confuted and rejected the tribunal‘s ruling, and on the other hand taken several - Numerous provisional arrangements are measures to challenge the validity of the also suggested by track II and track I, case and justify its own case. pending the ultimate solution. - Meanwhile, the Rodrigo Duterte Responses and strategies by key Administration of the Philippines shows stakeholders

- National policies with regard to the SCS Projection of trajectory have changed profoundly on a number of - Issues discerning the South China Sea in issues. China is promoting its ―Belt and the coming time will continue to take on a Road Initiative‖, with the ―Maritime Silk complicated path because the root of the Road‖ as a part of it; while the United problem has yet to be solved. States is proposing its ―Free and Open Indo-Pacific Strategy‖. This put regional - If there continues to be an growing trend countries amid policy choices that might towards militarization, power politics and produce long-term consequential great power competition, the situation implications. could be pushed to a new level of tension, not excluding the potential of conflicts or - ASEAN has been doubling its efforts to collisions, be them accidental or assure its centrality and solidarity, deliberate. maintaining the discussions on the issue and aim to conduct substantial and - Without effective conflict prevention and effective COC negotiations with China. management mechanisms, littoral states will face greater risks than before, not to - Claimants have been proposing ideas and mention the threat for miscalculation taking actions they think are optimal to arising from the deployment of UAV and their respective national interests while USV. So COC is expected to include working on inter-state/regional/global conflict management measures? cooperative mechanisms, for example, on fishery or early harvest measures such as Conclusion hotlines to reduce the risks of accidents, Maintaining a strategic balance and self- misunderstandings and miscalculations. restraint that is beneficial to the common - Due to new recent developments and peace and stability in the region become varying degrees of interest, middle powers an imperative for all countries. Now more like Japan, Australia, India, South Korea, than ever, there emerges the necessity to Britain and France have shown greater construct a law-based order, including interests vis-à-vis the South China Sea mechanisms and ways forward for the issue, through both words and deeds. South China Sea issue. Such an order would call for respect for international - Against that background, many have law, including the 1982 United Nations called for the ―rules-based order‖ and Convention on the Law of the Sea. ASEAN, ―respect for international law‖ and peace, China and others could all this well stability, and freedom of navigation at sea together for the larger interests of the and over flight, maritime safety and regional and world community. To the security. In terms of actions, countries contrary, a diversion, exclusionary within and without the region have approach will benefit no one. stepped up presence in the South China Sea.

PART II LAW ENFORCEMENT IN THE SOUTH CHINA SEA PHILIPPINES V. CHINA RULINGS AND LEGAL IMPLICATIONS

Jay L. Batongbacal Introduction overview of the key rulings of the Annex Against most expectations, the Philippines VII tribunal and consider their legal made a clean sweep of nearly all of its Effects on China's maritime expansion Submissions in its UNCLOS Annex VII activities. arbitration case against China on 12 July Highlights of the Award 2016, and in doing so laid down China's Excessive Claims significant rulings that will undoubtedly reshape the discourse over the SCS The Tribunal definitively interpreted and disputes in the years to come. The five then struck down the most expansive of all broad categories of claims that the the various claims to the SCS: China‘s Tribunal decided in the Philippines‘ favor historic rights claims, as represented by establish the foundations for how the ―nine dashed lines‖ map. These interested States, whether principal historic rights claims allegedly existed claimants or affected users, should prior to and independently of the UN interact with each other pending the final Convention on the Law of the Sea and resolution of the SCS disputes. These purported to apply to the living and non- have had particularly restrictive legal living resources beyond the territorial sea implications for China and the recent of any islands or rocks but within the sea manifestations of its maritime expansion areas encompassed within the nine into the South China Sea, to the detriment dashed lines. In the eyes of the Tribunal, of the surrounding Southeast Asian based on the record of official statements coastal States. This paper carries out an in the past "China does not claim historic title to the waters of South China Sea, but rather a constellation of historic rights short of title."1 Furthermore, the Tribunal  Associate Professor, University of the Philippines College of Law; Director, U.P. Institute for "...understands, on the basis of China's Maritime Affairs & Law of the Sea. B.A. Political actions, that China claims historic rights Science, U.P. 1987; L.L.B., U.P. 1991; Ph.D., to the living and non-living resources in Dalhousie U. (Canada), 2010. Originally presented the waters of the South China Sea within at a small academic group meeting at Hosei University, August 2016. An edited version of this the 'nine-dash line', but that China does paper was submitted to the Center for Strategic not consider that those waters form part and International Studies, Washington DC, USA in October 2016. 1 Award, para. 229

23 of its territorial sea or internal waters exceeding the 12nm limit as specified in (other than the territorial sea generated by UNCLOS; islands). Such a claim would not be c. historic rights to the living and non- incompatible with the Convention in any living resources of the EEZ and areas where China already possesses such continental shelf within 200nm of China's rights through the operation of the land territory but not within the Convention. This would, in particular, be corresponding 200nm limits of other the case within China's exclusive coastal States in the SCS; economic zone and continental shelf. However, to the extent that China's claim d. historic claims to the living and non- to historic rights extends to areas that living resources beyond 200nm from its would be considered to form part of the land territory but within 200nm of other entitlement of the Philippines to an coastal States' baselines in the SCS; exclusive economic zone or continental e. historic claims to the living and non- shelf, it would be at least at variance with living resources beyond 200nm from its the Convention."2 land territory and not within 200nm of The above interpretation directly other coastal States' baselines in the SCS. addresses China's historical ambiguity and The Tribunal held that any and all historic refusal to clarify the nature of its claims as rights claims to waters beyond the represented by the nine-dash lines map. territorial sea or to living and non-living Rather than await China's own resources beyond 200 nm of China's coast, explanation, the Tribunal used as basis and within 200 nm of other coastal States, China's own varied and sometimes i.e., categories "d" and "e" above, were contradictory statements and allegations relinquished and abandoned by China in numerous diplomatic communications when it signed and ratified UNCLOS and in order to classify and interpret the claim. thereby agreed with the establishment of This permitted the Tribunal to measure the EEZ and continental shelf regimes in China's claimed historic rights against favor of all coastal States. According to the UNCLOS, dividing such claims into Tribunal, distinct geographic areas: "... the Convention is clear in according a. historic rights to land territory within sovereign rights to the living and non- islands and rocks in the SCS; living resources of the exclusive economic b. historic rights to the territorial sea zone to the coastal State alone. The notion adjacent to such islands and rocks, but not of sovereign rights over living and non- living resources is generally incompatible with another State having historic rights

2 Id., para. 232 to the same resources, in particular if such

24 historic rights are considered exclusive, as out the nature of the exclusive economic China's claim to historic rights appear to zone and continental shelf and the rights be. Furthermore, the Tribunal considers of other States within those zones. China's that, as a matter of ordinary claim to historic rights is not compatible interpretation, the (a) express inclusion of with these provisions. an article setting our the rights of other "The Tribunal considers the text and States and (b) attention given to the rights context of the Convention to be clear in of other States in the allocation of any superseding any historic rights that a excess catch preclude the possibility that State may once have had in the areas that the Convention intended for other States now form part of the exclusive economic to have rights in the exclusive economic zone and continental shelf of another zone in excess of those specified."3 State."4 The Tribunal therefore emphasized that The Tribunal noted that even China itself, "Insofar as China's relevant rights in the negotiations for UNCLOS, "was comprise a claim to historic rights to resolutely opposed to any suggestion that living and non-living resources within the coastal States could be obliged to share 'nine-dash line', partially in areas that the resources of the exclusive economic would otherwise comprise the exclusive zone with other powers that had economic zone or continental shelf of the historically fished in those areas."5 In Philippines, the Tribunal cannot agree addition, with this position. The Convention does "... China's position, as asserted during the not include an express provisions negotiation of the Convention, is preserving or protecting historic rights incompatible with a claim that China that are at variance with the Convention. would be entitled to historic rights to On the contrary, the Convention living and non-living resources in the supersedes earlier rights and agreements South China. to the extent of any incompatibility. The Convention is comprehensive in setting

4 Id., para. 246-247 5 Id., para. 251 3 Id., para. 243 25

ROLE OF INTERNATIONAL LAW FOR THE SETTLEMENT OF TERRITORIAL DISPUTES – FOCUSING MAINLY ON THE MEANS OF SETTLEMENT

Yoshiro MATSUI Introduction have not only legal, but also political, This Paper argues, mainly based on economic, cultural, national, historical jurisprudence of international courts and and the other aspects. China, for instance, tribunals, about role of international law stresses the historical development of the for the settlement of territorial disputes, South China Sea Problems (A White Paper including maritime disputes, and takes up published by the State Council its role of offering basis of settlement (I), Information Office of the People‘s its role of providing means for settlement Republic of China, ―China Adheres to the (II), and its role for management of Position of Settling Through Negotiation disputes until their final settlement (III). the Relevant Disputes Between China and Lastly, this Paper will argue about some the Philippines in the South China Sea‖, points to be taken into account for the July 13, 2016, paras.1-22, (hereafter, equitable settlement of territorial disputes China‘s White Paper)). However, each (IV). contending parties has its own version of history, which is necessarily subjective in Main interest of participants here will be character. And when the parties contend the South China Sea Arbitration between each other based on these subjective the Philippines and the Peoples Republic aspects, settlement of the dispute seems to of China, and also this Paper will touch on be difficult to attain. There must be some the Awards, if need be, but they are not objective and common basis for this the heart of this Paper. purpose. Among numerous historical I. Role of International Law of facts, relevant facts for the settlement of Offering Basis of Settlement for dispute concerned and irrelevant ones Territorial Disputes must be distinguished. 1. Multi-dimensional Character of International law can serve as an objective Disputes and Need for Common basis for the contending parties. It can Basis provide them with common ground and

Almost all of international disputes are language for discussion and mutual multi-dimensional in their character. They understanding. International legal arguments of both parties also enable international public opinion to compare them and to judge their respective  Emeritus Professor of Nagoya University, adequacy and reasonableness. Today, (Japan) ―repute‖ may be an important factor in

26 solving territorial disputes (See, Award of otherwise, may be different according to the Arbitral Tribunal in the first stage of their own character. However, following the proceedings between Eritrea and points can safely be said in general. Yemen (Territorial Sovereignty and (1) Territorial Disputes: The Principle of Scope of the Dispute), Decision of 9 Effectivité October 1998, 22 UNRIAA, p.328, paras.513-516, hereafter, Eritrea/Yemen The hart of the title to territory is Arbitration.).As the reverse side of the ―effective control‖ or the principle of coin, multi-dimensional character of ―effectivité‖. In the Island of Palmas Case, international disputes signifies that the sole Arbitrator Max Huber stated that international law alone cannot bring their ―the continuous and peaceful display of successful settlement. Other diverse territorial sovereignty […] is as good as a th aspects have to be dealt with. The title‖ (Award of April 4 , 1928, 2 UNRIAA, International Court of Justice (hereafter, p.839), and the Permanent Court of ICJ) once stated that, ―[i]t is for the Court, International Justice (hereafter, PCIJ) […], to resolve any legal questions that ruled in the Legal Status of Eastern may be in issue between parties to a Greenland Case that ―a claim to dispute; and the resolution of such legal sovereignty based not upon some questions by the Court may be an particular act or title such as a treaty of important, and sometimes decisive, factor cession but merely upon continued display in promoting the peaceful settlement of of authority, involves two elements each of which must be shown to exist: the the dispute‖ (United States Diplomatic and Consular Staff in Tehran, Judgment intention and will to act as sovereign, and of 24 May 1980, ICJ Reports 1980, p.22, some actual exercise or display of such para.40.) .It must be noted that the Court authority‖ (Judgement of 5 April 1933, distinguished here between ―the resolution PCIJ, Ser. A./B., No.53, pp.45-46.) .This is of […] legal questions‖ and ―the peaceful the established jurisprudence of settlement of the dispute‖ as a whole, and international courts and tribunals, and we confined its role to the former. For the can cite many precedents to the same purpose of ―the peaceful settlement of the effect. dispute‖ as a whole, other aspects of the The principle of effectivité is of Western disputes must be taken into account. This origin, and has some elements of rule of point will be dealt with in Part IV below. force, to be sure. However, considering the 2. Basis of Settlement for Territorial exclusive nature of territorial sovereignty, Disputes it is indispensable for the protection of the rights of foreign countries and peoples in It goes without saying that basis of the territory concerned. Thus, to quote settlement for each dispute, territorial or Arbitrator Huber again, ―the principle that

27 occupation, to constitute a claim to and Maritime Dispute between territorial sovereignty, must be effective, Nicaragua and Honduras in the that is, offer certain guarantees to other Caribbean Sea, Judgment of 8 October States and their nationals‖ (Supra, p. 2007, ICJ Reports 2007, p. 697, para. 846). 117.). Therefore, acts performed by a It seems to be opportune to make some contending party after the critical date, in comments on the principle of effectivité. order to ―strengthen‖ its effective control, Firstly, it is clear that effective control or would be irrelevant for the settlement of effectivité cannot be confirmed by an that dispute. instant fact at the moment of Thirdly, acts, in order to establish incorporation of the territory concerned. effectivité, must be acts of State performed For instance, the Island of Palmas Award à titre de souverain. Thus, Judge Hsu Mo stated that ―[i]t is quite natural that the stated in his Separate Opinion in the establishment of sovereignty may be the Fisheries Case that, ―[a]s far as the fishing outcome of a slow evolution, of a activities of the coastal inhabitants are progressive intensification of State concerned, I need only point out that control‖ (Supra, p.867.). Also, the Award individuals, by undertaking enterprises on of Eritrea/Yemen Arbitration stated that their own initiative, for their own benefit the gradual consolidation of title is a and without any delegation of authority by process ―well illustrated in the Eastern their Government, cannot confer Greenland case, the Palmas case, and very sovereignty on the State― (Judgement of many other well-known cases (Supra, pp. December 18th, 1951, ICJ Reports 1951, 311-312, para. 450). p.157.). Also, the Award of Eritrea/Yemen Secondly, acts constituting effective Arbitration ruled that evidence of fishing control or effectivité must be those activities by private persons ―is not conducted before a ―critical date‖, which indicative as such of state activity denotes the date when the dispute was supporting a claim for administration and crystallized or when the parties to it control of the Islands. […] [I]t does not resorted to a means of peaceful settlement. constitute evidence of effectivités for the According to the ICJ, ―the significance of a simple reason that none of these functions critical date lies in distinguishing between are acts à titre de souverain.‖ (Supra, pp. those acts […] which are in principle 283-284, para. 315). relevant for the purpose of assessing and Last but not least, as stated by the validating effectivité, and those acts Chamber of the ICJ, where the disputed occurring after such critical date, which territory is effectively administered by a are in general meaningless for that party other than the one possessing the purpose‖ (Case concerning Territorial legal title, derived from a treaty, for

28 instance, ―preference should be given to 19th century Spanish America and made the holder of the title‖ (Burkina the former colonial boundaries to be Faso/Mali Frontier Dispute, Judgement international boundaries upon accession of the Chamber of 22 December 1986, ICJ to independence. Though the Chamber Reports 1986, pp.586-587, para.63.). This recognized the apparent contradiction ruling was followed also by the Case between the right of peoples to self- concerning the Land and Maritime determination and the principle of uti Boundary between Cameroon and possidetis juris, it opted for the latter as Nigeria. In this case, the ICJ, rejecting ―[t]he essential requirement of stability in Nigeria‘s plea of effectivité, conferred the order to survive‖. Thus, the principle of uti territories concerned on Cameroon, which possidetis juris must be taken into account possessed legal title (Judgement of 10 in the interpretation of the principle of October 2002, ICJ Reports 2002, pp. 344, self-determination of peoples (Supra, 353-355, paras.55, 68-70; pp.412-416, pp.565-567, paras.20-26.). paras.218-224.). Second, the prohibition of the threat or (2) Emergence of the Principle of use of force is applied also to territorial Legitimacy and frontier disputes. No territorial It must be noted, however, that the acquisition resulting from the threat or principle of effectivité, though retaining its use of force shall be recognized as legal. central importance, has become to be This is confirmed by the General Assembly limited by the principle of legitimacy Declaration on Principles of International under contemporary international law. Law concerning Friendly Relations and First, the right of self-determination of Co-operation among States in accordance peoples lays restraint on the functioning of with the Charter of the United Nations the principle of effectivité, at least in (GA Res. 2625 (XXV), Annex, 24 October principle. As put it by Judge Dillard in his 1970: hereafter, Friendly Relations Separate Opinion in the Western Sahara Declaration) and also by the General Advisory Opinion, ―[i]t is for the people to Assembly Definition of Aggression (GA determine the destiny of the territory and Res.3314 (XXIX), Annex, 14 December not the territory the destiny of the people‖ 1974). The ICJ, in its Advisory Opinion on (Advisory Opinion of 16 October 1975, ICJ the Legal Consequences of the Reports 1975, p.122.). But, the Chamber Construction of a Wall in the Occupied of ICJ, in its Judgement of Burkina Palestinian Territory, stated that the Faso/Mali Frontier Dispute Case, illegality of territorial acquisition resulting recognized the application of the principle from the threat or use of force is the of uti possidetis juris to the African corollary of the principle of non-use of continent. This principle originated from force, and therefore reflect customary international law (Advisory Opinion of 9

July 2004, ICJ Reports 2004, p.171, of force, to enter into the Western World para.87.). Order. And at that time, their ―domain‖

(3) Concept of ―Domain‖ under the Islamic had to be reconstructed into ―territory‖ and the East Asian World Orders under international law. For this purpose, they had to establish effective control Above discussion on the principle of there. In this respect, the Judgment of the effectivité is based on the contemporary ICJ in the Minquiers and Ecrehos Case international law, which, notwithstanding should be recalled. The Court stated that its Western origin, is universally ―[s]uch an alleged original feudal title of applicable today. However, until about the the Kings of France in respect of the th end of 19 century, there had been several Channel Islands could today produce no World Orders with different ordering legal effect, unless it had been replaced by principles from those of the Western or another title valid according to the law of traditional international law. The Islamic the time of replacement‖. The Court World Order, for instance, was based on indicated that ―effective possession of the the relationship of religious allegiance islets in dispute‖ was regarded as ―another between the ruler, called Caliph or Sultan, title valid according to the law of the time and his subjects, and, the East Asian or of replacement‖ (Judgment of November Chinese World Order was based on a kind 17th, 1953, ICJ Reports 1953, p. 56.). of feudal relationship between the Almost fifty years later, a similar Emperor of China and peoples who perception appeared again in the Award of submitted to Emperor‘s rule for his virtue. Eritrea-Yemen Arbitration (Supra, p.245, Under traditional international law, para. 131). ―territory‖ was defined by definite boundaries within which effective control Recently, international courts and by the State concerned was equally tribunals have become more positive extended. In contrast, Islamic or Chinese toward the traditional concepts derived ―domain‖ was thought to be comprised of from different World Order, but, they the area where the inhabitants submitted continue to rely on the principle of to the Caliph or the Chinese Emperor. effectivité as the last resort in order to Neither definite boundaries nor effective resolve territorial disputes (Eg., Award of control evenly over its domain were Eritrea/Yemen Arbitration, supra, required. ―Territory‖ denoted domination pp.245-246, paras. 126-130;.). In any case, over land, while ―domain‖ implied it seems to be quite natural for domination over peoples. international law to require effectivité, considering its role of common basis for th By the end of 19 century, those countries the settlement of territorial disputes. belonging to these different World Orders had been forced, often by the threat or use

(4) Maritime Disputes: The Principle of December 2014, para.11 (hereafter, the ―Land Dominates the Sea‖ China‘s Position Paper). See also, Chinese

Turning to maritime disputes, the starting Society of International Law, ―The point must be the principle of ―the land Tribunal‘s Award in the ‗South China Sea dominates the sea‖. This principle has Arbitration‘ Instituted by the Philippines been repeatedly relied on in the maritime Is Null and Void‖, 10 June 2016, Section delimitation cases. To quote only one II. 1. (hereafter, CSIL‘s Paper). example, the ICJ, in the Case concerning There must be a clear distinction between Maritime Delimitation in the Black Sea, the principle of the ―land dominates the referred to, as one of the principles sea‖, which explains the creation of title of ―underpinning its jurisprudence on this coastal States to the maritime area, and issue‖, the principle ―that the ‗land the delimitation of overlapping area of dominates the sea‘ in such a way that coastal States‘ entitlement thus created. coastal projections in the seaward The notion of continental shelf as the direction generate maritime claims‖ ―natural prolongation‖ of the land (Judgement of 3 February 2009, ICJ territory, pronounced by the ICJ in the Reports 2009, pp.96-97, para.99.). North Sea Continental Shelf Cases China emphasizes the importance of the (Judgement of 20 February 1969, ICJ principle of the ―land dominates the sea‖ Reports 1969, p.47, para.85 (c)) had for the purpose of the South China Sea sometimes been misunderstood as a dispute. By virtue of this principle, China principle for delimitation. However, as contends, for instance, that the problems stated by the Court in the Tunisia/Libya of marine entitlement cannot be Continental Shelf Case, ―the idea to which determined without prior determination [the term ―natural prolongation‖] gave on the sovereignty over land territory, expression was already a part of existing which are not a problem ―concerning the customary law as the basis of the title of interpretation or application‖ of the the coastal State‖, but ―it would not United Nations Convention on the Law of necessarily be sufficient, or even the Sea (hereafter, UNCLOS), and thus are appropriate, in determining the precise outside the jurisdiction of an Arbitral extent of the rights of one State in relation Tribunal constituted under Part XV of the to those of a neighbouring State‖ Convention (E.g., China‘s White Paper, (Judgement of 24 February 1982, ICJ supra, para.67; Position Paper of the Reports 1982, p.46, para. 43). Government of the Peoples‘ Republic of As for the delimitation of maritime area, China on the Matter of Jurisdiction in the the ICJ declared that, in its judgement of South China Sea Arbitration initiated by Case concerning Maritime Delimitation the Republic of the Philippines, 2 in the Black Sea, when it called upon to

31 delimit the continental shelf or exclusive Returning to the South China Sea Dispute, economic zone, it will use the following it seems to be necessary to touch upon, ―delimitation methodology‖. First, it will though summarily, China‘s claim to ―nine- establish a provisional delimitation line, dash line‖. Since its appearance in a Note usually this line being median or Verbale of Chinese Mission to the United equidistance line. Second, it will consider Nations addressed to the Secretary- whether there are relevant circumstances General (7 May 2009: CML/17/2009), it calling for the adjustment or shifting of has been much debated among the provisional line in order to achieve an international law scholars, including those equitable result. And third, it will verify from China. The Note Verbale claims that, that the line thus established does not lead ―China has indisputable sovereignty over to an inequitable result from any the islands in the South China Sea and the disproportion between the ratio of the adjacent waters, and enjoys sovereign respective coastal length and the ratio rights and jurisdiction over the relevant between the relevant marine areas of each waters as well as the seabed and subsoil State by reference to the delimitation line thereof‖. However, there has been no (Supra, pp.101-103, paras.115-122.). official explanation by the Chinese This judgement seems to be corpus of the Government on the nature, content and jurisprudence of ICJ concerning the legal basis of ―nine-dash line‖ at that time delimitation of marine areas, and adopted or since then. unanimously without any separate opinion In the proceedings of the Arbitral or declaration. Thus, this ―delimitation Tribunal, the Philippines sought an methodology‖ will exert decisive influence Award, inter alia, that China‘s claim based on the following cases of maritime on its ―nine-dash line‖ was inconsistent delimitation. For instance, the with the UNCLOS and therefore invalid. International Tribunal for the Law of the Through the analysis of China‘s Sea (hereafter, ITLOS), Case concerning fragmentary statements as well as its Delimitation of the Marine Boundary conduct, the Tribunal understood Chinese between Bangladesh and Myanmar claims based on ―nine-dash line‖ as claims (Judgement of 14 March 2012, ITLOS to right to the living and non-living Case No.16) and Award of Bay of Bengal resources within the line, but not to be a Maritime Boundary Arbitration between claim of territorial sea or internal waters. Bangladesh and India (Award of 7 July According to the Tribunal, the UNCLOS 2014: PCA Case No.2010-16) seems to created the comprehensive system of follow basically the three steps marine zones, and superseded earlier delimitation methodology. rights and arrangements to the extent of any incompatibility. Thus, the Tribunal concluded that ―China‘s claims to historic

32 rights, or other sovereign rights or (See, e.g., Friendly Relations Declaration; jurisdiction, with respect to the marine Manila Declaration on the Peaceful areas of the South China Sea encompassed Settlement of International Disputes (GA by […] the ‗nine-dash line‘ are contrary to Res.37/10, Annex, 15 November 1982: the Convention and without lawful effect hereafter, Manila Declaration). to the extent that they exceed the […] Article 33 (1) of the Charter enumerates, limits of China‘s maritime entitlement though not exhaustive, means for pacific under the Convention‖ (Section V of the settlement of disputes. Apart from resort Award of 12 Jury 2016, esp., para.278). to regional organization, and reference to II. Role of International Law of the UN Organs which is not stipulated Providing Means of Settlement for here, and will be discussed in Section 2 Territorial Disputes (3), these means are sometimes arranged 1. Place of Means for Peaceful as follows: starting from negotiation, Settlement of Disputes through mediation, enquiry and conciliation, they lead to arbitration and Under traditional international law, which judicial settlement. This sequence is did not regulate a States‘ act to resort to explained as a process from a subjective war, peaceful or amicable means for verification of relevant facts and law to an settlement of disputes was only one of the objective verification, with third party legitimate means along with forcible or participation, competence of the third compulsive means. 1907 Hague party being strengthened one after Convention for the Pacific Settlement of another. This understanding reflects a International Disputes (hereafter, 1907 domestic law analogy on the model of Hague Convention), provided that ―[w]ith domestic law of Western developed a view to obviating as far as possible countries, and regards arbitration and recourse to force in the relations between judicial settlement, applying international States, the Contracting Powers agree to law and bringing about binding decisions, use their best efforts to ensure the pacific as the best means for settlement. settlement of international differences‖ (Article 1: emphases added.). During the drafting process of the Friendly Relations Declaration, this evaluation of In contrast to this, under the UN Charter, judicial settlement, mainly those by the peaceful settlement of disputes has ICJ, was advocated by Western developed become a legal obligation of every State countries, and highly contested by Asian (Article 2 (3)). This is a logical corollary of and African developing countries as well the prohibition of the threat or use of force as Socialist countries at that time. They (Article 2 (4)). There is beyond all doubt criticized judicial settlement mainly on the that these provisions are norms of following two grounds. First, they argued customary or general international law

33 that international law applied by the ICJ in effect South Africa‘s incorporation of was unfavorable for them. Customary South West Africa into its territory and international law was formed by Western practice of apartheid there (Judgment of developed countries when they were under 18 July 1966, ICJ Reports 1966, p.6). This colonial domination and had not their say judgement was highly criticized not only about it. As for treaty law, unequal treaties by Asian and African countries but also by concluded under duress will be deemed to the international community as a whole, be valid and will be applied against their and the IJC had no new case before it for interests, they contended. Second, they about five years except for the North Sea criticized the composition of the ICJ not to Continental Shelf Cases applied in 1967. be equitable for them. The ICJ was A compromise formula of these opposing composed, at its inauguration in 1945, of 6 standpoints of Western developed judges from West-European and other countries and Asian and African countries countries, 3 from East-European were the ―principle of free choice of countries, 4 from Latin-American means‖. This principle was implicit in countries, and each one from Asian and Article 33 (1) of the UN Charter, in so far African countries. Thus, these countries as it referred to ―other peaceful means of contended that judicial settlement would their own choice‖, and recognized be unfavorable for them, and argued, explicitly as a ―principle‖ by the Friendly instead, for settlement by negotiation Relations Declaration and the Manila which they deemed more responsive to the Declaration as follows: ―International sovereign equality. In addition to these disputes shall be settled on the basis of the two points criticism, cultural difference sovereign equality of States and in between Asian and African countries on accordance with the principle of free the one hand and Western countries on choice of means‖. This principle is also ere the other w sometimes referred to. reflected, for instance, in Articles 280 and Though this argument seems to have lost 287 of the UNCLOS. its influence before long, it reemerged in the CSIL‘s Paper. The Paper stated that It seems natural that China emphasizes ―non-litigation‖ was inherent in ―the the importance of the principle of free centuries-long Chinese cultural tradition‖ choice of means. China contends that the Philippines has violated China‘s right to (Supra, Section Ⅳ). choose means of dispute settlement by In fact, Asian and African countries‘ unilaterally initiating arbitration. apprehension for the ICJ was justified at According to China, China and the that time, at least partly. For instance, Philippines have agreed through bilateral ICJ‘s Second Phase Judgement of the and multilateral agreements, including South-West Africa Case denied the 2002 Declaration on the Conduct of Applicants‘ standing, and thus overlooked

Parties in the South China Sea (hereafter, the contending parties. Means involving DOC) between ASEAN countries and international organizations will be China, to settle the South China Sea discussed separately (3). Dispute by negotiation, and therefore the (1) Reevaluation of Negotiation compulsory procedures entailing binding effect, including of course arbitration, Basic nature of negotiation as a means of does not apply by virtue of Article 281 (1) pacific settlement has long since been of the UNCLOS (China‘s Position Paper, recognized. The PCIJ, in its order in the paras.76-85; China‘s White Paper, Free Zones Case, stated that ―the judicial paras.115-118). This position of China is settlement of international disputes […] is debatable, to say the least, but, its right or simply an alternative to the direct and wrong would depend on the interpretation friendly settlement of such disputes th of the relevant provisions of the UNCLOS between the Parties‖ (Order of August 19 , as well as of agreements relied on by 1929, PCIJ Ser.A No.22, p.13.), and also China. Therefore, Article 288 (4) of the the ICJ, stressed that ―[t]here is no need to UNCLOS seems to be applicable, namely, insist upon the fundamental character of in the event of a dispute as to whether an this method of settlement‖, citing PCIJ‘s Arbitral Tribunal has jurisdiction, the Order mentioned above (North Sea matter shall be settled by the Tribunal Continental Shelf Cases, supra, p.47, concerned. para.86.). 2. Characteristics of Main Means for Notwithstanding these precedents, Settlement Western developed countries and their international law specialists have Among the various means of peaceful generally been negative to negotiation. Ⅱ settlement mentioned in Part , Though admitting an elementary nature of Section 1. above, two means situated negotiation as simple and flexible without both ends of the arrangement, namely impairing sovereignty, they contend that negotiation (1) and, arbitration and there will be no settlement without an judicial settlement (2), are discussed here. agreement of contending parties, and the This selection seems to be justified, settlement may not be equitable because it because all of the other means may often reflects power relationship and skill produce conclusions without binding of negotiation of the parties concerned. force, even with intervention by third Instead, they recommended arbitration or party. Therefore, parties to the dispute judicial settlement which, by applying must negotiate based on these conclusions international law, can decide the case with in order to attain settlement. Thus, these binding effect. means can be understood as means to facilitate negotiated settlement between They fiercely disputed with Asian and African countries as well as from Socialist

35 countries at that time and their lawyers, this point, position of the CSIL‘s Paper and agreed to a compromise principle of seems to be justified. Reference to third free choice of means in the Friendly party settlement procedures cannot Relations Declaration, as stated above. dispense with direct negotiation between And the Manila Declaration is a little more the parties in some respects. Many positive to negotiations in recommending conventions for the peaceful settlement of States to ―bear in mind that direct disputes oblige the parties to do direct negotiations are a flexible and effective negotiation before recourse to means of peaceful settlement of their conciliation, arbitration or judicial disputes‖. settlement, in order to clarify each other‘s It must be noted that international law is claims and points at issue. And conclusions of third party settlement not irrelevant for negotiations. General Assembly Resolution on Principle and without binding force have to be followed guidelines for international negotiations by negotiation by the parties for the (GA Res. 53/101, 8 December 1998), settlement based on these conclusions. though reaffirming the right of free choice (2) Reevaluation of Arbitration and of means, recognized that ―in their Judicial Settlement negotiations States should be guided by International law has responded somehow the relevant principles and rules of with the criticism to arbitration and international law‖, and presented as ―a judicial settlement mentioned before. As general, non-exhaustive frame of reference for the composition of the courts and for negotiations‖, seven principles of tribunals, the ICJ became to be composed, international law, almost parallel with from 1969 on, of 5 judges from West- those provided for in the Friendly European and other countries, each 2 Relations Declaration. from East-European and Latin-American The principle of free choice of means does countries, and each 3 from Asian and not accord priority to any of the means of African countries. This may be still peaceful settlement. However, parties in somewhat unsatisfactory for Asian and dispute, by logical necessity, ―shall African countries, considering their proceed expeditiously to an exchange of proportion to the whole of the UN views regarding its settlement by membership. This is, however, the same negotiation or other peaceful means‖ ratio to the regional distribution of the (Article 283 (1) of the UNCLOS). The Members of the Security Council. And, CSIL‘s Paper emphasizes the importance 1978 Rules of the ICJ conferred on the of ―exchange of views‖ as a means for parties some say for the composition of parties to agree with peaceful means to be the Chamber to be constituted under chosen (Supra, Section Ⅴ). At least on Article 26 (2) of the Statute (Article 17 (2)

36 of the Rules). In case of arbitration, views Resolutions, including the Friendly of contending parties may be reflected Relations Declaration, as expressive of the more directly to the composition of the opinion juris of States. In case of the law tribunal. Annex Ⅶ Arbitral Tribunals of the sea, 1982 UNCLOS adopted in many under the UNCLOS, for instance, will be points the demands of developing composed of each one arbitrators countries, which participated positively in appointed by the parties and other three its drafting. This seems to make possible arbitrators appointed by agreement of the for its Part XV on the settlement of dispute parties, the President being appointed by to incorporate ―Compulsory Procedure agreement from the latter three members Entailing Binding Decisions‖. Ⅶ (Article 3 of Annex ). Judicial settlement is said to be rigid in As for the applicable law, the progressive applying international law. The ICJ development and codification of decides ―in accordance with international international law, mainly under the law (Article 38 (1) of the Statute) . In auspices of the United Nations, has made contrast to this, arbitration was remarkable success. The Vienna traditionally said to be more flexible in Convention on the Law of Treaties, based this respect. 1907 Hague Convention on the ―principle of free consent‖, declared provided that ―[i]nternational arbitration to be void treaties procured by the threat has for its object the settlement of disputes or use of force, or treaties conflicting with between States by Judges of their own a peremptory norm of general choice and on the basis of respect for law‖ international law (jus cogens) (Articles 52 (Article 37: emphasis added). The parties and 53). Developing countries have also also entitled to designate, in a compromis, increased their influence to the formation rules to be applied by the arbitral tribunal. and development of customary However in recent times, arbitral tribunals international law. General Assembly have become to be more rigid in applying Resolutions have become to be taken into international law. For example, Annex VII account in identifying customary Arbitral Tribunals under the UNCLOS, international law. General Assembly along with the ICJ and the ITLOS, ―shall Resolution on the Review of the role of the apply this Convention and other rules of ICJ (GA Res. 3232 (XXIX), 12 November international law not incompatible with 1974) recognized that ―the development of this Convention (Article 293 (1) of the international law may be reflected, inter UNCLOS). alia, by declarations and resolutions of the These developments seem to promote General Assembly which may to that international courts and tribunals to make extent be taken into consideration by the more equitable decisions in favour of International Court of Justice‖. And the developing countries, and these trends in ICJ itself has relied on General Assembly

37 turn have prompted more positive attitude domestic and international public opinion on the part of developing countries toward to force the Governments to accept, as arbitration and judicial settlement. One of means for peaceful settlement of disputes, the great breakthroughs was said to be the arbitration or judicial settlement, and to Nicaragua Case before the ICJ, in which a implement their decisions. tiny developing country situated in Central (3) Disputes Settlement Involving America, sometimes called the ―backyard International Organizations of the United States‖, won the suit against its great neighbor. Thus, since about the Article 33 (1) of the UN Charter, in addition to the above mentioned series of last decade of 20th century, developing countries have become more positive in means, refers to ―resort to regional referring their disputes to international agencies or arrangements‖. The Charter courts and tribunals. Even ―political itself provides for dispute settlement by disputes‖, traditionally said to be UN Organs: the General Assembly; the ―unjustifiable‖, such as territorial disputes Security Council; and the Secretary- or disputes involving the use of force, have General. Decisions of the General become often litigated. China‘s Position Assembly, as the most representative Paper stated, at least in principle, that, among UN Organs, though only ―China highly values the positive role recommendatory in effect, are highly played by the compulsory dispute persuasive as backed by international settlement procedure of the Convention in public opinion. But, considering its size and working methods, it seems to be more upholding the international legal order for the ocean‖ (para.79). suitable to formulate general principles to be followed in dispute settlement, than to These positive developments notwithstanding, settle individual dispute. The Security it must be conceded that two defects of Council, on the other hand, is conferred arbitration and judicial settlement remain with competence to deal with concrete to be solved. First, jurisdiction of courts dispute or situation likely to endanger the and tribunals depend on agreements of maintenance of international peace and the contending parties, except for few security. And the parties to a dispute, in regional institutions. And second, though certain circumstances, have to refer it to their decisions are binding in theory, there the Council, and the Council may is no international machinery to enforce recommend procedures of adjustment or these decisions against losing parties. In terms of settlement. However, dispute order to make up these defects, many settlement by the Council is often ideas de lege ferenda have been proposed. influenced significantly by the interests of However, these ideas can never be Permanent Members, and its ―double actualized without agreements among standard‖ has often been criticized. States. Here is the imperative role of

The Charter also recognizes the existence parties, constitute itself into a committee of regional mechanisms to deal with of mediation, inquiry or conciliation regional matters appropriate for regional (Article 15). However, above provisions of action, provided that they are consistent the Treaty do not preclude recourse to the with the Purposes and Principles of the modes of settlement contained in Article United Nations, and the Members shall 33 (1) of the UN Charter. This ASEAN make every effort to achieve pacific mechanism centering on negotiation settlement of local disputes through such seems to be distinctive to this region regional mechanisms. Regional compared with European or African mechanisms are well informed about counterparts which rather favour judicial circumstances of the region concerned, settlement. and can realize more appropriate Management of Disputes until Their resolution of dispute based on the regional Final Settlement solidarity. Each of regional organizations, such as the African Union, the European 1. Obligation Not to Aggravate the Union, and the Organization of American Dispute States, have distinctive system of peaceful Obligation of States to settle their settlement of disputes. There are also international disputes by peaceful means, some regional conventions specifically enshrined in Article 2 (3) of the UN aimed at peaceful settlement of dispute, Charter, signifies not only obligation to such as 1948 America Treaty on Pacific settle standing disputes by peaceful Settlement (Pact of Bogota) and 1957 means, but also obligation to refrain from European Convention for the Pacific any action which may aggravate the Settlement of Disputes. situation and make more difficult or The ASEAN has 1976 Treaty of Amity and impede the peaceful settlement of the Cooperation in Southeast Asia, Chapter Ⅳ dispute. This obligation has been reiterated in such General Assembly of which is devoted to Pacific Settlement of Disputes. If disputes should arise Resolutions as the Friendly Relations between the Contracting Parties, they shall Declaration and the Manila Declaration, refrain from the threat or use of force and and there are quite a few treaty provisions shall settle such disputes through friendly to the same effect. negotiations (Article 13). As a continuing An institution of provisional measures body to settle disputes, a High Council is provided for in Article 41 of the ICJ constituted (Article 14), and in the event Statute seems to reflect this obligation. no solution is reached by direct The PCIJ stated in its Order in the negotiation, the High Council shall Electricity Company of Sofia and recommend appropriate means of Bulgaria Case that Article 41 of the settlement, or, upon agreement of the Statute applied the principle ―universally

39 accepted by international tribunals and PCIJ, and applied them to the case before likewise laid down in many conventions it, stating that ―such a duty is inherent in […] to the effect that the parties to a case the central role of good faith in the must abstain from any measure capable of international legal relations between exercising a prejudicial effect in regard to States‖, and that the duty ―constitutes a the execution of the decision to be given principle of international law that is and, in general, not allow any step of any applicable to States engaged in dispute kind to be taken which might aggravate or settlement as such‖ (Award of 12 July extend the dispute‖ (Order of December 2016, supra, pp.457-461, paras.1166-1173). 5th, 1939: PCIJ Ser. A/B, No.79, p. 199). The Arbitral Tribunal declared that According to Article 41 of the Statute, the China‘s dredging, artificial island-building and construction activities in the disputed objective of provisional measures is ―to preserve the respective rights of either area during the proceedings have been party‖. Notwithstanding this, the ICJ has breach of the obligations under Articles become to indicate provisional measures 279, 296 and 300 of the UNCLOS, as well the sole aim of which is to prevent the as obligations under general international aggravation or extension of the dispute. law ―to abstain from any measure capable The Chamber of the ICJ, in the Burkina of exercising prejudicial effect in regard to Faso/Mali Frontier Dispute Case, though the execution of the decisions to be given admitting that under Article 41 of the and in general, not to allow any step of any Statute ―the Court may only indicate kind to be taken which might aggravate or provisional measures […] for the extend the dispute during such time as preservation of the rights of either Party‖, dispute resolution proceedings were stated that after recourse of the dispute to ongoing‖ (Ibid.,pp.461-464, paras.1174- the Chamber, incidents occur which not 1181, pp.476-477, Dispositif B (16)). merely are likely to aggravate the dispute 2. Measures for Management of but comprise a resort of force in Disputes contravention of the Charter, ―there can be Thus the parties to a dispute, until the no doubt of the Chamber‘s power and duty agreed means for settlement put in motion to indicate, if need be, such provisional and lead to its resolution, bear the measures as may conduce to the due obligation to manage the dispute in order administration of justice‖ (Order of 10 to ensure that any action not to be January 1986, ICJ Reports 1986, pp.8-9, undertaken which may aggravate the paras.11, 18-19.). situation and make more difficult the peaceful settlement of the dispute. The Award of South China Sea Arbitration, reaffirmed the above findings on One of the most useful means to manage provisional measures since the time of territorial disputes would be to ―shelve‖ or ―freeze‖ them without prejudice to the

40 positions of the contending parties. 1959 ensuring humane treatment of persons in Antarctic Treaty set up one of the most distress; notifying any impending successful system for international joint/combined military exercise (para.5). cooperation by ―shelving‖ territorial Pending a comprehensive settlement of claims. Until that time, several countries disputes, the Parties concerned are also had claimed sovereignty over some recommended to take cooperative portion of the Antarctic, sometimes activities including the following: marine overlapping, and another contested these environmental protection; marine claims. Article 4 of the Treaty does not scientific research; safety of navigation; recognize, dispute, nor establish territorial and, combating transnational crime claims, and no new claims shall be (para.6). asserted while the Treaty is in force. The DOC is political, not legal, in its Under this system, wide range of nature, and the Parties undertake to international cooperation in relation to pursue the adoption of a legally binding Antarctic activities have developed, such code of conduct in the South China Sea as 1982 Convention for the Conservation (para.10). Therefore, the above cited of Antarctic Marine Living Resources, and provisions of the DOC as such do not 1991 Protocol on Environmental produce legal obligations for its parties. Protection. The South China Sea Arbitral Tribunal, in 2002 DOC between the ASEAN countries its Award on Jurisdiction and and China presented an interesting Admissibility, made a detailed formula to manage outstanding territorial examination of the DOC‘s terms, intention disputes. Under the DOC, the Parties of its parties, and the parties‘ subsequent concerned undertake to resolve their conduct, and concluded that the DOC was territorial and jurisdictional disputes by not intended to be a legally binding peaceful means, without resorting to the agreement referred to in Article 281 of the threat or use of force, through friendly UNCLOS (Award of 29 October 2015, consultations and negotiations in pp.82-85, paras.212-218.). However, the accordance with universally recognized DOC is remarkable because it materializes principles of international law, including somewhat the above mentioned obligation the UNCLOS (para.4). The Parties also to manage the dispute. For this reason, the undertake to exercise self-restraint in their DOC seems to have general validity activities that would escalate the dispute, beyond the situation in the South China including refraining from action Sea. inhabiting on the presently uninhabited For the Equitable Settlement of islands and other features, and they Territorial Disputes: In Lieu of undertake, pending the settlement of Conclusion disputes, to take the following confidence- building measures, inter alia: holding The followings are some suggestions, not dialogues between military officials; exhaustive, for the equitable settlement of

41 territorial disputes, including maritime ―Iceland‘s strong economic interests‖ as disputes. well as its recommendation of joint As stated in Part I, Section 1 above, development, represents a typical most of the territorial disputes are multi- characteristic of conciliation not seen in dimensional in character. They have not case of judicial settlement. The dispute only legal, but also political, economic was resolved through negotiation of the cultural and other aspects as well. Parties based on this Recommendation. Therefore, settlement of their legal aspect, Joint development of resources may be through judicial settlement for example, useful device for settlement of territorial might not lead to the equitable resolution disputes, not only for their final settlement of the dispute as a whole. For this purpose, but also for their management until their diverse interests of the parties concerned final settlement. Because, though have to be taken into account. territorial dispute are normally a zero-sum game, joint development or equitable The Report of the Conciliation distribution of resources, especially Commission on the Continental Shelf area marine resources, may be possible between Iceland and Jan Mayen, delivered options. in June 1981 (27 UNRIAA p. 1), is one of the good examples of settlement taking In settling territorial disputes, not only into account various interests of the interests of contending States as such, but Parties. The Commission, composed of interests of the local population concerned three law of the sea specialists, was must also be taken into account. As early mandated to recommend the dividing line as 1951, in its judgment of the Fisheries for the shelf area between Iceland and Jan Case, the ICJ referred to, as one of the Mayen (under Norwegian sovereignty) ―basic considerations inherent in the taking into account ―Iceland‘s strong nature of the territorial sea‖, consideration economic interests in these sea area, the of ―certain economic interest peculiar to a existing geographical and geological region, the reality and importance of which are clearly evidenced by a long factors and other special circumstances‖. th The Commission‘s Recommendation did usage‖ (Judgment of December 18 1951, not propose a demarcation line for the ICJ Reports 1951, p.133.). It is noteworthy continental shelf different from the that recent jurisprudence of international economic zone line, Iceland‘s 200-mile courts and tribunals has become increasingly to pay attention to the economic zone having already been agreed upon, but recommended adoption of a interests of local population affected by joint development agreement covering the the delimitation. For instance, Award of area offering any significant prospect of Eritrea/Yemen Arbitration ordered hydrocarbon production. Yemen in the exercise of its sovereignty over the islands accorded to it by the This Report of the Conciliation Award, ―Yemen shall ensure that the Commission, in its consideration of traditional fishing regime of free access

42 and enjoyment for the fishermen of both portion of the territory under its Eritrea and Yemen shall be preserved‖ sovereignty, should have due regard to the (Supra, pp.329-330, paras.525-526.). needs of the population concerned‖ The ICJ, for its part, in its (Judgement of 16 April 2013, ICJ Reports Judgment of the Case concerning the 2013, p.85, para.101; pp.90-91, para.112). Dispute regarding Navigational and These decisions are noteworthy not only in Related Rights between Costa Rica and their substantive rulings but also in their Nicaragua, admitted a right of non- methods of interpretation in reaching the commercial navigation for the inhabitants decisions. Eritrea/Yemen Arbitral of the Costa Rican bank, the boundary Tribunal took note of the fact that being on the Costa Rican bank of the San ―Western ideas of territorial sovereignty Juan river, and also a customary right of are strange to peoples brought up in the Costa Rica for its riparian of subsistence Islamic tradition‖. The ICJ, in the Dispute fishing, long practiced by them but not regarding Navigational and Related documented in any formal way (Judgment Rights Case, in interpreting the 1858 of 13 July 2009, ICJ Reports 2009, p.246, Treaty, used methods not necessarily paras.77-79; pp.265-266, paras.140-141.). accord with those of Articles 31 and 32 of And also, Judgement of the ICJ, in the the Vienna Convention of the Law of Burkina Faso/Niger Frontier Dispute Treaties, which the Court had recognized Case, asked by the Special Agreement to as reflecting customary international law. apply ―the principle of the intangibility of Also, the Court, in this judgement, boundaries inherited from colonization‖, recognized establishment of customary namely the principle of uti possidetis juris right of a Party, based not on the practice referred to in Part I, Section 2 (2) of the Parties concerned but on the above, decided the boundary in the area practice of the local population not not specifically delimited by the French contested by the other Party. Judgment of colonial document concerned, on the the Burkina Faso/Niger Frontier Dispute median line of the River Sirba, noting that Case based its decision on a frontier not ―the requirement concerning access to on legal interpretation of the applicable water resources of all the people living in document but on the, so-to-speak, policy the riparian villages is better met by a consideration in favour of the population frontier situated in the river than on one concerned. These sensibilities to the bank or the other‖. And having interests of local population concerned, if determined the course of the frontier, the any, on the part of courts and tribunals Court expressed its ―wish‖ that ―each seem to be indispensable for the equitable Party, in exercising its authority over the settlement of territorial disputes.

DIFFERENT PEACEFULL RESOLUTION MECHANISMS UNDER ARTICLE VI OF THE UN CHARTER AND OTHER DISPUTE RESOLUTION MECHANISMS UNDER INTERNATIONAL LAW

Erik Franckx Thank you very much for the kind complex one as well. Finally, before introduction. I would like to start out by drawing conclusions, I will try to highlight thanking the International Association for elements which are of importance for the Democratic Lawyers for having had the South China Sea without going into the kindness of inviting me here. I feel very specifics of the Arbitration award. privileged indeed. I would like to talk this 1. General International Law morning about dispute settlement under International Law in general, and With respect to the United Nations especially as it applies to the Law of the system, the general principles have Sea. These two systems are quite different. already been stated, namely that the use of The purpose of my paper is to present and force is prohibited and that all disputes clarify these differences to you. have to be settled in a peaceful manner. These principles have been further Since the previous speaker talked about developed by means of a number of the general International Law situation, I resolutions adopted by the General think I can go over my first part quite Assembly. Even though such resolutions quickly. I will rather focus on the Law of normally have no binding force, in this the Sea and try to highlight the specific case, because the General Assembly is and quite distinctive features to be found interpreting its own founding document, there when compared with the we see that these specific resolutions carry International Law system in general. more weight within the framework of the Quintessential to understand this United Nations system. difference is that we have at present a Constitution of the Oceans, namely a If you try to analyse the content of Article document that legally binds many 33 Paragraph 1 of the United Nations countries. Within this document, we have Charter you have, on the one hand, what a specific system of dispute settlement are called diplomatic means, such as negotiations, mediation and good offices. that has been established. It is a quite innovative system for the settlement of On the other hand, you have the so-called disputes, but at the same time a very judicial means, where courts or arbitral tribunals become involved. Since this

 President of the Belgian Society of International basic scheme was well explained by the Law, Research Professor at the Vrije University previous speaker, I can limit myself to pay Brussel, Director of Centre for International Law attention to the main difference that exist

44 between these two groups of dispute Now, if we then compare this basic scheme settlement mechanisms. just mentioned with Article 33 Paragraph

Very often people think that one is binding 1 of the United Nations Charter, we see and the other one is non-binding. I would that the latter document also mentions dare to contest that. When negotiations good offices, which is a method not to be are successful, they normally result in the found in the enumeration of diplomatic conclusion of a treaty. And when you means given above. Contrary to conclude a treaty, of course, that treaty is mediation, States sometimes do not want as binding between the parties as would be to be seen as being involved in the the decision rendered by a court or negotiations between two parties. With arbitration in a case between them. good offices, the third party remains in the background, doesn‘t take any initiative, The difference, I believe, lies in the power and only attempts to bring the parties that the States retain. From the start until together without the third party trying to the very end, the politicians involved in influence the content. diplomatic negotiations can always state that such negotiations, even if they have There are also elements in Article 33 been going on for many, many years, are Paragraph 1 of the United Nations Charter not acceptable to them from a political that are not mentioned in the basic point of view. And then they simply don‘t scheme mentioned above. These are accept the result arrived at. This feature inquiry or fact finding, conciliation, characterizes all of the diplomatic means. settlement of disputes through regional With respect to the second part, when the organization, but all these methods were parties decide to turn the judicial means, already mentioned by the previous they give the ultimate decision out of hand speaker. and it will be somebody else who will When one compares Article 33 Paragraph ultimately decide in their place. And I 1 of the United Nations Charter with the think that is the main difference between above-mentioned basic scheme, one has to these two means of dispute settlement. I admit that the former is clearly more don‘t have to tell you that States prefer the specific than the latter. But, at the same diplomatic means because they want to time, Article 33 Paragraph 1 is also more maintain as much as possible the end limited in its field of application than the solution into their own hands. Thus basic scheme mentioned above because judicial means are normally only the the former only applies to disputes the second kind of means that countries will continuation of which might endanger rely upon after having exhausted international peace and security. diplomatic means. 2. International Law of the Sea

We then turn to the International Law of Zone, 2) the Convention on the the Sea. First, the International Law of the Continental Shelf, 3) the Convention on Sea forms part of International Law, of the High Seas and 4) the Convention on which it forms a sub-branch. But the good Fishing and Conservation of the Living thing for us about this particular sub- Resources of the High Seas. That four branch is that it has been codified and separate conventions were adopted at that consequently has a written document that time rested on the idea that States, even if guides us when we have to apply it. they objected for instance to the content of The codification of the Law of the Sea was, one of them, would nevertheless be in a however, not an easy task. The League of position to adhere to the others if they so Nations tried to accomplish that with wished. If we had only one document, a good number of States would probably be respect to the legal regime of the territorial waters in 1930, but this organization was unable to adhere to this one document utterly unsuccessful mainly because covering the four different fields now countries could not agree on the breadth treated in separate conventions. of this particular maritime zone. The But these four conventions adopted in United Nations, on the other hand, was 1958 did not settle all issues concerning successful in the sense that this the Law of the Sea. Indeed, some problems organization not only codified this law remained, such as the extent of the once, but twice. This is highly exceptional. territorial sea and possible fishing rights The United Nations has a specific body, of coastal States beyond that zone. That is the International Law Commission, which why we had a second attempt in 1960 to is responsible for the codification of try to solve these few remaining problems. International Law as well as its But this second attempt proved progressive development. The unsuccessful as no new agreement could Commission has been instrumental in the be adopted. first attempt made by United Nations in 3. The Constitution for the Oceans 1958. This brings us to the Third United When the diplomats gathered in Geneva Nations Conference on the Law of the Sea that year, they had four draft conventions (1973-1982). When compared to the two in front of them on which they could rely previous conferences convened on this during the negotiations. And in a rather issue by the United Nations, this one is short period of time, namely only three markedly different because the weeks, they were able to adopt four International Law Commission was not conventions which are shown on slide involved in this exercise at all, probably number 8, namely 1) the Convention on explaining why it took almost a decade for the Territorial Sea and the Contiguous these negotiations to conclude.

Here, diplomats simply sat down together the Sea. A gentleman‘s agreement adopted around the negotiating table and wanted at the very outset of the Third United to create a new system of law. Why was Nations Conference on the Law of the Sea such a re-codification needed only years rather provided that this conference would after the Law of the Sea had been codified move forward by means of consensus, a first time? I believe one of the meaning the absence of any formal compelling reasons to be the fact that the objections. Only if consensus remained developing countries only started to gain elusive would States be allowed to ask for their independence during the 1960s, i.e. a vote. A second major novelty of this after the conclusion of this first Third United Nations Conference on the codification exercise. These States Law of the Sea was that negotiators would considered the four 1958 conventions not draft one single document, not four to reflect their positions and interests as separate ones like in 1958, which would they had been absent at the time of their constitute a single package, to take or to creation. Consequently, they were not leave as a whole. At the end of almost 10 interested in adhering to these documents. years of negotiations, the United Nations On the other hand, these countries were Convention on the Law of the Sea was very much attracted by the proposal adopted in 1982 (1982 Convention). This launched in 1967 by Mr. Arvid Pardo, the entails that one cannot pick and choose ambassador of Malta at that time, who within the package, as will become clear to proposed to the General Assembly of the you in a minute.

United Nations that the manganese The systems of resolving disputes in 1958 nodules to be found on the deep ocean and 1982 are also diametrically opposed. floor should be declared to constitute the Under the 1958 conventional system, no common heritage of mankind. provisions on dispute settlement are to be That was the way the Third World was found within the conventions themselves. drawn into the negotiations for the And here I have to correct myself if I want creation of a new set of rules codifying the to be exhaustive, because in one of the Law of the Sea. Their participation also four conventions, there are some dispute influenced the procedural rules governing settlement provisions. But that concerns the new conference, because from the start the Convention on Fishing and it was agreed that, as a rule, there would Conservation of the Living Resources of be no voting. The numerical majority of the High Seas, a legal document that the Third World States would otherwise proved to be very unsuccessful in the end have granted them an almost automatic because when you look at it today, only 36 two-thirds majority, which was the basic Parties are members to it. If one realizes rule applied during the First and Second that the United Nations today counts 193 United Nations Conferences on the Law of Member States, it means that this

47 particular Convention applies only to a stay out altogether. So cherry picking, as I very small minority of States. said, is prohibited. One cannot do that,

The only other provisions on dispute because the only ―picking‖ that is allowed settlement that you have are to be found in consist of adhering to the document as a an Optional Protocol, meaning that these whole. rules are not obligatory. States have to opt The importance of conserving the package in for these provisions to become deal is reflected in the fact that more than operational, and once they opted in, they 100 articles of a document consisting of can as easily opt out at a later stage. As of over 300 articles concern dispute today, only 38 States are parties to this settlement. It clearly indicates that dispute Optional Protocol. It means that very often settlement not only forms a central piece when a dispute arises between two States of the whole edifice, but also a very bound by the 1958 Conventional elaborate part of the 1982 Convention. framework, these disputes simply linger Why so elaborate? Because the States on. wanted the necessary flexibility and this 4. Settlement of Disputes under Part XV flexibility was incorporated into the of the 1982 Convention system, resulting into a rather complex system of dispute settlement. Today, this has completely changed. In the 1982 Convention we now have an integral Louis B. Sohn, a member of the United part of the Convention, namely Part XV, States delegation during the Third United Nations Conference on the Law of the Sea, which deals with dispute settlement. The 1982 Convention is a consensus has been very instrumental in drafting this document. It means that all States needed part of the 1982 Convention. This to be able to find something to their document and its different parts becomes favour, and thus consequently also to very important because at present it is accept some provisions that are not so labelled the Constitution for the Oceans as favourable to them. The total package, so many countries are a party to it, however, should be acceptable to the namely167 plus the European Union, community as a whole. Once arrived at, which is of course not a State but an however, the package needs to be strictly international organization, to be precise. This means that most of the world preserved for otherwise the whole construction would quickly start to community is involved, with a balanced unravel. The unity of the 1982 Convention representation of developed and less has been secured by means of its Article developed States coming from all regions 309, which provides that reservations are of the world. If one moreover takes into simply not possible. It means that you consideration that a good number of either accept that document as a whole or countries do not even have coastlines at all

– and consequently may not have a major to juridical means of dispute settlement interest in becoming a Party to it – the (Section 2. Compulsory Procedures number of 167 is quite elevated. Entailing Binding Decision). Such a far- What then is so special about Part XV on reaching system of dispute settlement the Settlement of Disputes? It is totally could only become acceptable to the different from any kind of system that had participating States if certain exceptions existed before in multilateral treaties of a were to be included. For that reason there universal character and even International is a third section under Part XV, entitled Law in general. Under the United Nations ―Limitations and Exceptions‖. Let us now system, you have the International Court look at these three sections in turn. of Justice (ICJ) which according to Article First, there are the general provisions, 92 of the United Nations Charter is the which are very important. They partly ―principal judicial organ of the United echo points of general International Law, Nations‖. But the ICJ, as a starting point, such as the requirement that all disputes has no jurisdiction. Everyone accepts the need to be solved by peaceful means. At rules of the game, as worked out in the the same time this section introduced the Statute of the ICJ, which by the way forms basic freedom of choice of the Parties, an integral part of the United Nations which is specific to this 1982 Convention. Charter binding 193 States today, but the Normally, if you have a compromissory ICJ as such has no jurisdiction. So every clause in a treaty, you either go before the time two States want to bring a certain ICJ or arbitration, depending on what was case before the ICJ, they both first have to agreed upon between the parties. Here, in consent to its jurisdiction for that order to make the unilateral institution of particular case. With respect to the Law of compulsory procedures palatable to the the Sea, this consent is given beforehand Parties of the 1982 Convention, four by becoming a member of the 1982 different institutions had to be mentioned Convention and once you have assumed as will be seen. Despite this flexibility, and that commitment, one party can no matter what the more than 100 other unilaterally take the other one before a provisions on dispute settlement in the court or tribunal whenever a dispute arises 1982 Convention provide for, States between them relating to the Law of the always retain the freedom to jointly opt for Sea. a different procedure of their own choice if Part XV is composed of three sections. they so wish. This is what Articles 280 and First States have to try to solve the issue 299 (2) clearly provide for. Finally, these through diplomatic means (Section 1. general provisions of Section 1 also General Provisions). If that proves contain certain obligations, it means unsuccessful, States can unilaterally turn things that States cannot normally exempt themselves from. These obligations

49 comprise the requirement 1) to exchange both States involved in any bilateral legal views, 2) to follow first procedures dispute. With respect to the Law of the established under general, regional or Sea, as I said, the consent is given by bilateral agreements (unless the parties becoming a Party to the 1982 Convention. otherwise agree), and 3) to apply Part XV Another novelty of Part XV of the 1982 if under another procedure freely chosen Convention, as already alluded to before, by the Parties no settlement was reached. is that there is a choice of forum. To make a general synthesis of Section 1, According to Article 287, a State can one could conclude that the rules of Part choose between 1) the International XV, notwithstanding the fact that they are Tribunal on the Law of the Sea, very elaborate, have only a residual nature established in Hamburg, Germany, 2) the and can be easily put aside if the parties so ICJ, located in The Hague, the agree. Netherlands, 3) normal arbitration, or 4) Turning to the Section 2, the question can special arbitration. Everybody can make be raised as to the specificity of the this choice freely, and if these choices compulsory procedures entailing binding correspond, then Parties know where to decisions? Article 286 lays down its basic introduce their case. Of course, countries premise. If any dispute arises concerning may also make different choices, or no the interpretation or application of the choice at all, and then the question arises 1982 Convention between two States as to how the system operates when there Parties to that document, a legal is a lack of choice by at least one Party or obligation exists for one of them to accept the choices made do not match? a unilateral application submitted by the Professor Louis B. Sohn, was able to other. For the first time in a multilateral untangle this difficult knot by specifically agreement of a universal nature we thus asking States for their preferred second have a unilateral right for all States Parties choice. The answers he received showed to an international agreement to take an overwhelming preponderance in favour another State Party before a judicial body of arbitration, meaning that almost all for adjudication and the compulsory States agreed that if they could not have settlement of their dispute under that their first choice, they would be willing to document. This is totally different than the settle for arbitration. That is also what is prevailing situation under general reflected in the 1982 Convention today: If International Law. I would like to stress, there is no match between the will of the once again, that such a right does not exist States in this respect, arbitration becomes before the ICJ, despite the fact that all the default procedure. United Nations Member States accept the Statute of the ICJ, because the jurisdiction Furthermore, special new rules needed to of this institution requires the consent of be included for the proper application of

Part XV to the European Union, an applicable. It is noteworthy that China did international organization. As the not include such exceptions when it made European Union can for instance not a declaration at the time of ratification in appear before the ICJ, which is only open 1996, but only did so later on by means of to States, a Special Annex to the 1982 a separate declaration issued in 2006. Convention was drafted for this purpose For the rest, Part XV was conceived as a (Annex IX). The European Union now has fault-proof system, meaning that even if the same choice as the other States one of the parties does not want to appear, Parties, with the exception of the ICJ. the other Party may request that As of present, few States have made an procedure to continue. If so, the court or explicit choice under Article 287. As a tribunal has the obligation to continue the consequence, arbitration will often be the dispute settlement procedure, whether the way to go forward if two States have a other party participates or not. The court dispute. or tribunal will continue the case and the What then finally are the exceptions dealt decision will be binding on both parties. with in Section 3? A distinction needs to With respect to the default procedure, i.e. be made between automatic and optional arbitration, this has explicitly been exceptions. Automatic exceptions grosso provided in Article 9 of Annex 7. One will modo either relate to fisheries issues or find a similar provision with respect to the marine scientific research, both as they ICJ (Article 53 of the Statute of the ICJ), relate to the exclusive economic zone. the International Tribunal for the Law of Optional exceptions, on the other hand, the Sea (Article 28 of Annex VI) and are only applicable if States have opted in. special arbitration (Article 4 of Annex They can relate to dispute settlement VIII, which refers back to Article 9 of procedures concerning sea boundary Annex VII). delimitations or historic titles and bays. As far as arbitration is concerned, this has These kind of exceptions were, of course, happened twice so far: The first time in important in the South China Sea the Arctic Sunrise Case between the arbitration. But also disputes concerning Netherlands and the Russian Federation; military activities or law enforcement the second time in the case brought by the activities can be excluded. Again this Philippines against China relating to the exception was at stake in the case brought South China Sea. In both cases the arbitral by the Philippines against China. If a State tribunal delivered an award on the merits. makes use of those exceptions by means of Non-participation is a new development a declaration when signing, ratifying or that might be worrisome to some extent. acceding to the 1982 Convention, or any 5. South China Sea time thereafter, Section 2 will no longer be

If we apply the above-mentioned legal the award, Taiwan raised two points in a framework to the South China Sea, it is first reaction: Firstly, it did not accept that worth noting that, with only few it was referred to by the Tribunal as exceptions, all States in the South China ‗Taiwan Authority of China‘; secondly, it Sea have ratified the 1982 Convention. did not accept that Itu Aba/Taiping was The exceptions relate to Cambodia, which not an island with an exclusive economic is not a claimant State, and Taiwan, which zone and a continental shelf but a rock for reasons which are totally outside of the deprived of those same maritime zones. 1982 Convention, can simply not become a But the order of the points raised speaks Party to this document because of its for itself on how difficult it is for Taiwan to present status under International Law. function on the international level at The latter gave rise to lot of intricate legal present. and practical problems, which also None of the South China Sea States that burdened the arbitration initiated by the are bound by the 1982 Convention made a Philippines against China. One of the choice of forum declaration as provided by concrete problems that arose during these Article 287 so far. This is also important to proceedings was how to make sure that note, because it implies that arbitration point of view of Taiwan was duly taken becomes the default procedure in this into consideration once the Tribunal region. decided that it would make a ruling on the Finally, it is to be noted that this default exact legal status (Article 121 (2) island or system to arrive at a binding decision Article 121 (3) rock) of Itu Aba/Taiping? under the 1982 Convention proved to Taiwan became very annoyed with this function in a fault-proof manner in direction taken by the Tribunal. In order practice. The case between China and the to be heard, Taiwan expressed its own Philippines makes that very clear. China legal position on the issue by means of a did always refuse to participate, but now Position Paper on ROC South China Sea the decision on the merits has been Policy and an amicus-curiae submission rendered and China, as a Party to the 1982 by the Chinese (Taiwan) Society of Convention, is obliged to respect it. Again, International Law, to which the it is only in the Law of the Sea that you can Philippines made no objections. That way, have these unilateral actions. You cannot the Tribunal was at least able to look at the have them outside of that system. Taiwanese arguments within the Moreover, only China and Thailand have framework of arbitration. so far made use of the optional exceptions under Article 298. Both countries exclude But in so doing, the Tribunal used in its delimitation, historic title and bays as well award the denomination ‗Taiwan as military and enforcement activities Authority of China‘, which Taiwan finds from the application of Part XV. very denigrating. So after the rendering of

6. Conclusions the agreements of 1899 or 1907. It is In conclusion, it can be stated that the rather to be found in the 1982 Convention. 1982 Convention provides for an Party XV of the 1982 Convention certainly exceptional framework as far as the provides a new window of opportunity. At settlement of Law of the Sea related the same time it cannot be denied that it disputes is concerned. As you see it on also holds certain dangers. The fact that slide number 18, a counsel of the two important States, both permanent Philippines defends his client in a room of members of the Security Council of the the Peace Palace in The Hague, the United Nations, have refused to Netherlands, which is of course the home participate in arbitration procedures not only of the ICJ but also of the initiated against them in accordance with Permanent Court of Arbitration. Part XV of the 1982 Convention, might be I mention these two institutions on considered a bad omen. And even though purpose, because neither of them forms some voices have been heard advising the the basis of the award rendered between Chinese government to withdraw from the China and the Philippines on 12 July 2016. 1982 Convention, I can assure you that It is not a case before the ICJ, but because this is not a steadfast political position of of multiple instances of misreporting in these countries. I can inform you that the the press this Court felt obliged to place a Russian Federation, for instance, has notice on its website early July, when the recently been involved in yet another award in this case had been rendered arbitration instituted against it, this time public, to inform the public that this by Ukraine, with respect to maritime particular award was totally unrelated to activities in the area around the Crimea. the ICJ. At the same time, I would like to You will see that the Russian Federation emphasize that this is not an arbitration of decided to participate in this arbitration. the Permanent Court of Arbitration either, It means that apparently there is some even though you will find the award counterweight to those sceptical voices posted on their official webpages. The only indicating that the South China Sea link between this arbitration and the decision might well induce States to Permanent Court of Arbitration is that the withdraw from the 1982 Convention, arbiters in the case between China and the because they don‘t like the way these Philippines decided to make use of the arbitrations have been ran. The Russian Registry of the Permanent Court of Federation at least has taken new Arbitration. The only link is consequently approach and appears at present willing the Registry services. The basis of again to defend its legal position in front jurisdiction empowering the arbiters to of such arbitral bodies. render their award in 2016 is consequently With that, I would like to conclude my not to be found in the system of the presentation. Thank you. Permanent Court of Arbitration, namely

PART III PEACE INITIATIVES FOR THE SOUTH CHINA SEA PROPOSALS ON POSSIBLE FORMS, MECHANISMS, OR METHODS OF THE PEACEFUL RESOLUTION OF DISPUTES

Erik Franckx The topic that I will address this pretend whatever they want. But law is afternoon, namely the South China Sea there, I think, to indicate the outer limits Arbitration and the Entitlement of Islands, of this discretionary power beyond which might seem somewhat controversial. This even claims of sovereign States become is a session on the way forward and I am highly unconvincing. And with respect to rather going back to the Arbitral Award in the kind of maritime zones small maritime the case initiated by the Philippines features can generate, I consider this against China. And specifically to that part Award to constitute a major step forward. of the Award which addresses the So, as to the future, it might well be that treatment of small maritime features China will continue to say urbi et orbi that under present-day International Law. they do not respect the decision. But I am I find it nevertheless a useful and even convinced that when China will continue necessary exercise to go back to this the process and start going back to a arbitration. And on this point I disagree bilateral mode, the different countries somewhat with the previous speaker. I involved will of course no longer be very disagree with the proposition that the much impressed when China puts forward arbitration will be unable to solve the its nine-dash-line argument as part of the lingering South China Sea disputes and discussions. The Tribunal in other words that it will only be of secondary has determined the outer limits within importance at best. If you look at the way which the States will from now on have to forward, law can also be a useful tool in frame their aspirations. And that is why I order to restrict the framework inside of am of the opinion that it is important to which the claims of the parties will have to try to go back to that part of the Award be fitted. which deals with the entitlements of maritime features. The latter constitutes As States are sovereign under moreover a non-negligible part of the contemporary International Law, they can Award because about 20 per cent of the whole Award is devoted to this issue. My talk today will be very focused: It  President of the Belgian Society of International concentrates on one specific convention, Law, Research Professor at the Vrije University namely the United Nations Convention on Brussel, Director of Centre for International Law the Law of the Sea (1982 Convention), one

54 specific provision of that document, Justice (ICJ). As I will try to demonstrate, namely Article 121, and one specific this is particularly so if the judicial paragraph of that provision, namely decision in question for the first time Paragraph 3. interprets a particular conventional First of all I will provide some background provision, which hitherto had been as to my own interest in this particular shrouded in mystery. topic. Then I will try to illustrate the When the International Maritime Law importance of the issue. Article 121 of the Institute, located in Valletta, Malta, 1982 Convention itself will be analyzed celebrated its 25th anniversary, the next in some detail. Before drawing some decision was taken to publish a Manual on conclusions, the application in practice of International Maritime Law, covering this particular article by courts and public as well as private law issues. When tribunals prior to the 2016 Award in the I was asked to contribute to Volume 1 on case between China and the Philippines the Law of the Sea, the editors suggested will be scrutinized. as title ―The Regime of Islands and 1. Personal Interest in the Topic Rocks‖. This contribution was written in tempore non suspecto, meaning before the Let me start by explaining to you why I Award on jurisdiction and admissibility have a particular interest in this issue. I and the Award on the merits had been have attended a good number of rendered in the arbitration initiated by the conferences on the South China Sea lately Philippines against China, namely on 29 and often speakers would show you October 2015 and 12 July 2016 pictures, like the ones on slide number 4, respectively. and ask the question: Is this an island or this is a rock? But besides the person 2. Importance of the Issue raising the question, everybody else in the What is the importance of the issue? The room would also have their own personal basic premise in International Law is quite opinion. As lawyers we know that it is not simple, namely that islands should be really through the expression of personal treated exactly the same as land territory. opinions that the law is developed these According to the maxim ―la terre domine days, no matter how well-respected the la mer‖ (the land dominates the sea) it speaker who asked the question might was generally agreed upon that islands have been. A much more trustworthy should not be treated any differently than source these days to move the law forward land territory. Some 19th century case law are judicial decisions, as a subsidiary firmly established this principle of means for the determination of rules of International Law. Also treaty law of that law as provided in Article 38 (1)(d) of the period governing fisheries can be relied Statute of the International Court of upon in support of this maxim. As fish

55 resources are not spread out evenly over of its continental shelf substantially the oceans, shallow waters are generally extending beyond this figure. This is of known for their rich fishing grounds. course an enormous maritime zone for not When overfishing became an issue in the really possessing very much land to start North Sea, for instance, a treaty was with. It also easily explains why States are concluded in 1882 according to which at present so eager to have possession of even low-tide elevations could serve as these very small maritime features. As will starting point for projecting the fishery be seen next, the international community competence of coastal States seaward. The found it necessary during the Third United rule that the land dominates the sea also Nations Conference on the Law of the Sea, found its reflection in the 1958 after first having extended maritime conventional framework. A continental jurisdiction to at least 200 nautical miles shelf, for instance, could not only be from shore, to subsequently take away claimed from continents proper, but also some of the sharp edges the continued from islands, as explicitly stated in Article assimilation of land and islands would 1 in fine of the Convention on the otherwise have under such new Continental Shelf. The ICJ has reaffirmed conditions. this basic rule of thumb in the Law of the 3. Article 121 of the 1982 Convention Sea many times over in its judgments. To achieve this goal, a new addition to But this policy of treating islands in existing conventional law is to be found in exactly the same manner as terra firma the 1982 Convention, namely Article 121 started to be questioned during the Third (3). This paragraph reads: ―Rocks which United Nations Conference on the Law of cannot sustain human habitation or the Sea (1973-1982). If before the economic life of their own shall have no assimilation of land and islands had exclusive economic zone or continental applied at a time when the seaward shelf.‖ If the ultimate purpose of this projection of coastal State competence paragraph is clear, namely that certain concerned maritime zones of rather small maritime features would no longer limited extent, this drastically changed be treated on an equal footing as land after the creation of exclusive economic because they would be deprived of any zones of 200 nautical miles, as well as the exclusive economic zone or continental introduction of notion of continental shelf, its formulation is enigmatic, to say margin, resulting in legal continental the least. shelves extending at least to the same distance, but sometimes also far beyond. Paragraph 3 is so complicated to interpret Today, indeed, an isolated tiny maritime because it has been the invention of one feature could easily generate a maritime single person, namely the Chairman of the zone of 431 014 km², with the possibility Second Committee, who at the request of

56 the President of the Conference in 1975 consensus which had in the meantime needed to combine all the proposals which been reached on the other provisions. But had been made so far in order to arrive at the underlying problem present from day an informal single negotiating text. He one of course remains, and that is that this certainly did the best he could by gathered paragraph does not make much sense a little bit here, a little bit there, putting it when one tries to understand it. all together in one single paragraph while Let us now briefly dwell in turn on each of making sure he would generate the widest the three separate paragraphs that Article possible support as many delegations 121 contains. With respect to Paragraph 1, would find some part of their proposals which provides the definition of an island, reflected in it. Only the combination of all not much needs to be said because this these bits and pieces, sometimes paragraph contains nothing new when generated in different contexts, proved to compared with what had already been be sibylline at best, with the hidden codified in the 1958 Conventional system. meaning probably not even known to its Moreover, as confirmed by the ICJ, this creator. The fact that the Chairman of the provision also forms part of customary Second Committee was hospitalized law. during that time period and that this task fell in reality fell to the Rapporteur and a Paragraph 2 gives you the legal person from the Secretariat, does not consequences once a feature fulfills the really change these findings. requirements of Paragraph 1. Also this Paragraph 2 is uncontested as it already And even though it was clearly stated that formed part of the 1958 conventional this new text was only the basis for further system where land and islands were place negotiations, the substance of this on an equal footing. This time, however, paragraph did not change anymore after the sentence is introduced by a new its introduction in 1975. Not that all States introductory part stating ―[e]xcept as agreed to its wording, because a good provided for in Paragraph 3‖, to which we number of proposal were made afterwards will turn next. But before doing so, it on both sides of the spectrum, and this should be noted that, just like Paragraph 1, until the last session of the Conference. this provision forms part of customary The fact remains that none of them was International Law, as confirmed by the able to muster sufficient support to be ICJ. adopted by consensus. This made that the paragraph introduced in 1975, despite or Paragraph 3 is of much more recent maybe thanks to its vagueness, survived nature as it only saw the light of day in the different draft versions and finally also 1975. I tried to explain to you the way it found its way into the 1982 Convention, as was created during the Third United nobody apparently dared to upset the Nations Conference on the Law of the Sea.

This also helps to explain the difficulties see that international courts and tribunals encountered at present when States want have had many opportunities to interpret to apply this paragraph, the terms of this particular provision. Even though the which are utterly unclear. It will suffice to Parties before them were more than once give you a few examples. The term ―rocks‖, disputing the very fact as to whether a does it mean something concrete, particular maritime feature was an Article something hard or can it also mean islands 121 Paragraph 2 island or rather a made of sand or mud? The legal history of Paragraph 3 rock, these bodies always this paragraph will not be very helpful in sidestepped this problematic issue trying to clarify the exact meaning of this probably because they did not want to term. Also the notions ―cannot sustain interpret such a difficult provision. They human habitation‖ and ―cannot sustain found relief in the law of maritime economic life‖ are open to a broad delimitation, which is very flexible. Ever spectrum of possible interpretations. since the de-codification of this law as far Because of its highly unclear content, I as the continental shelf is concerned by suppose, publicists were almost the Third United Nations Conference on unanimous in concluding that this the Law of the Sea, instead of providing particular paragraph of Article 121 did not the method to be applied (as in Article 6 of form part of customary International Law. the 1958 Convention on the Continental But then, in 2012, the ICJ suddenly Shelf) the law only mentions the result to declared that Paragraph 3 formed part and be achieved, namely an equitable solution parcel of the ―island‖ provision and (Article 83 (1) of the 1982 Convention; a needed to be read together with similar rule also applies to the exclusive Paragraphs 1 and 2 as a single whole. It economic zone by means of Article 74 (1)). meant that no one can simply do away Within this flexible framework courts and with it any longer, for it even applies to tribunals prefer to decide that they do not give such contested maritime features non-Parties to the 1982 Convention. Unless States persistently object, they more than 12 nautical miles from a simply have to apply Paragraph 3 because, delimitation point of view, and if that is according to the ICJ, it forms part of the case, the determination as to whether customary International Law. One the feature in question is to be considered consequently cannot apply Article 121, a Paragraph 2 island or a Paragraph 3 rock without also taking into consideration its becomes simply redundant because the Paragraph 3. maritime zone its receives corresponds with the lowest common denominator of 4. Application in Practice the outcome of such determination, When one tries to understand how this namely that a Paragraph 3 rocks generates provision has been applied in practice, we a 12 nautical mile territorial sea. In

58 maritime delimitation law this is the respect‖ (Erik Franckx, The Regime of absolute minimum a maritime feature, Islands and Rocks, in: David Joseph which is above water at high tide, will Attard, Malgosia Fitzmaurice and generate, unless it touches another Norman A. Martinez Gutiérrez (eds.), The territorial sea. If one were to grant a IMLI Manual on International Maritime maritime zone exceeding 12 nautical Law, Volume I, The Law of the Sea, miles, the determination of whether that Oxford, Oxford University Press, 2014, feature falls under Paragraph 2 or 3 would p. 99, 124). Once the Arbitral Tribunal have to be made in order to ascertain decided in 2015 that it did have whether such maritime zone beyond 12 jurisdiction to proceed with this case, it nautical mile was in accordance with became highly probable that this question International Law. would have to be answered in the

Until the Arbitration initiated by the affirmative. Philippines against China, this had been Let us now turn to the 2016 Award on the the tread of Ariadne throughout the cases, merits to see how the Tribunal has tackled listed on slide 12, in which the issue of this issue. But before doing so, there are a Article 121 (2-3) was touched upon. It is few preliminary considerations that I important to understand that it certainly would like to mention. The first one was not a manifestation of arbitral concerns the opposition oftentimes found activism that this steady policy adopted by in the literature between islands on the the ICJ was reversed in the Award of 2016. one hand and rocks on the other hand. No This arbitration simply did not have the matter how useful this distinction may be luxury of being able to rely on the law of from a pedagogical point of view, I believe maritime delimitation because, as I this basic distinction to be incorrect. One already mentioned this morning, China in does not have to distinguish so much 2006 had explicitly excluded maritime between islands and rocks, but rather delimitation from the application of between islands and rocks which cannot Section 2 of Part XV, i.e. compulsory sustain human habitation or economic life procedures entailing binding decisions. of their own. Both of these categories When I finished my contribution to the remain moreover islands, as indicated by festivities surrounding the 25th the chapeau of Article 121. If this anniversary of the International Maritime proposition finds support in the literature, Law Institute, the last sentence I wrote it is more difficult to find similar support was the following: ―It will be interesting to for the submission that two kinds of rocks see whether the recently established exist: Those that cannot sustain human arbitral tribunal in the dispute between habitation or economic life of their own China and the Philippines will be the first and those that can. In the latter case, such to provide further guidance in this rocks can generate exclusive economic

59 zones and continental shelves. Last, but codified in the 1969 Vienna Convention on not least, it implies that there can also the Law of Treaties (Articles 31-33), to exist islands which cannot sustain human which both China (3 September 1997) and habitation or economic life of their own, the Philippines (15 November 1972) are a but will nevertheless be able to generate Party. As this treaty does not apply exclusive economic zones and continental retroactively (Article 4 of the 1969 Vienna shelves as they fit under Paragraph 2. As Convention on the Law of Treaties), it is the Tribunal downplayed the importance important to note that these rules also of the element size, a lot of criticism has form part of customary International Law been directed toward the Tribunal‘s Award in order to apply them in casu to the because it would mean that certain interpretation of the 1982 Convention. sizeable maritime features could still fall First of all, as far as the term ―rocks‖ is under Paragraph 3 as interpreted by the concerned, the Tribunal for the first time Tribunal. Based on the submissions just clearly states that this notion does not made, I would tend to argue they are not require any solid or concrete substance. To rocks and thus escape the application of reach the opposite conclusion would have that third paragraph. been totally illogical, as it would give to The Award of 2016 starts out by looking at such a rock 12 nautical miles, whereas if the arguments of the Parties. Because you had a sand bank of the same size, this China refused to participate in the would generate a 200 nautical mile zone arbitration, the Philippines found and possibly a continental shelf extending themselves in a position where they not even further at sea. only had to argue their own position but The Tribunal also emphasizes that the also had to guess as to what arguments notion ―cannot‖ relates to a capacity, China might well want to develop in order meaning that it aims at a theoretical to provide relevant counter arguments to possibility, not a practical reality. It is thus the Tribunal. China indirectly informed important to go back in history in order to the Tribunal of its main arguments ascertain whether a specific maritime concerning the jurisdiction by means of a feature was able to sustain human Position Paper published on 7 December habitation and economic life of its own: If 2014, which the Tribunal subsequently humans have never lived there before this considered to be a plea according to its is an indication that the feature should own rules of procedure so that it could rely probably be qualified as a Paragraph 3 on this document anyway. rock, but if there has been life there in the The Tribunal subsequently decided to past the presumption would rather be that apply the general rules of treaty it is a Paragraph 2 island. A similar logic interpretation under International Law as applies to the economic life requirement.

The next notion concerns the word maritime zones in excess of 12 nautical ―sustain‖. According to the Tribunal, this miles. implies something has to continue over a After having interpreted Article 121, the longer period of time. What is needed is Tribunal then applies these findings in consequently a sustained kind of human practice and comes to the conclusion that habitation and economic life. If applied to all of the features in the Spratly Islands habitation, one type is indeed the are to be considered as rocks falling under settlement of people living there for a Paragraph 3. The Tribunal reaches that longer period of time. According to the conclusion after having studied in detail to Tribunal it cannot be anything that is most prominent features constituting this imported from the outside or ephemeral. island group and having decided that none As far as the economic life is concerned, it of them was able to sustain human implies that people living on the maritime habitation or economic life of its own, as feature should be able sustain themselves these terms had just been interpreted. by means of local economic activities. A purely extractive economic activity When I go back to the article that I wrote organized from abroad would therefore in 2014, some of the conclusions reached not be sufficient. In a similar vein, an at that time are totally in line with the economic activity that solely depends on findings of the Arbitral Tribunal. A good the exclusive economic zone or the example is the interpretation of the term continental shelf surrounding the ―rocks‖. Others, however diverge. I for instance disagree with the Tribunal on the maritime feature cannot be sufficient, as these zones can only be attributed if that meaning of the term ―or‖ used in maritime feature already fulfills the Paragraph 3. The Tribunal does seems to requirements mentioned in Paragraph 3. reach its alternative reading of both Otherwise, as the Tribunal rightly conditions in order to make sure that remarks, this would become a circular certain small island States, which needs provision. more than one maritime feature to be able to have an economic life of its own, need Finally, there are the conjunctions used in to be able to comply with only one of these this Paragraph 3, namely twice the word conditions. I personally believe this ―or‖. Even though the Philippines had unnecessarily complicates the issue argued that the conjunctions in this because the Tribunal immediately adds Paragraph 3 should be read as ―and‖, the that it acknowledges that both conditions Tribunal disagrees, implying that it is are normally interlinked. An argument sufficient that one of the two elements, from logic and argumentation can be namely human habitation or economic life made to argue that both conditions need of its own, is present in order for that to be fulfilled simultaneously. If you would maritime feature to be able to claim

61 like to know more about it, I refer you 5. Conclusions back to my 2014 article, mentioned above. In conclusion, I cannot deny that I have But I believe that argument to make sense. some critical comments with respect to As I tried to argue there, everybody agrees, this 2016 Award. Nevertheless, I believe as far as the second part of Paragraph 3 is that this first interpretation by a judicial concerned (―shall have no exclusive body of Paragraph 3 of Article 121 of the economic zone or continental shelf‖), that 1982 Convention should be very much the ―or‖ should be interpreted as having a welcomed by the international community cumulative and not an alternatively of States. meaning. A State will not be able to claim just one of the two zones if the maritime With almost no instance of State practice feature in question cannot sustain human available and bilateral agreements having habitation or economic life of its own even limited value, because their treatment of though the two zones are connected with maritime features as Paragraph 2 islands the word ―or‖. So why not apply the same or Paragraph 3 rocks does not have to be logic with respect with the first part of that based on law, not much guidance was Paragraph 3? available to States prior to the 2016 Award. Size by itself is not sufficient according to the Tribunal. I believe this approach to be In such circumstances States very much rather problematical as well. There are rely on the guidance provided by courts many countries that feel very unsecure at and tribunals. The ICJ has had many present because their larger maritime occasions to do just that, but preferred to features could now be qualified as rocks hide behind the screen of maritime falling under Paragraph 3, even though boundary law. This Arbitral Tribunal, they already established exclusive however, did not have that possibility and economic zones and continental shelves needed to tackle the issue up front. As a result, its 2016 Award contains a long- around them. Countries, like Untied States, possess a good number of such awaited clarification and interpretation of features and they are certainly not willing that enigmatic provision. It does not seem to retract the maritime claims that they to be fair, however, to blame the Tribunal have made in the past. If one however for having done so, a critique often heard considers that some maritime features can in certain quarters. be qualified as islands without human On the contrary, it is to be considered a habitation and economic life of their own, welcome development of the law. and, because they are islands, still fall Personally I consider it to be a courageous under Paragraph 2, as I argued before, and well-reasoned first step. But at the such kind of objections could be overcome same time it is only a first step. Now that as to the future. the ICJ declared in 2012 that Paragraph 3

62 of Article 121 forms part of customary the interpretation of Article 121 more than International Law, it is to be hoped that one decision will be needed as well, for other courts and tribunals will now be whether one deals with maritime more inclined to also address this issue delimitation or the qualification of head on. If this were to be the case, the maritime features, not two cases are interpretation of this important believed to be identical. That way, not only conventional provision, forming part of the interpretation of the 1982 Convention, customary International Law, could be but also the content of customary further refined in a manner like the law of International Law more generally would maritime delimitation, which has been be able to profit from such further fine- described as a kind of judge-made tuning. common law. As we know, the law on And this is where I would like to end my maritime delimitation needed many cases presentation Thank you very much for before a certain tendency could be your kind attention. discerned. It is believed that in the case of

ENFORCEMENT OF THE PHILIPPINES V. CHINA ARBITRAL AWARD THROUGH DE-POLARIZATION AND STATE SOCIALIZATION INTO A RULES-BASED REGIME IN THE SOUTH CHINA SEA

Frank Lloyd B. Tiongson inequality, states of power, but always ―By power… I do not understand a local and unstable. Omnipresence of general system of domination exercised by one element or one group over another, power: not at all because it regroups whose effects… traverse the entire body everything under its invincible unity, but social… It seems to me that first what because it is produced at every instant, at needs to be understood is the multiplicity every point, or moreover in every relation of relations of force that are immanent to between one point and another. Power is the domain wherein they are exercised, everywhere: not that it engulfs everything, and that are constitutive of its but that it comes from everywhere.‖- organization; the game that through Michel Foucault, History of Sexuality incessant struggle and confrontation transforms them, reinforces them, inverts It could be said that China‘s disavowal of them; the supports these relations of force the 2016 Arbitral Award of the Permanent find in each other, so as to form a chain or Court of Arbitration in Philippines v. system, or, on the other hand, the gaps, China rests upon its dogged efforts to the contradictions that isolate them from structure the discursive field of the South each other; in the end, the strategies in China Sea dispute along the lines of which they take effect, and whose general asymmetry and polarization. This is pattern or institutional crystallization is evident in China‘s persistent position that embodied in the mechanisms of the state, the regional conundrum is best resolved in the formulation of the law, in social through ―friendly negotiations‖ with hegemonies. The condition of possibility individual claimant states and its of power… should not be sought in the characterization of the Arbitral Award as primary existence of a central point, in a essentially an adjudication of sovereign unique space of sovereignty whence would title and maritime boundary delimitation. radiate derivative and descendent forms; The discursive practices engendered by it is the moving base of relations of force this structuring includes sustained radio that incessantly induce, by their warnings against freedom of navigation exercises in certain areas of the South China Sea as well as ramped up military presences in the region, among others.

 Attorney, National Union of People‘s Lawyers, As seen, the resort to ―friendly Philippines negotiations‖ saw the current Philippine

64 administration virtually compromising the address the subject dispute through gains from the Arbitral Award in exchange friendly negotiations.1 for lucrative trade and financing This paper submits that resolving the agreements under the ambit of the Duterte regional conundrum could also be framed regime‘s so-called ―Build Build Build‖ as a resistance to China‘s discursive program – a massive infrastructure drive structuring by de-polarizing the dispute‘s estimated to cost USD 36 billion – narrative towards the organic underscoring the asymmetrical nature of establishment of a symmetrical, rules- China‘s relationship with the Philippines. based regime in the South China Sea. It is The Duterte administration has also suggested that the 2016 Arbitral Award in shown itself prone to subscribe to the Philippines v. China could be strategically aforementioned structuring by China as enforced, in the near-term, through seen in President Rodrigo Duterte‘s usual multilateral efforts in establishing binding zero-sum rhetoric on how a Philippine rules of conduct with particular attention assertion of its claims would necessarily to the Arbitral Tribunal‘s ruling on place the country in a war footing – a Submissions No. 10, 11, 13, and 14 of the testament to how his administration has Philippines and, in the long-term, through succumbed to China‘s polarization of the China‘s gradual ―socialization‖ into the South China Sea dispute. rules-based framework of the Arbitral The structuring by China is, in fact, Award through the organization of consistent with its objections at the outset Commissions of Inquiry for the South of the arbitral proceedings in Philippines China Sea. v. China as registered in its publicized 07 As mentioned, the resolution of the December 2014 Position Paper where it Arbitral Tribunal on Submission Nos. 10, characterized the subject matter of the 11, 13, and 14 of the Philippines already Philippines‘ submission as, essentially, serves as sufficient basis for multilateral territorial sovereignty – beyond the efforts to enforce the Arbitral Award jurisdiction of the Arbitral Tribunal inasmuch as the said submissions pertain constituted under the auspices of the to conduct and/or do not tend to be United Nations Convention on the Law of contingent on findings on maritime the Sea (UNCLOS) – and the resort to entitlement or territorial sovereignty arbitration by the Philippines as an ―abuse compulsory arbitral procedures‖ as well as 1 Position Paper of the Government of the People‟s a supposed derogation of its duty to Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines (7 December 2014), available at (hereinafter ―China‘s Position Paper‖).

65 which is at the heart of the polarized continue to fish in the manner of their narrative advanced by China. forebears.3

Respect for and recognition of It then concluded: traditional fishing rights In the Tribunal‘s view, it is not necessary Submission No. 10 of the Philippines, for to explore the limits on the protection due one, charged that China unlawfully failed in customary international law to the to prevented Filipino fishermen from acquired rights of individuals and pursuing their livelihoods by interfering communities engaged in traditional with traditional fishing activities at fishing. The Tribunal is satisfied that the Scarborough Shoal. The Arbitral Tribunal complete prevention by China of fishing by began its own disquisition on this matter Filipinos at Scarborough Shoal over as follows: significant periods of time after May 2012 … the following discussion of fishing rights is not compatible with the respect due at Scarborough Shoal is not predicated on under international law to the traditional any assumption that one Party or the fishing rights of Filipino fishermen. This is other is sovereign over the feature. Nor is particularly the case given that China there any need for such assumptions. The appears to have acted to prevent fishing by international law relevant to traditional Filipinos, specifically, while permitting its fishing would apply equally to fishing by own nationals to continue. The Tribunal is Chinese fishermen in the event that the cognisant that April and May 2012 represented a period of heightened Philippines were sovereign over Scarborough Shoal as to fishing by tensions between the Philippines and Filipino fishermen in the event that China China at Scarborough Shoal. China‘s dispute with the Philippines over were sovereign.2 sovereignty and law enforcement at The Arbitral Tribunal explained that the Scarborough Shoal, however, was with the legal basis for protecting artisanal fishing: Philippine Government. The Tribunal … stems from the notion of vested rights does not see corresponding circumstances and the understanding that, having that would have justified taking action pursued a livelihood through artisanal against Filipino fishermen engaged in fishing over an extended period, their traditional livelihood or that would generations of fishermen have acquired a have warranted continuing to exclude right, akin to property, in the ability to Filipino fishermen from Scarborough Shoal for months after the Philippines had withdrawn its official vessels. The Tribunal notes, however, that it would

2 Par. 793, Arbitral Award. 3 Par. 798, ibid.

66 have reached exactly the same conclusion The above is in light of the resolution of had the Philippines established control the Arbitral Tribunal on Submission No. 11 over Scarborough Shoal and acted in a of the Philippines which charged China of discriminatory manner to exclude Chinese violating its obligations under the fishermen engaged in traditional fishing.4 Convention to protect and preserve the It is submitted that a coordinated marine environment at Scarborough undertaking by claimant states to further Shoal, Second Thomas Shoal, Cuarteron formalize recognition of traditional fishing Reef, Fiery Cross Reef, Gaven Reef, rights is possible as such project concerns Johnson Reef, Hughes Reef and Subi Reef. the protection of the private rights of their The Arbitral Tribunal considered: respective citizens. This brings to fore an The substantive provisions relevant to the impetus to establish a regional fisheries marine environment comprise their own management regime in waters where Part XII of the Convention. At the outset, around 55 percent of global marine fishing the Tribunal notes that the obligations in vessels and an industry employing at least Part XII apply to all States with respect to 5 3.7 million people operate. the marine environment in all maritime Preservation of marine areas, both inside the national jurisdiction environments of States and beyond it. Accordingly, The cited regime could also very well questions of sovereignty are irrelevant to include a marine environment the application of Part XII of the Convention. The Tribunal‘s findings in management regime through the establishment, for instance, of a Fishery this Chapter have no bearing upon, and and Environmental Management Area in are not in any way dependent upon, which the South China Sea, as suggested by the State is sovereign over features in the 7 Center for Strategic and Environmental South China Sea. Studies‘ Expert Working Group on the Verily, the establishment of a regional South China Sea.6 formation dedicated to the protection of the marine environment in the South China Sea has firm basis in UNCLOS, as 4 Par. 812, ibid. the Arbitral Tribunal affirmed that states 5 Fridtjof Nansens Institute, ―Fish, not oil, at the have the ―duty to cooperate‖ in the heart of the South China Sea conflict‖, (October 24, 2017), available at . (September 13, 2017), available at 6 South China Sea Expert Working Group, ―A Environmental Cooperation in the South China 7 Par. 940, Arbitral Award.

67 preservation of the marine environment. its ruling, the Arbitral Tribunal referred to It cited: relevant provisions of the 1972 Convention

Part XII of the Convention also includes on the International Regulations for Article 197 on cooperation, which requires Preventing Collisions at Sea (COLREGS), States to cooperate on a global or regional to which China and the Philippines are basis, ―directly or through competent signatories. international organizations, in It bears noting that even during the formulating and elaborating international pendency of the arbitral proceedings, the rules, standards and recommended Philippines and China, along with Brunei, practices and procedures consistent with Cambodia, Indonesia, Malaysia, this Convention, for the protection and Singapore, and Thailand, being members preservation of the marine environment, of the Western Pacific Naval Symposium, taking into account characteristic regional adopted the Code for Unplanned features.‖ In its provisional measures Encounters at Sea (CUES) in 2014. The order in MOX Plant, the International adoption was followed by a Joint Tribunal for the Law of the Sea Statement on the Application of the Code emphasised that ―the duty to cooperate is for Unplanned Encounters at Sea in the a fundamental principle in the prevention South China Sea on September 7, 2016 of pollution of the marine environment signed by the heads of state/government under Part XII of the Convention and of Association of Southeast Asian Nations general international law.‖8 (citations (ASEAN) Member States and China. omitted) In the said Joint Statement, the Unplanned encounters at sea aforementioned parties reaffirmed their Submission No. 13 of the Philippines, commitment to the 2002 Declaration on meanwhile, charged China of breaching its the Conduct of Parties in the South China obligations under the UNCLOS by Sea (DOC), ―including the importance of operating its law enforcement vessels in a the freedom of navigation and overflight, dangerous manner causing serious risk of as provided for by universally recognised collision to Philippine vessels navigating principles of international law including 10 the vicinity of Scarborough Shoal. the [UNCLOS]‖. The parties also recognized that ―maintaining peace and As held by the Arbitral Tribunal, its stability in the South China Sea region jurisdiction to rule on the said submission serves the fundamental interests of did not depend on a prior determination of sovereignty over Scarborough Shoal.9In

10 Joint Statement on the Application of the Code 8 Par. 946, ibid. for Unplanned Encounters at Sea in the South 9 Par. 1045, ibid. China Sea, September 7, 2016.

ASEAN Member States and China… as aggravating or extending the dispute and well as the international community‖.11 stems from the purpose of dispute

The foregoing developments highlight the settlement and the status of the States in capacity of relevant parties to build a question as parties in such a proceeding. consensus around the matter at the heart Indeed, when a court or tribunal issues of Submission No. 13 of the Philippines. provisional measures directing a party to They likewise point to the capacity of refrain from actions that would aggravate claimant states to rally around related or extend the dispute, it is not imposing common concerns enumerated in the a new obligation on the parties, but 2002 DOC as follows: safety of navigation rather recalling to the parties an and communication at sea; search and obligation that already exists by virtue of their involvement in the rescue operation; and combating 12 transnational crime. proceedings. (emphasis supplied) Prohibition against aggravating The ruling of the Arbitral Tribunal serves and extending disputes merely as an affirmation of the 2002 DOC, signed by China, where relevant parties The Arbitral Tribunal‘s ruling on undertook, among others, to ―exercise self- Submission No. 14 of the Philippines, restraint in the conduct of activities that which charged China of unlawfully would complicate or escalate disputes and aggravating and extending the dispute affect peace and stability‖. As cited by the since the commencement of the Arbitral Tribunal, the duty to refrain from arbitration in January 2013, points to the aggravating or extending disputes is an existence of a duty on the part of parties to obligation existing by virtue of parties‘ a dispute to refrain from aggravating or mere involvement in a dispute, extending the said dispute. As held by the notwithstanding their respective positions Arbitral Tribunal: therein. As shown, it is viable to formulate In the Tribunal‘s view, the proper comprehensive and binding rules intended understanding of this extensive to de-escalate tensions in the South China jurisprudence on provisional measures is Sea independent of determinations that there exists a duty on parties engaged concerning territorial sovereignty or in a dispute settlement procedure to maritime entitlements. refrain from aggravating or extending the Indeed, efforts towards the end envisioned dispute or disputes at issue during the above are slowly, but gradually gaining pendency of the settlement process. This ground as seen in the recent agreement duty exists independently of any order between the foreign ministers of the 10 from a court or tribunal to refrain from ASEAN Member States, on the one hand,

11 Ibid. 12 Par. 1169, Arbitral Award.

69 and China, on the other hand, on a Single ―facilitating a solution of… differences by Draft South China Sea Code of Conduct elucidating facts by means of an impartial Negotiating Text (SDNT) that will serve and conscientious investigation‖ if the said the basis for the adoption of a Code of differences, said to be of an ―international Conduct in the South China Sea, nature‖, neither involves ―honor‖ nor announced on August 3, 2018.13 ―vital interests‖.14 Regime of open-ended inquiry Since 1899, the PCA has administered five The foregoing discussions highlight the fact-finding commissions of inquiry, potent possibilities for a regime of open- starting with the commission created on ended inquiry inasmuch as focus could be November 15, 1904 by agreement between drawn on delimited issues of conduct Russia and Great Britain to address the rather than on zero-sum discourses on so-called North Sea or Dogger Bank Case. sovereign entitlements. Such regime could The incident occurred during the Russo- aid in an epistemic shift towards a Japanese War and concerned the sinking transparent and rules-based discourse of British vessels by the Russian Baltic structuring the South China Sea dispute fleet, mistaking the former for Japanese towards the gradual enforcement of the war ships. The fact-finding investigation whole Arbitral Award itself. by the commission eventually led to the indemnification of the British in a report A regime of open-ended inquiry is not a rendered on February 26, 1905.15 Notably, new concept in international law as such the most recent commission of inquiry framework has been adopted in United administered by the PCA dates back to Nations-mandated commissions of 1961, involving the ―Red Crusader‖ inquiry, particularly in the areas of Incident (Great Britain/Denmark), which international humanitarian law and involved the arrest of a British vessel in international human rights law. the waters of the Faroe Islands. 16 At The mechanism of instituting present, the PCA has instituted the PCA commissions of inquiry is one found in Optional Rules for Fact-Finding Title III of the 1899 Convention for the Commissions of Inquiry.17 Pacific Settlement of International Disputes. Article 9 of Title III sets the scope of commissions of inquiry to 14 Article 9, Title III, 1899 Convention for the Pacific Settlement of International Disputes. 13 Carl Thayer, ―A Closer Look at the ASEAN-China 15 Permanent Court of Arbitration, <―Fact- Single Draft South China Sea Code of Conduct‖, finding/Commissions of Inquiry‖, available at The Diplomat (August 3, 2018), available https://pca-cpa.org/en/services/fact-finding- at look-at-the-asean-china-single-draft-south-china- 16 ibid. sea-code-of-conduct/> 17 ibid.

Significantly, resort to the mechanism is ideas of ancient, sacred heritage or of tacitly recognized in the 1976 Treaty of discovery and territorial ―emptiness‖) to Amity and Cooperation in Southeast Asia, that of ―a discursive, communicative referenced in the 2002 DOC, particularly concept of rationality.‖19 (citations Article 15, Chapter IV thereof, which omitted) provides: He furthered: In the event no solution is reached … the mechanism would serve the through direct negotiations, the High functions noted in Part IV of this Article, Council shall take cognizance of the helping to transition the South China Sea dispute or the situation and shall dispute from a dangerously recommend to the parties in dispute confrontational and emotional political appropriate means of settlement such as discourse into a technical process of good offices, mediation, inquiry or communal inquiry and transnational, conciliation. The High Council may professional legal work. While this would however offer its good offices, or upon not necessarily take the form of a definite agreement of the parties in dispute, resolution to the issue of ultimate constitute itself into a committee of ownership, the deterrence of ethno- mediation, inquiry or conciliation. When nationalist historical narratives and deemed necessary, the High Council shall promotion of a technical idiom of recommend appropriate measures for the judicially-determined ownership prevention of a deterioration of the would constrain subsequent debate 18 dispute or the situation. (underscoring within the formal conceptual supplied) categories of a positivist juridical Mitchell, who recently brought up the Weltanschauung. The progressive possibility of setting up International incorporation of regional powers Commission of Inquiry for the South into judicial transnational legal China Sea, has submitted: processes would, in turn, greatly aid Ultimately, the formation of a in their process of state socialization transnational community of inquirers to into the existing international begin addressing the aporiae of South system. Constituting both a prerequisite sociological foundation for and potential China Sea territorial claims is a first step in redirecting conversations over territory beneficiary of this process, the from the politically volatile, totalizing realm of ―metaphysical universalism‖ (e.g., 19 Ryan Mitchell, An International Commission of Inquiry for the South China Sea?: Defining the Law of Sovereignty to Determine the Chance for 18 Article 15, Chapter IV, 1976 Treaty of Amity and Peace, 49 Vanderbuilt Journal of Transnational Cooperation in Southeast Asia. Law 60 (2016).

71 development of the legal profession has The foregoing is in keeping with the idea been an important element of both state- that the enforcement of the landmark led modernization plans and the 2016 Arbitral Award could very well be an phenomena of burgeoning civil society inter-generational struggle, as stated by throughout East Asia.20 (emphasis Philippine Supreme Court Associate supplied) Justice Antonio Carpio, a leading advocate of the Philippine‘s assertions of its As seen, while a commission of inquiry is maritime entitlements. Before the release mainly a fact-finding body whose findings of the landmark 2016 Arbitral Award, he does not bind the parties to a dispute, noted: except when so agreed upon by the Initially they will always say ‗we will not submitting parties, the process of inquiry honor, we will not comply‘ but the cost of itself serves to gradually usher an non-compliance is much more than epistemic shift in the discourses pervading compliance so eventually they will comply. the South China Sea dispute. This paper It will take time. So we should look at this submits that the current impasse faced by as a long-term struggle, even an inter- the enforcement of the polarizing terms of generation struggle. This generation will the Arbitral Award in Philippines v. China win that ruling, the next generation will could be overcome by the gradual and convince the world, and the generation organic establishment of a rules-based after that will convince China but we regime in the South China Sea built upon should not expect instant gratification continuing open-ended inquiries. here if we win this.21

21 Tetch Torres-Tupas, ―Carpio: Even if PH wins

case vs China, struggle will continue‖, Phil. Daily Inquirer (July 3, 2015), available at

CONCILIATION UNDER ANNEX V, UNCLOS: A POTENTIAL DISPUTE SETTLEMENT MEASURE FOR COMPLEX DISPUTES RELATING TO LAW OF THE SEA

Vo Ngoc Diep

UNCLOS dispute settlement mechanism have not made a declaration as such or do . The UNCLOS compulsory dispute not choose the same procedure, the Annex settlement mechanism is widely praised VII Arbitral Tribunal will be the for its comprehensiveness. Part XV of compulsory procedure. UNCLOS adopts the ‗cafeteria‘ approach . The absence or objection of one party in settling disputes concerning the does not affect the Tribunal‘s jurisdiction interpretation and application of the over the case. (South China Sea Convention between its member states. Arbitration, Artic Sunrise cases). The UNCLOS judicial measures have Conciliation under the Convention on jurisdiction over any dispute concerning the Law of the Sea the interpretation or application of this Convention, however, their jurisdictions . Overview of conciliation as a peaceful are subject to automatically applicable dispute settlement means limitations set out in Article 297 and - As a quasi-judicial method, conciliation optional exceptions under Article 298. is praised for its flexibility in procedure, a . Article 287 UNCLOS enumerates a list hybrid form of disputes settlement of four judicial bodies (the ICJ, the ITLOS, withtheability to result in compromise the Annex VII Arbitral Tribunal and the solution: an ad-hoc conciliation Annex VIII Arbitral Tribunal) that commission, of which most members are member states, when signing, ratifying, appointed by parties to the dispute and accessing to the Convention or at any time one chairperson chosen by those members of the commission. thereafter, can declare to choose at least one of them to resolve their disputes - In principle, the commission works concerning the interpretation and together with parties to the dispute to application of the Convention. issue a list of non-binding . If two parties choose a same procedure, recommendations which are basis or such procedure will have jurisdiction. suggestions for parties in later stages of When parties to a dispute negotiation. - Conciliation commissions may employ a variety of techniques, including but not  Research Fellow, Bien Dong Institute for limited to inquiry, fact-finding, expert Maritime Studies, Vietnam

73 advisory opinion, shuffle diplomacy and - Relevant provisions: Article 284, Article mediation. 297 and Article 298. Two forms of . Comparison to other peaceful mean: conciliation: voluntary conciliation and compulsory conciliation. - Comparing with mediation, conciliation proposes a more well-framed platform for - Voluntary conciliation: A party to a settling a dispute. Conciliation dispute to a dispute may invite the other commissions usually operate under party or parties to submit the dispute to certain rules of procedure agreed by conciliation in accordance with the parties to the dispute while success of procedure under Annex V, section 1, or mediation depend on diplomatic skills and another conciliation procedure (Article ingenuity of mediators. 284). Conversely, ‗if the invitation is not accepted or the parties do not agree upon - Comparing with arbitration, conciliation, the procedure, the conciliation to a certain extent, share similarity with proceedings shall be deemed to be arbitration in terms of procedure: a third terminated‘. party suggests resolutions for a dispute. - Compulsory conciliation: Though the + The fact that conciliation‘s commission UNCLOS judicial measures have recommendations are not legally binding jurisdiction over any dispute concerning does not necessarily indicate conciliation the interpretation or application of this is a less powerful measure. International Convention, their jurisdictions are subject law has been long criticized for its lack of to automatically applicable limitations set law enforcement mechanism; thus, it is out in Article 297 and optional exceptions reasonable to question the actual binding under Article 298. Disputes concerning force of an arbitration award or a court those limitations and exceptions are decision, especially when practice has subject to a compulsory conciliation shown in several previous cases (the South procedure in accordance with section 2, China Sea Arbitration, the Nicaragua Annex V of UNCLOS provided that certain Military and Paramilitary Activities case). conditions are met. By reading Article 297 + Conciliation, meanwhile, could result in and Article 298, a list of disputes subject an agreed resolution between parties to to compulsory conciliation procedure is the dispute. drawn up as below:

Example: Jan Mayen case, Belize v. + Disputes concerning the interpretation Guatemala, Western Africa Community. or application of Articles 15, 74 and 83 . Conciliation as a peaceful dispute relating to sea boundary delimitations, or settlement mean under UNCLOS those involving historic bays or titles.The compulsory conciliation procedure is applied in such cases when the three

following conditions are met. (i) The negotiations fail to reach an agreement dispute must rise subsequent to the entry and the dispute remains unsettled, judicial into force of this Convention and (ii) measures provided in Section 2 of Part XV where no agreement within a reasonable are still applicable for the dispute if the period of time is reached in negotiations parties agree. These provisions certify the between the parties. Furthermore, (iii) mandatory character of the procedure and the dispute must not necessarily involve underscore the differences between the the concurrent consideration of any voluntary and compulsory conciliation. unsettled dispute concerning sovereignty UNCLOS provides a flexible or other rights over continental or insular framework for voluntary and land territory. compulsory conciliation as a means of + Disputes concerning a decision not to settling disputes relating to the grant consent to undertake marine interpretation or application of the scientific research in the EEZ or on the Convention. Conciliation could, at least continental shelf of a coastal state; in theory, be used twice in the relation provided that the conciliation to certain disputes: one as a voluntary commission shall not call in question the measure under Section 1, Part XV; one exercise by the coastal State of its as a compulsory measure under Section discretion to designate specific areas 3, Part XV of UNCLOS. In addition, where exploitation or exploratory while resorting to conciliation, parties operations are occurring or will occur reserve the right to invoke judicial within a reasonable period of time. measures set out in Section 2 given + Disputes where a coastal state has their mutual consent are reached. ‗manifestly failed‘ or ‗arbitrarily refused‘ Lessons learnt from the Timor Sea Gap to fulfill its responsibilities of a coastal Conciliation: Prospects of conciliation as a states with respect to the living resources method to settle international disputes in in the EE, including its discretionary concerning Law of the Sea powers for determining the allowable . Still, so far, only one dispute has been catch, its harvesting capacity, the settled by the UNCLOS compulsory allocation of surpluses to other States and conciliation and the voluntary conciliation the terms and conditions established in proceeding has never been resorted to its conservation and management laws settle disputes concerning UNCLOS and regulations. provisions: the Timor Sea Conciliation in - Mandatory conciliation procedure April 2018. requires parties to negotiate an agreement . The success of the Timor Sea on the basis of the report of the Conciliation would remind international conciliation commission. In case these

75 law practitioners and legal advisors of a 298 of UNCLOS. All matters that belong to prominent measure for complex disputes: the second group are only addressed by

- tested and tried the conciliation consensual measures depending on procedure under Annex V of UNCLOS; political wills of parties to the dispute, such as negotiations or conciliation. As the - proved to be a convenient and effective result, a ‗Salami-slicing dispute‘ is broken measure; down into judicial measures and - more face-saving solution than judicial consensual measures, though in many measures. cases they are too closely related to discern 1 . Moreover, the fact that Law of the Sea as separate matters. Thus, the disputes are usually complicated and phenomenon suggests that a dispute might be torn apart to various stages or prone to multiple procedures adds another layer of reasoning for the above argument. proceedings to serve the purpose of one party, which may impede comprehensive - Since disputes concerning law of the sea settlement of dispute. are normally complicated and contain inter-related multiple aspects, some Conciliation is a quasi-judicial measure aspects might be subject to the UNCLOS that could cover a wide range of issues; compulsory judicial measures while the thus, it should be considered a others are not subject to any other promising measure to resolve complex institutive judicial mean. (Chagos disputes comprehensively. Archipelago case. For instance, the United Conciliation and the South China Sea Kingdom and Mauritius have multiple issues disagreements over the Chagos

Archipelago encompass varied from 1 For example, a dispute on overfishing in the sovereignty to the legality of the United Exclusive Economic Zone (EEZ) of a coastal state Kingdom‘s marine park project in the might include matters of fishing, marine archipelago The Annex VII Tribunal + environmental protection, scientific research and the ICJ for an advisory opinion) navigation within the EEZ. The issues of navigation and environmental protection are subject to - ‗Salami – slicing disputes‘: Alan Boyle compulsory judicial measures under UNCLOS. uses this term to describe a situation Meanwhile, due to the practical effect of Article where a law of sea dispute has multiple 297, the judicial measures do not have jurisdiction over the issues of fishing and marine scientific aspects with certain aspects fall into the research; these disputes are subject to consensual compulsory dispute settlement measures. As the result, to invoke the compulsory mechanism of UNCLOS, while other procedures, legal advisors of states must have ‗a aspects of the dispute belong to the certain amount of ingenuity‘ in shaping mandatory exceptions under Article 297 submissions to fit within the scope of the compulsory procedure and avoid the Salami-slicing and the optional exceptions under Article effect.

. South China Sea issues = multi-faceted . This research is an attempt to explore disagreements on sovereignty, maritime one out of many possible solutions for the claims, fishery management, navigation, South China Sea issues. Conciliation, like use of force, fishing, marine all other dispute settlement mechanism, environmental protection, scientific has its own advantages and disadvantages. research, etc. Multi-faceted issue Nothing in this research should be requires comprehensive resolutions and interpreted as a deterioration of the South good faith of claimants. China Sea Arbitration ruling. Indeed, . Conciliation: a potential measure for the according to the res judicata principle, South China Sea issues once an issue between two parties is decided by an arbitral tribunal, it is - Pros: covers various subject matters, disposed of for goods. For that reason, the well-framed under a rule of procedure, SCS arbitration award must be respected recommend compromise solution, face- and complied with to uphold the rule of saving measure law and the legal order at sea. - Cons: non-legally binding, require political will.

MULTILATERAL MANAGEMENT OF THE SOUTH CHINA SEA DISPUTE

 YAMAGATA Hideo Introduction against China on July 12, 2016. It held that maritime features in the South China Sea The South China Sea1 is a flashing point among States claiming the territorial titles claimed by China have ―no capacity to over small islands, islets, reefs and rocks. generate an entitlement to an exclusive Claimants are Brunei, China, Malaysia, the economic zone (EEZ) or continental shelf‖ and that there are no overlapping Philippines, Taiwan, and Vietnam.2 A legal dispute between the Philippines and China entitlements between China and the culminated in the arbitral procedures Philippines for the purpose of maritime 3 before the Arbitral Tribunal in the Hague delimitation. Disputed shoals and reefs established under the 1982 UN were determined to be ―within the Convention on the Law of the Sea exclusive economic zone and continental 4 (UNCLOS), although China remained shelf of the Philippines.‖ Therefore, absent from the whole procedures, failing certain activities conducted by China to appoint agents and advocates, to submit beyond 12 nautical mile territorial sea its arguments officially and to send its including the construction of artificial delegates to the arbitration. islands without permission of the Philippines are unlawful under UNCLOS. The arbitral award was delivered in favor of the Philippines on its almost all claims The award brought the dispute into the post-adjudicative phase and the most salient issue has turned into how to

 Professor, Graduate School of International implement the award. However, China Development Nagoya University, Japan maintained that ―the award is filled with 1 The South China Sea is called ―the South Sea‖ by errors in procedures, legal basis, evidences China, ―the East Sea‖ by Vietnam, and ―the and facts, and thus has no impartiality, Western Philippine Sea‖ by the Philippines. Here credibility, and binding force at all.‖5 It is in this paper, the word ―the South China Sea‖ is employed for reference because it appears most clear that China has no intention to widely used in the international society and the comply with the award, declaring that it arbitral award itself employs this terminology. 2 Indonesia and Singapore are coastal States of the 3 The South China Sea Arbitration (the Philippines South China Sea, but do not have any competing and China), Arbitral Tribunal, AWARD 472 (12 July claims over the features. The Arbitral Tribunal 2016) [hereinafter cited as 2016 AWARD]. recognized this fact in 2015 without reference to 4 Id., at 474. the two States as non-claimants. The South China 5 China, ―China's Sovereignty and Maritime Rights Sea Arbitration (the Philippines and China), and Interests in the South China Sea Shall not Be Jurisdiction and Admissibility, Arbitral Tribunal, Affected by Arbitration Award,‖ available at AWARD 1, para.3 (29 Oct. 2015) [hereinafter cited http://www.fmprc.gov.cn/nanhai/eng/wjbxw_1/t1 as 2015 AWARD]. 382766.htm

78 has ―no binding force at all.‖ The jurisdiction over them. On the top of that, Philippine position is rather ambivalent as a matter of law, the award is binding on the matter. It is reported on December only on the parties to the litigation, 17 that ―the Philippine president said that namely the Philippines and China. The he would ‗set aside‘ a ruling by an other claimants are not bound by it, international arbitration tribunal.‖6 although it may be understood that the However, on December 19, the Philippine award has established interpretation of Foreign Minister said that the Philippines relevant provisions of UNCLOS and may ―will not ‗deviate from‘ an international be invoked as a strong justification for tribunal ruling.‖ The post-adjudicative some arguments in future negotiation or phase is a political rather than legal adjudication with China. Qualified by process dependent on the political will of some legal limitations on it, it is natural the parties to the dispute. The winning that the award should be a legal party is in position to request the other foundation and a starting point, from party for full implementation of the ruling. which a quest for pacific resolution of the At the same time, it is free to refrain from overall dispute must be pursued in order doing so on condition that it can draw to create the zone of friendship among the some economic, financial or other gains bordering States, because rule of law is from the other party through negotiations. reiterated even by China.7 The award can be utilized as stuff for To establish rule of law in the region, this barter to get some benefits. That may be paper aims (a) to analyze the significance what the Philippines is considering at this of the award, (b) to develop an idea of moment. multilateral cooperation in the South Legal issues concerning application and China Sea on the basis of the semi- interpretation of UNCLOS such as the enclosed sea regime, and (c) to discuss legal status of rocks are settled by the some challenges to multilateral award. However, the territorial issues are cooperation in that region in the following not resolved yet, because they are chapters. questions of general international law I. Isolation of Territorial Issues which do not fall within the ambit of from Maritime Issues UNCLOS and the arbitral tribunal has no

6 The Washington Post, ―Duterte Says He‘ll Set 7 China says that it ―is committed to upholding and Aside Sea Feud Ruling against China,‖ available at: promoting international rule of law‖ in its White https://www.washingtonpost.com/world/asia_pac Paper ―China Adheres to the Position of Settling ific/duterte-says-hell-set-aside-sea-feud-ruling- Through Negotiation the Relevant Disputes against-china/2016/12/16/4e4a606e-c40f-11e6- Between China and the Philippines,‖ available at 92e8-c07f4f671da4_story.html? utmterm=. http://www.fmprc.gov.cn/nanhai/eng/snhwtlcwj_ 28fea2ddbdf5 1/t1380615.htm

The Arbitral Tribunal was successful in from the compulsory dispute settlement separation of the maritime legal issues mechanism under Article 298 (a) (i) from the territorial issues. It is conferred deprived the Tribunal of its jurisdiction with jurisdiction over any dispute over the case. China availed the provision ―concerning the interpretation or to opt out the mechanism over a case on application of this Convention‖ under the delimitation of the EEZ and Article 279 of UNCLOS. The Tribunal with continental shelf by declaring the limited capacity to deal with issues exceptions. Before proceeding to the emanating from UNCLOS cannot handle merits of the case, the Tribunal had two territorial claims. China argued that the tasks: first to overcome the Chinese plea Tribunal lacked its jurisdiction over the sustained by ―the land dominates the sea‖ case submitted by the Philippines on the principle by way of detachment of the basis of ―the land dominates the sea‖ justiciable issues from the territorial principle, which means that ―sovereignty issues; secondly to establish that the case over land territory is the basis for the had nothing to do with the maritime determination of maritime rights.‖8 This is delimitation. a good justification to refuse the validity of The Tribunal found that all the maritime the nine-dash line which allowed China to features in the Spratly islands are ―rocks‖ assert the historic rights over the vast area which are not entitled to the EEZ and of the South China Sea. The principle ―will continental shelf under Article 121. not recognize any claim to maritime space Therefore ―there is … no jurisdictional that is not measured from land territory, obstacle to the Tribunal‘s consideration of including islands.‖9 It also functions as an the Philippines‘ Submission.‖10 Even obstacle to the jurisdiction of the Tribunal. though some rocks may be owned by Without and before a decision made on China as a legitimate title holder, they do the territorial claims over islands in the not produce any entitlement to the EEZ South China Sea, the Tribunal might not and continental shelf. They have only 12 have been able to rule on the maritime nautical mile territorial water measured entitlements to the EEZ and continental from their baseline. Whether China or the shelf. Philippines may possess territorial titles Another objection raised by China was over them, activities conducted by China that the Chinese exclusion of a dispute beyond the outer limit of territorial sea concerning the maritime delimitation may be legally assessed by application of UNCLOS. Moreover, they are ―located in 8 2015 AWARD 46, para.135. an area that is not overlapped by the 9 Beckman, the UN Convention on the Law of the entitlements generated by any maritime Sea and the Maritime Disputes in the South China Sea, 107 AJIL 142, 158 (2013) citing the Philippine argument. 10 2016 AWARD, 260, para.646.

80 feature claimed by China.‖11 The these efforts were made to ensure that Tribunal‘s finding that there are no they could assert the rights to the EEZ and overlapping claims for the EEZ and continental shelf measured from those continental shelf rejects the Chinese occupied features. The sea dominates the objection to the jurisdiction grounded on land in claimants‘ consideration of its exceptions. That is how the Tribunal exploitation and development of natural escaped from the difficult situations in resources, even though the land is an which it had procedural impediments. The uninhibited tiny one without any flesh jurisdiction was satisfied by the Tribunal water and food to sustain human life. That on the premise that all the features are is exactly in the reverse way of ―the land rocks disqualified for the entitlements to dominates the sea‖ principle. the EEZ and continental shelf. If it is right to say that claimant States are This ruling is significant in its effects to motivated to assert the territorial rights reduce the legal values of the land. The for the purpose of natural resources, the territorial disputes in the South China Sea award must have certain practical effects became volatile after the oil crisis in 1970s. to calm them down by saying that all the It is said that ―claims to the Spratlys features cannot generate the EEZ or sprang up after the prospect of oil continental shelf.15 The award is certainly discovery arose.‖12 Exploitation and a warning to all the claimant States that development of natural resources the occupation and reclamation work including fishery stocks motivated littoral conducted by them in order to consolidate States to occupy small islands, reefs, the legal titles over maritime features are shoals, sands and even tiny rocks in the of no use to attain their maritime South China Sea to exercise sovereign interests. The enthusiasm of the bordering rights over them. They carried out States for the maritime claim may be reclamation work on several features and chilled down, if they take the opinion of began to station a small number of garrisons.13 China is not exceptional.14 All 14 However, ―China has now reclaimed 17 times more land in 20 months than the other claimants 11 Id., at 260, para.647. combined over the past 40 years, accounting for 12 Christopher C. Joyner, The Spratly Islands approximately 95 percent of all reclaimed land the Disputes: What role for Normalizing Relations Spratly Islands.‖ Ronald O‘Rouke, Maritime between China and Taiwan, 32 NEW ENG. L. REV. Territorial and Exclusive Economic Zone (EEZ) 819, 825 (1998). Disputes Involving China: Issues for Congress, 13 See the table for information on the Spratly CONGRESSIONAL RESEARCH SERVICE REPORT, Islands occupied by claimant States up to 1998. R42784 (May 31, 2016). Christopher C. Joyner, The Spratly Islands 15 Strikingly Itu Abu, the biggest island in the South Dispute: Rethinking the Interplay o Law, China Sea, is denied entitlements to the EEZ and Diplomacy, and Geo-politics in the South China continental shelf in the Award. 2016 AWARD 254, Sea, 13 INT‘L J. MAR. & COASTAL L. 193, 204 (1998). para.625.

81 the Arbitration properly. In this vein, the performance of their duties under there are no doubts that the Arbitration [UNCLOS].‖ The regime may be applied to would contribute to creation of rule of law the South China Sea for settlement of the atmosphere in this region in the long dispute.19 The Tribunal, nevertheless, did run.16 not examine the applicability of the clause. II. The South China Sea as a “Semi- The Tribunal‘s silence on the enclosed or Enclosed” Sea semi-enclosed sea regime under UNCLOS A. Description of the South China Sea as may be explained in three folds. First, the a Semi-Enclosed Sea in the Award characterization of the Sea as semi- enclosed sea by the Tribunal might have The South China Sea is a ―semi-enclosed been just aimed to describe the sea‖ in a geographical sense. This fact was topography of the Sea in the introductory affirmed by the Arbitral Award on part of the Awards, and not intended to be jurisdiction and admissibility of the case fact finding from which it could draw a 17 in 2015 and reaffirmed by the Award on conclusion to apply the special rules for 18 the merits in 2016. UNCLOS has specific the regime in legal terms. The perfunctory provisions on the regime of enclosed or statement on the semi-enclosed sea nature semi-enclosed seas under Articles 122 and of the South China Sea might not permit 123. Article 122 gives the definition of the the readers to argue for the cooperation enclosed or semi-enclosed seas, and obligation on the basis of these articles. Article 123 sets out some ―obligations‖ to Secondly, the arbitration procedures, cooperate among States bordering them. It basically bilateral in its nature, did not provides that they ―should co-operate with involve all the littoral States of the Sea each other in exercise of their rights and besides the Philippines and China. No third States made a request for permission 16 Keyuan Zou prospected that ―if the Arbitral of intervention in the procedures in Tribunal were to grant all the contested reefs to the Philippines, such an award would in reality only defiance of the Chinese strong objection to exacerbate the tensions in the South China Sea.‖ it.20 The Tribunal was not able to grasp the Keyuan Zou, The South China Sea, in DONALD R. ROTHWELL, ALEX G OUDE ELFERINK, KAREN N. 19 It is suggested, for instance, by Keyuan Zou, SCOTT AND TIM STEPHENS ED., THE OXFORD supra note 16 at 638. HANDBOOK OF THE LAW OF THE SEA 626, 642 (2015). In fact, 20 China sent a letter to the individual members of the Tribunal did not grant any contested reefs to the Tribunal (6 February 2015), maintaining ―the the Philippines. For China, however, it denied any Chinese Government underlines that China sovereign rights in the EEZ and continental shelf in opposes the initiation of the arbitration and any the South China Sea save those area measured measures to push forward the arbitral proceeding, from its main land. The award might have made holds an omnibus objection to all procedural China furious about its ruling. applications or steps that would require some kind 17 2015 AWARD 1, para.3. of response from China, such as ‗intervention by 18 2016 AWARD 1, para.3. other States‘, ‗amicus curiae submissions‘ and ‗site

82 question on the legal status of the Sea as ―connected to another sea or the ocean by semi-enclosed sea without participation of a narrow outlet.‖ Finally, they must be the other three claimant States. Finally, consisting entirely or primarily of the Article 123 provides for fairly milder form territorial seas and exclusive economic of obligations to cooperate among zones of two or more coastal States.‖ The bordering States of a semi-enclosed sea first requirement is a precondition for the and it is controversial whether or not it regime with the effect of excluding the sea imposes certain obligations on them. possessed by a single State. It is connected First, it will be examined whether the to the second and the third condition with South China Sea meets criteria for the the term ―and.‖ Meanwhile, the second semi-enclosed sea regime under Article and the third requirements are linked to each other with the term ―or.‖ 122 for application of Article 123. Secondly, whether the obligations Considering that Articles 122 and 123 provided for in Article 123 are legal duties compose Part IX under the title of on the coastal States or not will be ―Enclosed or Semi-Enclosed Seas,‖ it is considered in this chapter. Finally, it will arguable that the second requirement is be discussed how effectively the regime for enclosed sea and the third is for semi- might be implemented in the South China enclosed sea, while the first is a condition Sea. set out for both categories of the seas: the B. Definition of a Semi-Enclosed Sea enclosed and semi-enclosed sea. The Virginia Commentary states that ―the first Article 122 provides a definition of part relates to an ‗enclosed sea,‘ which enclosed or semi-enclosed seas. It reads consists of a body of water that is almost that: completely surrounded by land, having ―‗enclosed or semi-enclosed sea‘ means a only a ‗narrow outlet‘ to other waters,‖ gulf, basin or sea surrounded by two or while ―the second characteristic relates to more States and connected to another sea ‗semi-enclosed seas‘.‖21 or the ocean by a narrow outlet or This interpretation is grounded on the consisting entirely or primarily of the Iranian proposal on the definition of the territorial seas and exclusive economic enclosed or semi-enclosed seas during the zones of two or more coastal States.‖ Third UN Conference on the Law of the First of all, enclosed or semi-enclosed seas Sea (UNCLOS III). It stated that: must be ―surrounded by two or more For the purpose of these articles: States.‖ Secondly, they must be

visit‘.‖ 2016 AWARD 55, n.67. See also 2016 AWARD 21 MYRON H. NORDQUIST ed., UNITED NATIONS 16, para.42; 2015 AWARD 23, para.64, and at 73, CONVENTION ON THE LAW OF THE SEA 1982: A para.185. COMMENTARY 348 (1995).

(a) The term ―enclosed sea‖ shall refer to a seas with single outlet and semi-enclosed small body of inland warters surrounded seas with multiple outlets may be tenable by two or more States which is connected from the consideration of the drafting to the open sea by a narrow outlet. history of UNCLOS III. (b) The term ―semi-enclosed sea‖ shall Nonetheless, there are no clear differences refer to a sea basin located along the on legal effects between enclosed and margins of the main ocean basins and semi-enclosed seas. Article 123 does not enclosed by the land territories of two or differentiate enclosed seas from semi- more States.22 enclosed seas regarding obligations On the one hand, the enclosed sea is imposed on States bordering them. It required to be connected to another sea by would not make any sense to suppose that a narrow outlet. On the other hand, the enclosed seas and semi-enclosed seas semi-enclosed sea must be enclosed by should be different from each other. It is two or more States. The sea which has possible to take a view that ―meeting only one narrow outlet may be considered either of the two definitions is sufficient to to be enclosed sea, while the sea which has qualify as an enclosed or semi-enclosed 24 multiple narrow outlets may be semi- sea.‖ In fact, during UNCLOS III, the enclosed sea. Iranian proposal was not supported by other States and the text as a part of the Some argue that ―even if a sea is connected Informal Single Negotiation Text (ISNT), to another body of water by several narrow Part II, ―indicated that, for the purposes of outlets, it can still be said that it is that part of the Convention, they were connected to another body of water by ‗a being treated together.‖25 No need to make 23 narrow outlet‘.‖ A textual method for a distinction between enclosed and semi- interpretation of a treaty would not result enclosed seas is found in the negotiation in such an interpretation. Clearly the of UNCLOS III. connecting outlet in the clause is singular, not plural, which does not permit any The South China Sea is surrounded by interpretation to read in it the argument seven States and satisfies the first that enclosed sea may have multiple condition for an enclosed or semi-enclosed outlets. A distinction between enclosed sea, ―surrounded by two or more States.‖ It has several exits to other oceans, such as the Taiwan Strait to the East China Sea, 22 Id., citing A/CONF.62/C.2/L.72, article 1, III Off. the Luzon Strait to the Pacific Ocean, and Rec. 237. the Strait of Malacca to the Indian Ocean. 23 Christopher Linebaugh, Joint Development in a Semi-Enclosed Sea: China‟s Duty to Cooperate in It does not meet the single outlet Developing the Natural Resources of the South China Sea, 52 COLUM. J. TRANSNAT‘L L. 542, 549 24 Id., at 552. (2014). 25 MYRON H. NORDQUIST, supra note 21 at 349.

84 definition. Nor may the straits be ―narrow‖ endeavor, directly or through an enough to qualify the South China Sea as appropriate regional organization: an enclosed or semi-enclosed sea. (a) to coordinate the management, However, the third requirement seems to conservation, exploration and exploitation be satisfied, as it is ―a sea consisting … of the living resources of the sea; primarily of the territorial seas and exclusive economic zones of two or more (b) to coordinate the implementation of coastal States.‖ In the center of the South their rights and duties with respect to the China Sea, there remain high seas beyond protection and preservation of the marine the 200 nautical mile EEZs from the environment; mainland of each claimant State. Certainly (c) to coordinate their scientific research it is not ―entirely‖ but ―primarily‖ policies and undertake where appropriate composed of the territorial sea and EEZs joint programs of scientific research in the of the littoral States. So long as the first area; and the third requirements are met, the (d) to invite, as appropriate, other South China Sea can claim itself to be an interested States or international enclosed or semi-enclosed sea. organizations to cooperate with them in Finally, it is noteworthy that China itself furtherance of the provisions of this admitted the South China Sea was a semi- article. enclosed sea. The Chinese statement It is true that the term ―should‖ sounds issued immediately after the award rather exhortatory than obligatory in legal 26 described it as a semi-enclosed sea. arts in comparison with the term ―shall.‖ China may not have intended to introduce Although the second sentence adopts the the regime of the enclosed or semi- word ―shall,‖ it has weakened its legal enclosed sea, but this statement is a firm force by adding the word ―endeavor.‖ evidence to show the Chinese belief that Article 123 may not have binding effects the South China Sea is a semi-enclosed on the bordering States of the South China sea. Sea. C. Legal Effects of a Semi-Enclosed Sea However, Linebaugh argues that ―it is Article 123 reads that: clear that the broad legal duty 27 States bordering an enclosed or semi- interpretation is the most plausible.‖ enclosed sea should cooperate with each After he classifies three interpretations, other in the exercise of their rights and in the no legal duty interpretation, the broad the performance of their duties under this legal duty interpretation and the limited Convention. To this end they shall duty interpretation, he upholds the second

26 China, supra note 7, para. 1. 27 Linebaugh, supra note 23 at 556.

85 one. The first reason is that obligations rights and duties of coastal or other States listed from (a) to (d) are enshrined in under other provisions of present other provisions of UNCLOS. Obligations Convention, and shall be applied in a in (a) are also embodied in Article 61, manner consistent with those provisions‖ para.2, those in (b) are in Article 197, was dropped off in the Revised Single those in (c) are in Article 242 and those in Negotiating Texts (RSNT). Linebaugh (d) are in Article 61, para.2 and 197. The contends that ―the removal of Article 135 Virginia Commentary takes the same view implies that Article 123 was intended to that ―those States (bordering enclosed or alter the duties of coastal States.‖31 semi-enclosed seas) have the same rights, His argument needs to be subject to jurisdiction and duties as other coastal careful and systematic analysis on States.‖28 There are no additional duties UNCLOS as a whole and on the drafting on the coastal States of enclosed or semi- history of UNCLSO III. Even though enclosed seas. Therefore, Linebaugh Article 123 is an obligatory provision, it is maintains that those States are obliged to ―less‖ obligatory than other provisions implement the duties from (a) to (d) like obliging the contracting parties. other States. Cooperation and coordination are The second reason is based on the drafting dependent on the consent of coastal history of the provision. First, when the States. Establishment of a regional Chairman of the Second Committee organization for that purpose is all the explained the reason that he replaced the more dependent on their strong will. It is term ―shall‖ with ―should‖ and added the natural that Article 123 was drafted as term ―endeavor,‖ he said that ―I have … exhortatory in the sense that it suggests [made] less mandatory the co-ordination such regional cooperation can be done of activities in such seas [as enclosed or necessarily through a regional semi-enclosed sea].‖29 Admitting that ―the organization. phrase ‗less mandatory‘ adds some Identification of a less obligatory duty is a confusion,‖ he argues that ―this odd challenge regarding Article 123. A key to phrase does seem to show that the Article this may be found out in the phrase ―shall 30 was intended to create some legal duty.‖ endeavor.‖ It is certainly a duty of It means that indeed it is less mandatory, conduct, although it may not be a duty of but it is still mandatory. Secondly, a result. All the coastal States of enclosed or proposed Article 135 saying that ―the semi-enclosed State has a duty to make provisions of this part shall not affect the efforts to establish cooperation and

coordination in the region. Of course, such 28 MYRON H. NORDQUIST, supra note 21 at 365. efforts must be made in good faith. 29 Id., at 362. 30 Linebaugh, supra note 23, at 559. 31 Id.

Speaking of this duty in negative way, each argue for joint development in the Sea.32 State bordering enclosed or semi-enclosed However, China prefers bilateral direct sea has an obligation not to behave in bad talks with another State one by one to the faith. What can be said at the best is that multilateral approach. For China, it may under Article 123 there are obligations to be possible to exert its influential powers refrain from preventing other States from on the other State sitting at the negotiating exercising their rights and obligations. table, since China is the most powerful 33 Fishing in the EEZ of another State country in the region. China can hold without its permission is contrary to certain bargaining powers for beneficial paragraph (a). Even fishing activities on settlement. Moreover, it is suggested that the high seas in the region without due China is trying to buy time to pursue ―a strategy of creeping annexation or consideration on conservation of fish stocks or overfishing in its own EEZ may creeping invasion, or as a ‗talk and take‘ be in violation of paragraph (a). Water strategy, meaning a strategy in which pollution caused by reclamation or China engages in (or draws out) construction of artificial islands is a negotiations while taking actions to gain 34 breach of paragraph (b). Exacerbation of a control of contested areas.‖ dispute with other States is not in One of the obstacles to the multilateral conformity with the spirit of Article 123, talks is the fact that Taiwan is also a which is to reiterate and ensure the rights claimant in the South China Sea. Taiwan is and obligations provided for in other exercising its effective control over Itu Aba provisions. A legal framework or a (or Taiping Island), the largest island in regional arrangement should be the Spratly Islands. Under the One China established for better cooperation and policy, China will never accept Taiwan as a coordination among the States facing the party to the territorial and maritime South China Sea. dispute. The Arbitral Tribunal studied Itu

III. Multilateral Management over Aba to hold that it is a rock not qualified as the South China Sea a full-fledged island entitled to the EEZ

To establish regional framework within which cooperation and coordination can 32 For instance, Zou Keyuan maintains that ―joint be facilitated in the South China Sea as a development is a most feasible mechanism by which to shelve the dispute so as to pave the way semi-enclosed sea, a multilateral for cooperation pending the settlement of the negotiation among seven littoral States territorial and/or maritime disputes.‖ Zou Keyuan, would be the best choice in theory, Joint Development in the South China Sea: A New because every related issue to the South Approach, 21 INT‘L J. MAR. & COAST. L. 83, 90 China Sea would be resolved by States (2006). 33 See Ronald O‘Rourke, supra note 14, at 25. concerned at once. Actually many authors 34 Id., at 24.

87 and continental shelf. It only says that it is shoals, cays, and other features.‖37 This is ―currently under the control of the Taiwan reaffirmed by the Joint Statement of the Authority of China.‖35 Should Taiwan be Foreign Ministers of ASEAN Member involved in multilateral negotiations on States and China on the Full and Effective the territorial issues, the other parties in Implementation of the Declaration on the that process could be regarded as having Conduct of Parties in the South China Sea recognized Taiwan as an independent issued on July 25, 2016 after the award State de facto contrary to the One China was made public. Making a binding policy. That scenario is not tolerable for document to the effect will be the first step China at all. toward shelving the claims by coastal It is advisable to design a regional States in the South China Sea and is a good idea to avoid aggravation of the mechanism without the participation of Taiwan, but taking care of its interests. For dispute. Furthermore, it is worth that purpose, the Antarctic Treaty regime considering addition of the prohibition of might be a good model for the South ―the erection of new structures in the disputed areas.‖ The phrase was proposed China Sea.36 First, claimants can retain their land claim and freedom to deny such during the negotiation on DOC in 2002, claims put forward by other claimants but was dropped from the text under the 38 under Article 4. That mechanism is able to strong opposition of China. The status shelve every claim over land territory quo must be preserved in the proposed during the period when the regional treaty mechanism until the time comes for founding the regime is valid. But a new constructive scheme to be established claim based on the activities initiated after among the coastal States including the regional arrangement comes into force Taiwan. is not allowed to become a basis for a new Secondly, the Antarctic Treaty has claim. Then the rights and claims of established nuclear free zone for the first Taiwan would be intact as they are, though time in the globe. Under Article 5, any it is a third party to the arrangement. The nuclear explosions in Antarctica are Declaration on the Conduct of Parties in prohibited. Article 1 provides that the South China Sea (DOC) in 2002 stipulates that ―the Parties undertake to 37 The Declaration on the Conduct of Parties in the [refrain] from action of inhabiting on the South China Sea, available at: presently uninhabited islands, reefs, http://asean.org/?static_post=declaration-on-the- conduct-of-parties-in-the-south-china-sea-2 38 James Kraska & Paul Pedrozo, INTERNATIONAL MARITIME SECURITY LAW 330 (2013) citing Hardev 35 2016 AWARD 179, para.401. Kaur, Saiful Azhar Abdullah & Roziana Hamsawi, 36 This was suggested in 1998 by Joyner, supra Consensus reached on South China Sea, NEW note 13, at 222-24. STRAITS TIMES (Malaysia), Nov.3, 2002, at 20.

―Antarctica shall be used for peaceful Sea. However, it contains non-claimant purposes only.‖ In the South China Sea, States like Cambodia, Laos, Myanmar and remaining issues are over territorial titles Thailand. Decision making can be made which were left untouched by the on the basis of consensus among 10 Tribunal. Reefs, islets, sands, cays and member States of ASEAN. On July 25, rocks occupied by States are not useful for 2015, Cambodia blocked a joint statement economic purpose, since they cannot referring to the Arbitral Award of July 12, sustain human habitation and economic 2016. It is believed that ―China last week life. The reclaimed reefs may serve for promised more than half a billion dollars military purposes. It is reported on in aid‖ for Cambodia.40 Under the December 15, 2016, that ―China appears to framework of ASEAN, even a non- have installed weapons, including anti- claimant State can exercise a veto on the aircraft and anti-missile systems, on all South China Sea dispute. Therefore it is seven of the artificial islands it has built in necessary to found a meeting only by the the South China Sea.‖39 The 2016 Joint claimant States in the Sea to consult Statement declared that ―the Parties various issues and make declarations, concerned undertake to resolve their protocols and other documents. Such a territorial and jurisdictional disputes by mechanism would be helpful for peaceful means, without resorting to the confidence building among member threat or use of force.‖ This is the States. restatement of the 2002 DOC. It should be ASEAN is continuing its efforts for dispute enhanced to the establishment of the zone management in the South China Sea. of peace and a ban on the use of nuclear Some elements in the Antarctic Treaty weapons by incorporating the Southeast regime are being introduced in a non- Asia Nuclear-Weapon-Free Zone binding form by ASEAN. However, it may (SEANWFZ) Treaty (Treaty of Bangkok), not be the best organization for the South although the treaty has failed to get China Sea dispute for aforementioned nuclear weapon States joining the protocol reasons. Final resolution of the dispute attached to it. cannot be expected through ASEAN. It is Thirdly, the Antarctic Treaty has the worth studying how to shelve the claims Antarctic Treaty Consultative Meeting among the claimants. From the Antarctic (ATCM). ASEAN might be a good forum to Treaty, the claimant States may be able to discuss issues concerning the South China

40 The Cambodia Daily, ―Cambodia Blocks Asean 39 Reuters, ―China Installs Weapons Systems on Statement on South China Sea‖ available at: Artificial Islands: U.S. Think Tank,‖ available at: https://www.cambodiadaily.com/news/cambodia- http://www.reuters.com/article/us-southchinasea- blocks-asean-statement-on-south-china-sea- china-arms-idUSKBN1431OK 115834/

89 draw some lessons useful for their dispute duty not to do harm the semi-enclosed sea management. regime.

Conclusion Finally, it is suggested that the Antarctic This short article, first, examined how Treaty regime may be a good model to significant the Arbitral Award is. It is regulate conducts of States in the Sea. certain that the award played a valuable Shelving claims, territorial titles and other role to isolate the territorial issues from rights over the land must be the first step the maritime issues and to degrade the for the dispute management. Moreover, importance of the former issues. the establishment of a zone of peace free Uninhabited islands, rocks, reefs and from nuclear weapons should be made by other features have lost the entitlements to incorporation of SEANWFZ. As a forum, the EEZ and continental shelf except for the Antarctic Treaty Consultative Meeting the territorial sea. They are denied certain may be an advisable mechanism for the economic values under UNCLOS. In this purpose to contain the disputes in the respect, the Arbitral Tribunal was South China Sea. successful for containment of the dispute The Award has ruled on almost every in a legal perspective. point of the Law of the Sea concerning the Next the application of Article 124 definition of rocks, the legal effects of regarding enclosed or semi-enclosed seas them, and way of navigation, reclamation was studied to draw a conclusion that the work causing water pollution and so on. It definitely contributed to the future South China Sea might be considered to be a semi-enclosed sea. All the coastal States establishment of a rule based society in have specific obligations to coordinate the region. However, such a society cannot development of living natural resources, be formed only by a single legal document prevention of pollution, scientific research or the award. The international society and others. The obligations are provided must garner the voices of people searching for in a milder fashion, but they are for rule of law on the basis of the award. obligatory. Coastal States have a negative

CONCLUSION

Le Thi Kim Thanh

“States Parties shall fulfill in good faith considers it beyond dispute that both the obligations assumed under this Parties are obliged to comply with the Convention and shall exercise the rights, Convention, including its provisions jurisdiction and freedoms recognized in regarding the resolution of disputes, and this Convention in a manner which would to respect the rights and freedoms of not constitute an abuse of right.” other States under the Convention” (PCA‟s South China Sea Award July 2016). United Nations Convention on the Law of the Sea – Article 300 Several scholars believed that the forthcoming Code of Conduct in the South Both the Tokyo and Moscow conferences China Sea, between China and ASEAN, were of high quality in terms of would provide a legal framework to information imparted and opinions resolve the conflicts in the Sea if it is based exchanged. They featured updates on the on the court‘s ruling and UNCLOS. current situation in the South China Sea and forecast forthcoming challenges the At the conclusion of the second region will face in the future. Conference conference, IADL President Jeanne Mirer participants also acknowledged violations called on members of IADL to closely of the court‘s ruling two years after its monitor the situation in the South China issuance. International law is still not Sea so the good offices of IADL can act respected and adhered to in the South accordingly and discuss further necessary China Sea. steps and actions. Nevertheless, scholars and lawyers Due to space limitations in the Review, the expressed the hope for peace in the region. editorial board could not present all In the light of the landmark court‘s 2016 reports and presentations from both ruling, there is space for co-operation. conferences. The selected articles we present here illustrate the abiding desire The relevant parties can exercise self- that one day, the South China Sea will be a restraint, and step by step, implement region of peace and unity. It is also the international laws to resolve the disputes desire of IADL to promote peace in the and halt activities that threaten the South China Sea in particular, and in the region‘s security. world as a whole. As the court stated: “The Tribunal

 Vice President of Vietnam Lawyers Association 91