Breaking:
UNCLOS Tribunal Rules Against China, Unanimously Finds It Has Jurisdiction Over
Philippines South China Sea Claims
http://opiniojuris.org/2015/10/29/breaking-unclos-tribunal-rules-against-china-unanimously-finds-it-has-jurisdiction-over-philippines-south-china-sea-claims/
by
Julian Ku October 29th, 2015
It’s
been a rough week for China’s South China Seas policy. In addition to facing a
US Freedom of Navigation operation near one of its artificial islands, the
arbitration tribunal formed under the United Nations Convention on the Law of
the Sea has decided that
it has jurisdiction to proceed to the merits on the Philippines’ legal
challenge to certain Chinese activities in the South China Sea.
I
will blog more about this later, but for now it is worth noting that the
tribunal unanimously ruled that it can proceed to the merits on seven out of 15
of the Philippines’ claims, and that it reserves the question of jurisdiction
on seven other claims as being so interwoven with the merits that it cannot be
resolved without first considering the merits.
I
will note that the tribunal reserved the question of jurisdiction over the
Philippines’ biggest and most flashy claim: the argument that China’s Nine Dash
Line “historic rights” claim is inconsistent with UNCLOS. It held that:
The Philippines’ Submission No. 1 does, however, require the Tribunal to consider the effect of any historic rights claimed by China to maritime entitlements in the South China Sea and the interaction of such rights with the provisions of the Convention. This is a dispute concerning the interpretation and application of the Convention. The Tribunal’s jurisdiction to consider this question, however, would be dependent on the nature of any such historic rights and whether they are covered by the exclusion from jurisdiction over “historic bays or titles” in Article 298. The nature and validity of any historic rights claimed by China is a merits determination. The possible jurisdictional objections with respect to the dispute underlying Submission No. 1 therefore do not possess an exclusively preliminary character. Accordingly, the Tribunal reserves a decision on its jurisdiction with respect to the Philippines’ Submission No. 1 for consideration in conjunction with the merits of the Philippines’ claims.
On
the other hand, the Tribunal did find that the question of whether the
Scarborough Shoal is a “rock” or an “island” is clearly within the jurisdiction
of the Tribunal, irrespective of the merits. It did so because it held that
there are no overlapping sovereignty or sea boundary claims that might impact
the determination.
Overall,
it should never be surprising when an arbitral tribunal finds that it has
jurisdiction to hear a case. The Tribunal did throw China a bone by noting that
it is still possible that seven of the Philippines’ claims (including the Nine
Dash Line challenge) could be dismissed for lack of jurisdiction at the merits
stage.
But
by reserving the question of jurisdiction, and guaranteeing it will rule on the
merits for several other claims, the Tribunal shoves the ball back onto China’s
court. Will China continue to claim it is not bound by the Tribunal for
lack of jurisdiction, when the Tribunal has now found it has jurisdiction?
China would more clearly be in violation of UNCLOS now than it was
before, because UNCLOS Article 288(4) makes it clear that “[i]n the event of a
dispute as to whether a court or tribunal has jurisdiction, the matter shall be
settled by decision of that court or tribunal.” My guess is China will
pretend that Article 288 doesn’t exist and continue to refuse to participate.
The interesting question is whether China will pay any serious price (in
reputational terms) if it does so.
