The Philippine Law of the Sea Action against China: Relearning the Limits of International Adjudication

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1 VC The Author Published by Oxford University Press. All rights reserved. doi: /chinesejil/jmw026; Advance Access publication 22 August The Philippine Law of the Sea Action against China: Relearning the Limits of International Adjudication Abraham D. Sofaer* 1. China has been blamed and rightly so for advancing overbroad claims in the South China Sea (SCS), and for unilaterally attempting to enforce those claims through threats and aggressive actions. The United States has properly responded to China s assertions by exercising its maritime rights through freedom of navigation operations, by assisting States whose claims are threatened by China s conduct, and by working to create and strengthen alliances to deter China from continuing its policy of using strength to implement its claims to sovereignty and historical rights through unilateral actions. Such measures are essential to convince China to return to its long-held and sound policy of avoiding sovereignty disputes and supporting cooperative development. 2. It is equally imperative, however, for the US to acknowledge the ineffective foreign policy that continues to exacerbate the ongoing, dangerous confrontation with China over its SCS claims. The 2002 Declaration on the Conduct of Parties in the South China Sea among conflicting SCS claimants provides for the negotiation, rather than unilateral implementation, of conflicting claims 1 ; and the Philippine * George P. Shultz Senior Fellow, The Hoover Institution, Stanford University; Legal Adviser to the US Department of State, The views expressed in this paper were delivered at the Seminar on the South China Sea Arbitration and the International Rule of Law, sponsored by the Leiden University Grotius Centre for International Legal Studies and the Wuhan University Institute of Boundary and Ocean Studies, in The Hague on June 26, International adjudication used here refers to judicial or arbitral processes, each based on law. All rights reserved. All websites cited were current as of that date unless otherwise noted. 1 The Parties concerned undertake to resolve their territorial and jurisdictional disputes by peaceful means, without resorting to the threat or use of force, through friendly consultations and negotiations by sovereign states directly concerned, in accordance with universally recognized principles of international law, including the 1982 UN Convention on the Law of the Sea. Paragraph Chinese Journal of International Law (2016),

2 394 Chinese JIL (2016) government in particular agreed to resolve its disputes with China through negotiations. The Philippine government gave up on diplomacy, however, and sued China under the United Nations Convention on the Law of the Sea (UNCLOS) in January 2013, contending that bilateral negotiations had led nowhere; that multilateral efforts were bogged down; and that China had repeatedly used its superior power to maintain its claims. The LOS tribunal appointed to hear the case has decided it has jurisdiction over several of the Philippine claims and it has reserved judgment on all the other claims until the merits have been determined. An LOS tribunal decision adverse to China is anticipated on July 12, Supporters of the litigation including the United States appear to have believed that the action against China: was justified under the Convention s terms; was necessary because all efforts to resolve the disputes between the two States regarding the SCS had been exhausted; could embarrass China and thereby lead it to moderate its conduct and narrow its claims; could prompt additional LOS suits by other States affected by China s maritime claims; and would advance the influence and effectiveness of international law and the Law of the Sea in particular. 4. These hoped-for results have not been realized. To the contrary, the litigation has caused far more harm than good. The US does need firmly to oppose China s unilateral actions in the SCS. But its strategy must be both realistic and honest, whereas its reliance on this litigation has been ill-considered and insincere given the firm US policy against being artificially forced into international adjudication and its failure to have ratified the Convention. Jurisdiction 5. First, it is simplistic and wrong to assume that China agreed to submit to UNCLOS arbitration on the Philippine claims merely because it agreed to a system in which the tribunal is empowered to determine its own jurisdiction. 2 The Convention does provide in Article 287(3) that all parties that fail to choose a binding procedure for dispute settlement concerning interpretation or application of UNCLOS are deemed to accept arbitration of such disputes in accordance with Annex VII. China did not choose a binding procedure, as would have been 2 Stefan Talmon, The South China Sea Arbitration: A Chinese Perspective, edited by Stefan Talmon and Bing Bing Jia (Oxford: Hart Publishing, 2014), pp Available at SSRN: A contrary position is taken by Julian Ku in: A Guide to Countering Chinese Government Spin on the Fairness of the South China Sea Arbitration Tribunal, The Lawfare Blog, 20 June ness-south-china-sea-arbitration-tribunal.

3 Sofaer, The Relearning the Limits of International Adjudication 395 advisable. 3 Nonetheless, China did not thereby lose its right to insist on compliance by any tribunal with the Convention s limitations and the reservations China made in agreeing to submit to LOS adjudication. 6. China s refusal to participate in the litigation is in fact based on a well-founded belief that the Convention is not intended to permit decisions related to sovereignty, or that are inconsistent with the reservations of States Parties. 7. Whether an obligation exists to submit disputes to arbitration under UNCLOS depends on Article 298(1)(a)(i) which authorizes any party to declare in writing that it does not accept any one or more of the procedures with respect to specified categories of disputes, including those concerning the interpretation or application of articles related to sea boundary delimitations, or those involving historic bays or titles.... Relying on this provision, China submitted a declaration on August 25, 2006 that it does not accept any of the procedures provid[ing] for mandatory arbitration with respect to all the categories of disputes listed in Article More generally, the Convention cannot reasonably be said to deal with (let alone confer jurisdiction on a tribunal to decide) issues concerning sovereignty or other rights over territory. This is implicit in the requirement that a State Party that excludes boundary disputes from compulsory jurisdiction must submit such disputes to compulsory conciliation, but only if they do not necessarily require the concurrent consideration of any unsettled dispute concerning sovereignty or other rights over continental or insular land territory. 4 This provision makes clear that it does not even require disputes concerning sovereignty over land to be submitted to conciliation. The Philippine Statement of Claim attempts to avoid these limitations, but its requests for relief include asking the tribunal to order China to stop activities on several allegedly submerged features in the SCS, 5 and seem necessarily premised on either Philippine maritime entitlements or its claimed sovereignty over land territory. 9. An LOS tribunal s power to decide its own jurisdiction must be exercised with genuine concern for the intentions of China in invoking the Convention s explicit 3 Article 287(3) of UNCLOS provides that a State shall be free to choose, by means of a written declaration, one or more of the following means for the settlement of disputes concerning the interpretation or application of this Convention: the International Tribunal for the Law of the Sea established in accordance with Annex VI; the International Court of Justice; an arbitral tribunal constituted in accordance with Annex VII; [or] a special arbitral tribunal constituted in accordance with Annex VIII for one or more of the categories of disputes specified therein. 4 Law of the Sea Convention, Article 298(a)(i). 5 From the Filipino Statement of Claim, Mischief Reef, McKennan Reef, Gaven Reef, and Subi Reef are submerged features that are not above sea level at high tide, are not islands under the Convention, are not located on China s Continental Shelf, and China has unlawfully occupied and engaged in unlawful construction activities on these features.

4 396 Chinese JIL (2016) right to exclude from binding settlement procedures disputes concerning sea boundary limitations and historic titles. That an international system of adjudication is compulsory as to those issues a State Party agrees to adjudicate does not give legitimacy to a tribunal to alter the fundamental limitations on this authority on which the Party relied in accepting the treaty commitments involved. Adjudication should not proceed against any reasonable, and hence credible, objection of a State Party based on an intended restriction on its willingness to submit an issue to third-party resolution. 10. This understanding in a tribunal s exercise of the competence to decide its own competence is rooted firmly in established rules governing the construction of treaties, as well as in the equally well-established risks associated with a tribunal s lack of restraint in disregarding credible objections to its jurisdiction. The Vienna Convention on Treaties requires agreed exceptions to general rules to be given proper weight, as reflecting the specified intent of the contract made. Article 31 of the Vienna Convention requires giving the words of the reservation their ordinary meaning, in order to secure their purpose. Instead, the LOS tribunal found it had jurisdiction over the Philippine claims despite China s broad and highly relevant exceptions, on the premise that the exception could be read to permit some Philippine claims, if construed to exclude Philippine requests that clearly violated the intended limitations. Competence to decide competence is not a license to find ways to exercise jurisdiction by limiting both the exceptions and the claims advanced. It is especially inappropriate for a tribunal to force parties into adjudication under UNCLOS, since the Convention creates new rules, establishes new concepts, and stresses the importance of negotiated solutions The Chinese see this technique as artificial a word game designed to preserve Philippine claims despite their inadmissibility, while subordinating China s intention to have issues related to sovereignty and historical rights negotiated rather than adjudicated. 7 The lack of credibility reflected by this form of reasoning, in disregard of established rules of treaty interpretation and of common sense, makes it even more 6 Article 280 provides for the Settlement of disputes by any peaceful means chosen by the parties, declaring that Nothing in this Part impairs the right of any States Parties to agree at any time to settle a dispute between them concerning the interpretation or application of this Convention by any peaceful means of their own choice. See also Sreenivasa Rao Pemmaraju, The South China Sea Arbitration (The Philippines v. China): Assessment of the Award on Jurisdiction and Admissibility, 15 Chinese JIL (2016), 21/chinesejil.jmw019.full. 7 Nong Hong, Reconsidering the Role of Arbitration in South China Sea, China- US Focus, 18 February sidering-the-role-of-arbitration-in-south-china-sea/.

5 Sofaer, The Relearning the Limits of International Adjudication 397 likely than usual that the Tribunal s efforts will prove futile and harmful to the Treaty s purposes and to the development of effective rules of international law. Necessity 12. Dealing with China has been frustrating for the Philippines, as it has been for China s other maritime contestants. China has delayed for too long substantive discussions of maritime borders with its SCS neighbors. It is wrong nonetheless to attempt to substitute the negotiations which China in principle agrees should take place with an adjudication that China rejects on reasonable grounds. It is hard to imagine a situation in which a border dispute, land or water, has taken so long to solve through diplomacy that efforts are justified to force its resolution through adjudication against the will and stated intentions of one of the parties. 13. The notion that border disputes have deadlines, or should be seen to have deadlines, has no basis in international practice or in the realities of international relations. As Legal Adviser to the US State Department, I learned in 1985, for example, that the US had ten border disputes with Canada which had existed since the War of Some of these are maritime border disputes. During my tenure we agreed with Canada to submit one of these disputes to adjudication before a chamber of the International Court of Justice, because it was causing serious disruptions in waterways and conflict among fishermen. Both sides accepted and implemented the judgment in that case, so I asked my Canadian counterpart why we shouldn t go ahead and settle some or all of the remaining disputes, which by then had been pending for over 175 years. A wise and experienced diplomat, he explained that each dispute raised complicated political and economic concerns; that both governments were well aware of which disputes they were likely to win and lose; that they might well have to settle the disputes in a manner or at a pace that avoids having either side appear to suffer an embarrassing defeat; and that meanwhile each side was maintaining its legal position on each dispute and operating on a basis the other found acceptable. 14. It is shortsighted to assume that no hope exists that the Philippines and China (or for that matter any of the other States having disputes in the SCS or ECS) will resolve their disputes successfully, or agree upon workable arrangements, without litigation. China has gradually, but effectively, settled all but one of its land border disputes; and it has begun to settle some of its maritime boundary disputes, in the meantime doing as well if not better than other SCS claimants at maintaining status quo arrangements. 8 Nor is multilateral diplomacy on maritime disputes hopeless. The ASEAN Code of Conduct has taken very long to negotiate, but progress has been made and it remains worth pursuing. More can also be done to establish models 8 In 2000, China and Vietnam reached a maritime delimitation agreement which settled the boundary in the Gulf of Tonkin.

6 398 Chinese JIL (2016) by which competing sovereignty claims can be set aside to permit cooperative development, as China has long avowed (though too rarely agreed). More pressure is needed to bring China to the table, but litigating against its will is not justified by mere delay. Impact on China s Conduct 15. The hope that the Philippine action would moderate China s claims or conduct has proved a gross miscalculation. The suit has certainly brought the world s attention to China s overbroad maritime claims. And China s refusal to participate in the arbitration and its unwarranted conduct is widely viewed as evidence of its determination to disregard international standards, which in turn has embarrassed and offended China. The challenge posed by the suit has, however, led China to ratchet up both its rhetoric and its actions on SCS issues, rather than to seek to mollify international opinion. 16. Governments and scholars have long seen the most expansive of China s claims, particularly to sovereignty over all the land and waters within the Nine-Dash Line, as indefensible under UNCLOS. China s leading lawyers, both government and academic, had avoided openly advocating, or had advanced subtly qualified versions, of this and other expansive arguments. They often noted, for example, that China accepts that it has yet to negotiate its maritime borders, and that a Line of Dashes signals a claim, not an established regime. The Philippine filing has, however, led the Chinese government to escalate regime-authorized rhetoric. The historical rights of China are now more often described as non-negotiable, and dialogue between Chinese and officials and scholars from other States over maritime rights has become less nuanced; even the most serious and reasonable Chinese interlocutors have been forced by the presence of the litigation to refrain from qualifying China s official position. This escalation in rhetoric has made it more difficult to discern China s true beliefs which has made reasonable discussion more difficult, since any clarifying language could be viewed as an admission that China might respect the international court s ruling, thereby emboldening other claimants. 17. And of course China s reaction has gone far beyond rhetoric. It has taken control of islands and features in dispute, built naval bases, air strips, and other infrastructure, declared restricted zones for sea and air traffic, and recently announced its intention to establish tourist facilities open to Chinese nationals. Few such actions took place before the filing of the Filipino arbitration. China s reactions serve neither international law nor its own interests. But it would be myopic to fail to appreciate that the litigation, and especially US support for the litigation process, forced China into a situation in which it feels impelled to match its escalated rhetoric with deeds. Rather than leading China to soften its stance, the litigation led China to engage in

7 Sofaer, The Relearning the Limits of International Adjudication 399 conduct it felt was required to give credibility to its expressed determination to treat as illegitimate any legal ruling against its interests. 18. Particularly ironic in this regard is the fact that the most successful outcome conceivable for the Philippines is unlikely explicitly to require China to give up its claims based on sovereignty or historic use. Given the artificiality of the Tribunal s posture and its need to prove the propriety in its taking jurisdiction, any award it issues is likely to avoid rulings that expressly accept or reject sovereign or historical rights. The award will be more in the nature of an advisory opinion on the meaning of various LOS terms, including possibly their application to the islands or features at issue, rather than a express mandate that China refrain from making or acting on the sovereignty-related claims implicit in its Nine-Dash Line. To the extent any directive is issued, China will disregard it and may unfortunately continue to overreact; but it is especially curious and ill-considered that a litigation was pursued (and supported by the US and others) that was likely to lead, because of the very terms that made it admissible, at most to advisory commentary. Impact on the Actions of Other SCS Claimants 19. The Philippine suit has had an impact on the actions of other SCS claimants, but not the impact its proponents sought. China s concern that other States might follow the Philippine example led it to escalate its response in order to deter similar litigation. In addition to its measures aimed at the Philippines, it instituted law enforcement and Coast Guard activities, and engaged in resource exploration and construction projects, in areas contested by other States. The strategy apparently has worked; and while some states have expressed interest in the Philippine arbitration, no other State has thus far followed the Philippine example. No other State wants to trigger a round of Chinese responses as ferocious (and ill-advised) as those pursued against the Philippines. 20. China s actions in the SCS have led the Philippines and other affected States to coordinate among themselves and to seek US material support and naval involvement to challenge China s agenda. That these States are cooperating at all is significant; some have been long-time enemies. US and other naval and military support is essential, moreover, to establish capacities that could pose a material barrier to China s ambitions. The US has agreed, for example, to lease part of a base in the Philippines to evidence its intent to maintain its treaty commitments. The US has also conducted freedom of navigation exercises, unilaterally and with other naval powers such as Japan and India, and is supplying coast guard and other vessels to some States to increase their naval capacities. 21. Measures such as these had been underway as part of the US freedom of navigation program prior to China s actions in response to the Philippine litigation have however greatly increased the need for naval and air challenges, as well as for

8 400 Chinese JIL (2016) material support, increasing the risk of conflict. Given China s escalation, moreover, US support has been designed and announced as a deliberate challenge to China a necessary but unwelcome development that has strained US/China relations. The islands and features over which disputes have been raised are unlikely to warrant the threat or use of force regardless of continuing Chinese actions. Thus, while the litigation has resulted in greater pressure on China, this outcome is hardly what the Philippines sought, or one which any sensible security planning would regard as beneficial. Impact on the Rule of Law 22. International lawyers and diplomats cannot be faulted for attempting to advance the rule of law in this chaotic world. That is, and should be, our ultimate aim. But we cannot safely assume that every assertion of jurisdiction by an international tribunal will advance the rule of law merely because the political process, with its potential use of pressure and even force, will be replaced with a legal ruling purporting to settle the dispute involved. Whether the rule of law is advanced through a given adjudication depends on the real-world consequences of the litigation and of the decision issued as a result. Judged by that standard, the Philippine case has already adversely affected the interests of all parties, and the consequences are likely to get even worse after the tribunal s decision unless a way is found to break the cycle of challenges. 23. It also seems inconceivable that the Philippine litigation will develop effective international legal doctrine. Some clarifications of uncertain elements of the Convention will be crafted by the capable and distinguished arbitrators. But pushing States into mandatory arbitration of highly political issues is an unlikely way to win their allegiance to the rule of law. States will form their own judgments as to what they agreed to submit to a tribunal s discretion, and those views will lead them to reject awards they regard as illegitimate, perhaps to decide to withdraw from the international agreement relied on in such situations, or refuse to submit disputes to arbitration under other agreements. The purpose of international law in such cases is to serve the needs of States in resolving disputes peacefully, not to force them to accept the decisions of third parties (however expert or neutral) on issues they reasonably insist are not subject to adjudication. 24. States do often agree to submit important disputes to third-party adjudication, especially border disputes. But that trend of voluntarily resorting to mandatory dispute resolution is undermined by tribunal decisions taking jurisdiction where a genuine dispute exists over whether the issue was submitted. It should be no surprise that Russia has rejected arbitration of the Greenpeace dispute of A particularly unhappy blow to the progress of international law inflicted by the Philippine action is that it has materially diminished the prospect of acceptance by the US of UNCLOS itself. If the tribunal decides the Philippine claim explicitly

9 Sofaer, The Relearning the Limits of International Adjudication 401 or implicitly on a basis inconsistent with the Treaty s limitations or China s reservations, the US is unlikely ever to ratify the Convention, and other States may modify or nullify their ratification. Together with seven other former Legal Advisers of the US Department of State (four Democrats and four Republicans), I drafted and signed a letter calling on the Senate Foreign Relations Committee to ratify UNCLOS with appropriate reservations, as several US Presidents, the US Joint Chiefs of Staff, and every recent Chief of Naval Operations (among others) have recommended. One of the key obstacles we have faced in this effort is the argument that LOS tribunals will give insufficient weight to the Convention s limitations and the parties reservations. By taking jurisdiction over the Philippine claims, the UNCLOS Tribunal has undermined the credibility of those of us who have argued that US interests in avoiding adjudication of sovereignty and national-security claims are adequately protected by the very limitations and reservations on which China has relied, along with some 30 other States Parties. The Philippine case is therefore a threat to the effectiveness and acceptability of UNCLOS rather than an initiative that advances the Convention s purposes. 26. China s refusal to respond to the Philippine litigation, and its declared intention to disregard any adverse decision of the UNCLOS Tribunal, in itself diminishes the effectiveness of international law. It reflects a well-established pattern in which States, though almost invariably prepared to implement awards to which they agree they are subject, are notoriously unwilling to abide by awards they regard as illegitimate. Conclusion 27. The US is right to continue its freedom of navigation exercises, as well as to help develop a set of ideas and measures on which States affected by China s unwarranted actions and claims can rely. But such measures would have far greater diplomatic effect if accompanied by a policy of engagement with China that starts with a reconsideration of the Philippine litigation and suspension of the Tribunal s awards on constructive terms. The litigation has been ineffectual, and its withdrawal or suspension would provide a basis for the negotiation of a return to some more peaceful status quo in which neither China nor any other SCS State would have to take extraordinary measures to preserve its position. 28. The US could play a more meaningful role in this process. Instead of repeated calls on China to support the rule of law by abiding by the decisions of a tribunal to which the US has not and would not agree to submit the sorts of decisions sought in the Philippine case, the US should support ending the litigation against China in exchange for agreed curbs on the damage China is doing to its own foreign relations in implementing claims based on the Nine-Dash Line. China must be convinced that it is in its own interests to return to abiding by Deng Xiaoping s profoundly wise call

10 402 Chinese JIL (2016) for assuming sovereignty and setting that issue aside to pursue joint use and development. The Philippine litigation has no useful part in any sound strategy to achieve that objective and thereby to restore good maritime relations at the bargaining table, where such a result might actually be achieved.