What does Philippines sue China in Arbitrator Tribunal? How do they do it?

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What does Philippines sue China in Arbitrator Tribunal? How do they do it?  

A work of Nguyen Dang Thang – Postgraduate in Law in England, analyses mechanism to solve disputes in UNCLOS and Filipino concern about the South China Sea and find the perspective if Philippines sues China and the lesson for Vietnam.  

Last July, Filipino minister Abert del Rosario announced an ability to solve dispute with China in the South China Sea in the International Court. Firstly, Philippines suggested China to use the law of sea tribunal to solve the dispute in the Spartlys Island. After, China rejected and requested two-side negotiation, Filipino Minister confirmed strongly that they would use UNCLOS 1982 to sue China.  The Minister announced they would use UNCLOS to define what areas in the sea are dispute or not.  

Hypothesise the right of the Philippines and China claims in the Spartlys, the way Philippines sue China to protect its interest will be a lesson for Vietnam when face the same situation which the spokesman of Vietnam described “China are make a non – dispute area to dispute one. To understand how Philippines sue China, we must know what they want to sue. Although, Philippines doen’t show their action but they quite feel confidence. The answer was maybe found out by studied Filipino concern about the South China Sea in connect to the UNCLOS and perspective of handling the issue.

Reed Bank incident – a recent special interest of Philippines.

Filipino Minister’s declaration of using mechanism of UNCLOS to solve disputes started from tension between Philippines and China in Spratlys (Kalayaan or KIG in Filipino), firstly in Reed Bank. In the last March, two Chinese patrol ships harassed an English seismic survey vessel hired by Philippines in Reed Bank [3]. Philippines had strong reaction immediately when sent two fighters and two vessels to escort during survey time. In diplomatic, Philippines sent a diplomatic note and representative to protest.   

As a result, in April, Philippines continued to protest China in the UN again the Chinese U – shape line map which described Filipino sovereignty in Spartlys belonging to China. In the diplomatic note of Philippines, It showed that the Chinese nine dotted U – shaped line didn’t base on any article in the International Law, especially the UNCLOS. In response, China sent a diplomatic note to the UN Secretary to confirm its territory in Spartlys which followed the UNCLOS and its legacy system and emphasis that “Spartlys island completely has its territory water EEZ and continental shelf.”.[5]

In the 21^st conference of members of UNCLOS in last July, in New York, the Secretary of Sea and Ocean issue Committee of Philippines concerned that the incident in Reed Bank indicated that an area that belong to Philippines without dispute, now is dispute issue[6]. Comparison to speech of Minister of Philippines, They intend to use the Arbitrator Tribunal to confirm Reed Bank belong to Philippines. This is very necessary because this area has potential for oil. The president of Philippines recently declared to protect this area[7] and they have afforded weapons to increase their military power. However, military power of Philippines is one of the weakest in ASEAN and doesn’t compare to China. Moreover, solutions to handle sovereignty dispute are negotiation in peace than violence. So that, using the Arbitrator Tribunal to solve sovereignty dispute is a smart solution of Philippines. The question is “Can Philippines do it?”. To answer it, we must understand mechanism and progress of UNCLOS and the Arbitrator Tribunal.

Mechanism to solve dispute in UNCLOS and ability to apply in dispute between Philippines and China in the South China Sea.

Mechanism to solve dispute in UNCLOS seems to be the most modern and a model in solving dispute mechanism in the international laws. Before go to the detail, we must press a regular. The objects of dispute must be explainable and applicable in the UNCLOS.  

Solving dispute mechanism in UNCLOS is in Part XV and detailed in some appendices. Part XV in UNCLOS has three sections, two first sections write about sequence and procedure to solve the dispute and third section write about some exceptions in applying procedure to solve the dispute.

Section I of Part XV contains some articles about dispute resolution; the most remarkableness in this section is the obligation to exchange views when dispute arises (Article 283). When all parties used the Section I but dispute couldn’t be solved, any party can unilaterally use the Section II to find a judgment that has jurisdiction over all parties (Article 286). In other way, the UNCLOS regulations in Section II, Part XV set a binding procedure to solve the dispute and it will give a enforced and ending judgment to all parties (Article 296). With Section II, All disputes, which relate to explain and apply the UNCLOS, will be solved. This is an advance and high valuable point of the UNCLOS.  

There are four procedures for settlement of dispute in Article 287, Section 2, Part XV: (i) The International Tribunal for the Law of Sea established in accordance with Annex VI; (ii) The international Court of Justice (a part of UN); (iii) An tribunal constituted in accordance with Annex VII and (iv) a special tribunal constituted in accordance with Annex VIII for one or more of the categories of disputes specified therein. To remain independence between two states in choosing procedures for settlement of dispute, if both of two states choose one procedure for settlement of dispute, the procedure will be used. However, in case of two states choose two different procedures or one of two states doesn’t choose any procedure, procedure in Annex VII will be used.  Because, Philippines and China doesn’t choose a procedure, the Annex VII will be used.   

However, it doesn’t mean all disputes in explanation and application will be used Section 2. Section 3, Part XV has some exceptions and limitations in jurisdiction. The most remarkable exceptions in dispute between Philippines and China in the South China Sea, which are listed in Article 298 and Annex VII, exclude dispute in explanation and applicability in sea boundary delimitations in article 15, 74, 83. The exceptions in Article 298 are called “Optional” exceptions, because states have the right to whether exclude some of it or not. In 2006, China declared all disputes which be listed in Article 298 are exceptions include disputes in explanation and applicability of sea boundary delimitation in Article 15, 74 and 83, So, to ensure the arbitrator tribunal in Annex VII will receive its submit, the Philippines must explain dispute with China in the form of explanation and applicability of the Convention but they aren’t exceptions and applicability which China declared to exclude in 2006.

What dispute uses the Arbitrator Tribunal in Annex VII and the Ability

The most concern of the Philippines is separating Reed Bank from the Spartlys dispute. Let’s talk about Reed Bank before discuss about the ability of using any article in the Convention to advance the Philippines.

Reed Bank is a permanent sinking bank [8], 80 nautical miles far from Palawan, 500 nautical miles far from Hainan Island [9] and 35 – 40 nautical miles far from the Spartlys[10].  Because of distance and nature of the bank, the Reed Bank can’t be a national boundary to occupy and it is only a continental shelf of a nation. In the Convention, the length of continental shelf is at least 200 nautical miles and more. However, in the South China Sea, the Reed Bank can’t belong to the Continental shelf of China from the Hainan Island. All claims of China on the Reed Bank are only from claims of China on the Spartlys. In fact, China announced that the Spartlys had its continental shelf in a controversy with Philippines in UN.   

In other hand, distance from the Reed Bank to Palawan is less than 200 nautical miles, so the Reed Bank seems belong to the continental shelf of the Philippines if the Spartlys doesn’t have continental shelf. Therefore, the best way to the Philippines to reject claims of China on the Reed Bank is rejecting claims of China which declared the existence of continental shelf in the Spartlys.

Article 121 in the Convention will explain continental shelf of the Spartlys.  In Article 121, a land which is above water without human habilitation or economic life of its own will be considered a “Rock” without continental shelf. A land which is not a rock will be an island. So, in case China declared that the Spartlys has its continental shelf, it means the Spartlys is island and the Philippines can create a dispute with China by declaring that the Spartlys is rock. So it will become explanation and applicability dispute in Article 121 and the Philippines can itself request a Arbitrator Tribunal in Annex VII to settle this dispute.  Because of disputes in Article 121 aren’t belong to exceptions in Section 3, the Arbitrator Tribunal in Annex VII will have completely right to judge this dispute. If the Arbitrator agrees with the Philippines, all declarations of China will be nullity. In other words, the Arbitrator will indirectly accept that the Reed Bank is in the continental shelf of the Philippines. This is the thing that foreign minister of the Philippines means when declared the Arbitrator Tribunal defined where is dispute area or not.

However, there are some risks in using this strategy. The concept of “rock” with meaning “human habilitation” or “economic life” in Article 121 is confused. In fact, there aren’t any legal precedent in explanation and applicability in Article 121, so the jurisdiction will depend on view of arbitrators. [12] To the Spartlys, researchers have many view points. In case, the Philippines fails to prove the Spartlys is rock, the Spartlys will have its continental shelf and create overlapping claims over the continental shelf. In this case, the Philippines must request the Arbitrator Tribunal to define its continental shelf. But, because of explanation and applicability in Article 15, 74, 83 and declaration of China obeyed Article 298; the Arbitrator Tribunal can’t accept filing. So it can not define clearly the continental shelf of the Philippines in a dispute with China.  

An important point is attitude of China when the Philippines requests the Arbitrator Tribunal in Annex VII. In Annex VII, the Convention set closely and fully a procedure to ensure an establishment of arbitrator tribunal when a party requests. Specifically, the Annex prescribes that in case, a party doesn’t appoint a tribunal or all parties can’t agree about a tribunal, the president of the international tribunal for the law of sea will appoint members of the tribunal (Article 3, Annex VII). Especially, event when one of parties isn’t cooperate, the arbitrator tribunal still have jurisdiction in Article 9 of Annex VII. Therefore, China has one way to take part in the tribunal to protect its declaration.

A lesson from the Philippines

When China always wants to negotiate the dispute bilaterally and impose its views, it’s smart and audacious for the Philippines to request unilaterally establish a arbitrator tribunal in Annex VII to protect its rights. When a party is stronger than other one, weaker party has no choice to use the international law. The Philippines seems to do all obligations in procedure to set up a arbitrator tribunal in Annex VII. One of those obligations is “view exchanging obligation” by sending a negotiation team to China after the Reed Bank incident and a request of foreign minister of the Philippines to a college of China for using the arbitrator tribunal in its dispute.

As mentioned before, the most suitable dispute object which the Philippines can use to request an arbitrator tribunal in Annex VII is dispute over explanation and applicability of Article 121. A jurisdiction of the tribunal which declare that the Spartlys hasn’t island and continental shelf is interest of the Philippines in the Reed Bank.

However, Some risks maybe still happen when the Philippines uses the arbitrator tribunal in Annex VII to explain and apply Article 121 to the Spartlys because of no law precedent and different views of lawyers. Moreover, China still remains its claims which declare economics zone and continental shelf of the Spartlys. A jurisdiction which declares that the Spartlys has its economics zone and continental shelf isn’t completely bad. At least, it doesn’t make situation worse. Conversely, an answer to question “Claims of china are right or wrong?” can help the Philippines understands what they have, what they don’t have in the South China Sea. It will wipe out equivocality in legality of China’s claims.  Moreover, with no law precedent, the Philippines will have chance to convince the tribunal of explanation and applicability Article 121 in the Spartlys case.

In Vietnam situation, the continental shelf in South West of Vietnam is claimed by China in Viking II event and Vietnam likely faces the same situation like the Philippines. If it happens, Vietnam should think about using the procedure in Annex VII of the Convention to protect its right.

As analysed before, if the Philippines determine to sue China for explanation and applicability of Article 121, an arbitrator tribunal in Annex VII will be established. However, a jurisdiction just has legal value to the Philippines and China. But, a jurisdiction over the Spartlys dispute between China and the Philippines will affect to Vietnam interest. Vietnam will get more information and solutions in its policy in the Spartlys.

Nguyễn Đăng Thắng, Nghiên cứu sinh luật tại Anh

* Nguyễn Đăng Thắng, Nghiên cứu sinh luật tại Anh; Thành viên không thường trú, Trung tâm Nghiên cứu Biển Đông, Học viện Ngoại giao Việt Nam. Tác giả cám ơn Tiến sỹ Dương Danh Huy, Thạc sỹ Nguyễn Thị Thanh Hà, Phó Giáo sư - Tiến sỹ Nguyễn Hồng Thao và Thạc sỹ Trần Lê Phương đã trao đổi quan điểm với tác giả, cung cấp những thông tin quan trọng cũng như góp ý trực tiếp vào bài viết.

[1] “Philippines to seek UN arbitration in South China Sea” Agence France Presse (19 July 2011) <http://globalnation.inquirer.net/6371/philippines-to-seek-un-arbitration-in-spratlys> .

[2] “Thông báo tại cuộc họp báo ngày 29/05/2011 của Bộ Ngoại giao về việc tàu Hải giám Trung Quốc đã cắt cáp thăm dò của tàu Bình Minh 02 thuộc Tập đoàn Dầu khí Việt Nam” http://www.mofa.gov.vn/vi/tt_baochi/tcbc/ns110529201615/view#b1IpAlKkl3wz .

[3] Xem I Storey, 'China and the Philippines: Implications of the Reed Bank Incident' (2011) 11(8) China  Brief 6, 7.

[4] 'Note Verbale No. 000228 dated 05 April 2011 of the Permanent Mission of the Republic of the Philippines to the United Nations', có tại http://www.un.org/depts/los/clcs_new/submissions_files/mysvnm33_09/phl_re_chn_2011.pdf.

[5] 'Note Verbale No. CML/8/2011 dated 14 April 2010 of the Permanent Mission of the People's Republic of China to the United Nations', có tại http://www.un.org/depts/los/clcs_new/submissions_files/vnm37_09/chn_2011_re_phl_e.pdf .

[6] Trích trong Press Release NYPM 30-2011 ngày 22/06/2011 của Phái đoàn thường trực Cộng hòa Phi-líp-pin bên cạnh Liên hợp quốc, có tại http://www.un.int/philippines/news/20110622nypm30.htm .

[7] Xem 'Philippines vows to protect South China Sea assets' Agence France Presse (25 July 2011), có tại http://www.channelnewsasia.com/stories/afp_asiapacific/view/1142928/1/.html .

[8] Xem MJ Valencia, JM Van Dyke and NA Ludwig, Sharing the resources of the South China Sea (Martinus Nijhoff, The Hague, 1997), 232, tập hợp các nguồn khác nhau cho rằng chỗ cao nhất của Bãi Cỏ Rong nằm cách mặt nước biển 9 hoặc 16 mét.

[9] Thông tin theo các báo của Phi-líp-pin.

[10] Tác giả cám ơn Tiến sỹ Dương Danh Huy đã cung cấp thông tin này.

[11] Điều 76 Công ước Luật biển.

[12] Xem Tuyên bố của Thẩm phán Vukas và Phản đối của Thẩm phán Anderson, chú thích 3, về đảo Heard của Úc trong vụ “The ‘Volga’, Russian Federation v Australia, Prompt Release”, ITLOS Case No 11 (ITLOS 2002)