All international disputes are by their nature political. Opting to utilize international third-party adjudication to resolve or be a step in the resolution of an international dispute, while rarely pursued by States, does not alter the political nature of the dispute. International courts and tribunals, however, generally only deal with the legal questions and the related facts. As a result, where States accept to utilize third-party adjudication to resolve a dispute, they essentially accept to depoliticize the matter in dispute and to focus on the legal issues. At the macro-level, the South China Sea Arbitration2 was a situation where China viewed the subject matters in dispute as political and beyond the jurisdiction and competence of the Tribunal established pursuant to the United Nations Convention on the Law of the Sea3 at the request of the Philippines.4 The Philippines characterized the subject matters in dispute as that of interpretation and application of the los Convention, a legal matter, and thus, within the jurisdiction of the Tribunal.
In most situations, the lack of mutual consent to utilize international third-party adjudication prevents its use.5 However, the los Convention provides for compulsory adjudication of disputes concerning the interpretation and application of the Convention, subject to a number of exceptions.6 As China
China declined to participate in the establishment of the Tribunal or to participate or appear before the Tribunal.7 In deciding not to participate, China has followed a small number of States which have similarly declined to participate in cases before the International Court of Justice,8 as well as the more recent non-participation by the Russian Federation in the los Convention procedures in the Arctic Sunrise Case brought by the Netherlands.9 As noted by Merrills: “The cases in which the [International] Court’s competence to handle politically charged disputes has been questioned have all been referred unilaterally and involved a basic disagreement as to how the dispute should be characterized.”10
The Tribunal in the South China Sea Arbitration ultimately held that it had jurisdiction to consider the merits of almost all the subject-matter claims
The short and long-term consequences, if any, of the Arbitration on the relations among and the actions of China, the Philippines and the other States with a clear interest in the South China Sea remain for the future but will be dictated largely by political and strategic considerations.
This contribution will focus on legal issues and matters, specifically those concerning: first, the legal status of the 2016 Award; second, the decision of the Tribunal that the subject-matter of the dispute regarding the legal status of certain maritime features as rocks or islands was within the jurisdiction of the Tribunal as this subject matter did not deal with territorial sovereignty or maritime boundary delimitation; and finally, the decision of the Tribunal that it had jurisdiction to deal with China’s historic rights claim and the nine-dash line and the decision on the merits on this matter.
ii Legal Status of the Award13
As noted above, there are two parts of the Award, the first dealing with the question of whether the Tribunal had jurisdiction over the subject matter of the Philippine submissions and, second, the Tribunal having decided it had jurisdiction to deal with most of the Philippine submissions, the merits of the submissions made by the Philippines.
In respect of the jurisdiction of the Tribunal to deal with the subject matter of the Philippine submission, the los Convention, Article 288(4) provides: “In 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.” Thus, pursuant to the los Convention, a court or tribunal has the competence (jurisdiction) to decide whether it has jurisdiction (competence) to determine whether both States involved have consented to have a tribunal deal with a disputed matter. This wording follows the Statute of the International Court of Justice, Article 36(6) that: “In the event of a dispute as to whether the Court has jurisdiction,
As already noted, the South China Sea Arbitral Tribunal found that it had jurisdiction to consider the merits of almost all of the claims made by the Philippines and decided in favour of the Philippines on the merits.15
The los Convention, which is the basis of the relevant international law regarding the creation, operation, jurisdiction and results of the South China Sea Arbitral Tribunal is very clear in Annex vii, Arbitration, Article 11 that: “The award of the arbitral tribunal shall be final and binding and without appeal …. It shall be complied with by the parties to the dispute.” (emphasis added)
China has further stated that it “neither accepts nor recognizes” the Award.19 There is a modest practice of States having opted not to accept or recognize, and thus not comply with, decisions of the International Court20 and in the case of the Russian Federation, with the decisions of International Tribunal for the Law of the Sea (itlos) and the tribunal established pursuant to the los Convention.21 As noted by Merrills, adjudications that involve both legal and significant political matters where the latter remains unaddressed are “unlikely to be respected.”22
[I]t is not enough to claim that, just because Article 36(6) of the Court’s statute says that it may decide jurisdiction, the Court, indeed, did have jurisdiction in this particular dispute. No court, including the International Court of Justice, has the legal power to assert jurisdiction where there is no basis for that jurisdiction. (emphasis in original).18
iii The Rocks-or Island Legal Status of Features: The Issue of Jurisdiction
It was the position of the Philippines that the Tribunal had jurisdiction to determine whether certain insular features in the South China Sea were rocks or islands for the purposes of ocean jurisdiction entitlement, even though these features were subject to territorial sovereignty disputes, as this involved interpretation of the provisions of the los Convention.23 Further, the Philippines asserted that the territorial sovereignty dispute with China was “entirely irrelevant to the Tribunal’s jurisdiction” since at no point would the Tribunal be
China in a “Position Paper” issued on 7 December 2014,26 put forth a number of arguments concerning the jurisdiction of the Tribunal. For the purposes here two were of importance. China argued that the heart of the dispute between it and the Philippines concerned questions of territorial sovereignty and that such questions did not involve disputes respecting the “interpretation or application” of the los Convention as set out in Article 288. Second, as an alternative, was the argument that the rock or island subject matter of the dispute concerned maritime boundary delimitation and that as a result of China’s Article Declaration of 26 August 2006,27 such subject matter was exempted from the compulsory adjudicative jurisdiction under the los Convention pursuant to Article 298(1)(a)(i).28
There had been a number of international adjudications involving maritime boundary delimitation and territorial sovereignty disputes.29 In the Eritrea-Yemen Arbitration is an example of the sequential approach taken in these cases where the parties agreeing to utilize a two-stage approach for the Arbitration with the territorial sovereignty issue dealt with in the first stage and the delimitation issues (including the legal of maritime features) dealt
In reaching its conclusion that it had jurisdiction to determine the rock or island status of the contested features, the Tribunal stated that it: “does not accept … that it follows from the existence of a dispute over sovereignty that sovereignty is also the appropriate characterization” of the Philippine claims.31 The Tribunal took the view that:
none of the Philippine Submissions required “an implicit determination of sovereignty;”
any decision it reached on the Submissions would not advance or detract from either State’s sovereignty claims;
the resolution of the Philippines’ claims did not require the Tribunal “to first render a decision on sovereignty;” and
the “actual objective” of the Philippines’ claims was not to advance its position in the Parties’ dispute over sovereignty.32
As “the Tribunal does not consider the disputes between the States to be about maritime boundary delimitation,” the Tribunal decided that Article 298(1)(a)(i) of the los Convention was not applicable to deprive the Tribunal of jurisdiction to determine the rock-or-island status of the contested features.36
[T]he Philippines has challenged the existence and extent of maritime entitlements claimed by China in the South China Sea. This is not a dispute over maritime boundaries. The Philippines has not requested the Tribunal to delimit any overlapping entitlements …35
The Tribunal’s characterization of the dispute as not being about territorial sovereignty was premised on the view that the Tribunal had not been asked, nor saw it as necessary in considering the relevant submissions of the Philippines, to engage in any way in making a determination of territorial sovereignty. Similarly, the Tribunal’s characterization of the dispute as not involving maritime boundary delimitation was premised on the view that the Tribunal had not been asked, nor saw it as necessary in considering the relevant submissions of the Philippines, to engage in formal maritime boundary delimitation.
The Tribunal’s approach was that if it was not directly required or called upon to determine a territorial sovereignty dispute or to formally delimit a maritime boundary, that the Tribunal was not interfering in or prejudicing the territorial sovereignty of either State or interfering in or prejudicing maritime boundary delimitation. The Tribunal was not troubled by what States may “perceive” as an interference in a territorial sovereignty/territorial integrity matter or that an important element of a State’s sovereignty over a maritime feature (as the coastal State) is its assessment and assertion of the legal status
iv The Nine-Dash Line and Historic Rights38
The principal jurisdictional question concerning the nine-dash line and possible Chinese historic rights therein was whether such a claim was captured by the wording of los Convention, Article 298(1)(a)(i) “… disputes … involving historic bays or title.”39 China had not directly raised the “historic bays or title” exemption in the December 2014 “Position Paper.”40 The principal issue on the merits was the relationship between the historic rights asserted by China as existing within the nine-dash line and the rights of the Philippines based on the los Convention in areas where the claimed historic rights were in areas beyond China’s 200 nm exclusive economic zone (eez) or continental shelf and within the eez/continental shelf of the Philippines.
To deal with both the jurisdictional and merits questions, it was necessary for the Tribunal to assess what was being claimed by China within the nine-dash line, in other words, what was “the nature of any historic rights claimed by China” within the nine-dash line.41 The Tribunal stated that: “It is for China to determine the scope of its maritime claims.”42 However, the Tribunal noted that this was “complicated by some ambiguity in China’s position”43 and commented in both the Award on Jurisdiction and the Award that China had not
The examination of the term historic title in Article 298(1)(a)(i) centered on the wording in the 1958 Convention on the Territorial Sea and Contiguous Zone51 and the 1982 los Convention. Both Conventions recognized the existence of “historic bays” (aligned with historic waters52), albeit in a round-about manner,
The term “historic rights” is general in nature and can describe any rights that a State may possess that would not normally arise under the general rules of international law, absent particular historical circumstances. Historic rights may include sovereignty, but may equally include more limited rights, such as fishing rights or rights of access, that fall well short of a claim of sovereignty. “Historic title”, in contrast, is used specifically to refer to historic sovereignty to land or maritime areas. “Historic waters” is simply a term for historic title over maritime areas, typically exercised either as a claim to internal waters …50
The Tribunal took the view that “historic title” wording in the 1958 Convention was tied directly to the historic terminology used in the 1951 Anglo-Norwegian Fisheries Case,55 where the area in question was “an area of sea claimed exceptionally as internal waters”56 and that this was understood as being the meaning of historic title in Article 298(1)(a)(i) – “claims to sovereignty over maritime areas derived from historical circumstances”57 – historic waters.
Having determined that China was claiming historic rights and not historic waters, the Tribunal concluded that the Article 298(1)(a)(i) exception to compulsory adjudication was not available as regards China’s historic claims.58
While questions can be raised, the Tribunal has clarified the meaning and consequences that attaches to historic rights, historic waters and historic title such that States will be well aware of the legal effect of the use of the differing terms particularly in the context of Article 298(1)(a)(i).
As already noted, the principal issue on the merits was the relationship between the historic rights asserted by China as existing within the nine-dash line and the rights of the Philippines based on the los Convention.
Interestingly, the Tribunal referenced the statement of a Chinese delegate made during the negotiation of the fishing provisions of the los Convention that resolutely opposes the idea of historic fishing in another State’s eez commenting that this position is “incompatible” with China’s historic rights claim.60
The Convention does not include any express provisions preserving or protecting historic rights that are at variance with the Convention. On the contrary, the Convention supersedes earlier rights and agreements to the extent of any incompatibility. The Convention is comprehensive in setting out the nature of the exclusive economic zone and continental
shelf rights of other States within those zones. China’s claim to historic rights is not compatible with these provisions.59
The Tribunal also referenced the 1984 Gulf of Maine Case61 where the United States argued that historic fishing rights had a role to play in the delimitation of 200 nm zones and the International Court response that as the waters in question where previously high seas that no special rights could accrue where the fishers in question were simply exercising a high seas right open and available to all.62
Beyond fishing rights, the Tribunal, albeit in a different section of the Award, noted the difficulty of the possibility of any kind of historic right as regards the resources of the continental shelf given the recent (1960s) development of significant offshore oil and gas activities.63 Note might also have been made that the continental shelf regime dating back to the 1958 Continental Shelf Convention64 was premised on preventing States from be able to assert an historic right to shelf resources where that shelf was the natural prolongation of another State.65
It is simply inconceivable that the drafters of the Convention could have gone to such lengths to forge a consensus text and to prohibit any but a few express reservations while, at the same time, anticipating that the resulting Convention would be subordinate to broad claims of historic rights.”66
The Tribunal’s support of the primacy of the los Convention in the areas of fisheries and continental shelf resources is reassuring and may be an important result in preventing the reopening of fisheries disputes internationally and bilaterally.
The decisions on jurisdiction and the merits of the Tribunal regarding the nine-dash line and China’s claimed historic rights are based are based on a specific package of evidence. If China were to produce new or different evidence or perhaps clarify using different terminology what is being claimed within the nine-dash, then a reassessment of the Award might be necessary. Perhaps in anticipation of this, the Tribunal indicated what evidence would be required to sustain a claim of a historic right arising where the waters or activity were, prior to the los Convention, subject to high seas freedoms.68
This diverse article has touched upon three aspects of the South China Sea Arbitration. First, the legal status of the Award is clear – it is binding on both China and the Philippines. Nevertheless, there is a small practice of States that have rejected such binding decision. Second, the Tribunal in determining whether it had jurisdiction to deal with many of the Philippine submissions drew a sharp distinction between the entitlement of an insular feature to either 12 or 200 nm and both the question of the territorial ownership of the feature and maritime boundary delimitation. It is uncertain whether this legal distinction accords with the legal/political understanding held by States of the relationship between the rocks-islands difference and territorial sovereignty and maritime boundary delimitation. Third, the Tribunal clearly and correctly rejected the idea, presented to them in the form of China’s nine-dash line, that a State a party to the los Convention can have historic rights to fish or to the resources of the seafloor within the 200 nm zone of another State.
The main articles that are included in the Yearbook were presented as part of a conference entitled “The Aftermath of the South China Sea Arbitration: International Law, Politics, and Security Perspectives” held on 18 – 19 July 2016 in Taipei, Taiwan and the 2016 dila-Korea and kiost International Conference entitled “South China Sea Arbitration and Beyond Territorial and Maritime Disputes in East Asia” held on 5 – 6 October 2016 in Seoul, Korea. Special thanks go to Dustin Kuan-Hsiung Wang, Professor of the Graduate Institute of Political Science of National Taiwan Normal University, who organized the conference in Taipei.
Faculty of Law, University of Victoria, Victoria, British Columbia.
In the Matter of the South China Sea Arbitration (the Philippines and China), Award on Jurisdiction and Admissibility (29 October 2015) and Award (12 July 2016), on the website of the Permanent Court of Arbitration at www.pca-cpa.org.
United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 21 i.l.m. 1261 (entered into force 16 November, 1994). [Hereinafter, los Convention].
Philippines, Notification and Statement of Claim, 22 January 2013, South China Sea Arbitration, Philippines Memorial, Vol. iii, Annex 1, on the pca website, supra note 2.
See: James Crawford, Brownlie’s Principles of Public International Law 718 (2012).
los Convention, supra note 3, Part xv.
See: China, Note Verbale No. (13) pg-1039, 19 February 2013, in Philippines Memorial, Vol. iii, Annex 3 and China, Note Verbale 29 July 2013, in Philippines Memorial, Vol. iii, Annex 4, on the pca website, supra note 2.
See: Fisheries Jurisdiction Case (Germany v. Iceland), Jurisdiction,  i.c.j. Reports 43 and Merits,  i.c.j. Reports 175; Fisheries Jurisdiction Case (United Kingdom v. Iceland), Jurisdiction,  i.c.j. Reports 3 and Merits,  i.c.j. Reports 3, where Iceland did not appear; Nuclear Test Case (Australia v. France),  i.c.j. Reports 253 and Nuclear Test Case (New Zealand v. France),  i.c.j. Reports 457, where France did not appear; United States Diplomatic and Consular Staff in Tehran,  i.c.j. Reports 3, where Iran did not appear; and Case concerning Military and Paramilitary Activities in and against Nicaragua Case (Nicaragua v. United States), Jurisdiction,  i.c.j. Reports 392 and Merits,  i.c.j. Reports 14, where the United States did not appear at the merits phase.
See: Russian Federation, Note Verbale No. 11945, 22 October 2013 delivered to the Netherlands, which states that “the Russian Side does not accept the arbitration procedure under Annex vii … initiated by the Netherlands … and does not intend to participate in the proceedings before the International Tribunal for the Law of the Sea in respect of the request of … the Netherlands for the prescription of provisional measures,” available on the website of the International Tribunal for the Law of the Sea (itlos) at www.itlos.org. See further: The “Arctic Sunrise” Case (Netherlands v. Russian Federation), Provisional Measures Order, 22 November 2013, available on the itlos website; The “Arctic Sunrise” Arbitration (Netherlands v. Russian Federation), Award on Jurisdiction, 26 November 2014 and Award on the Merits, 14 August 2015, on the pca website, supra note 2.
J.G. Merrills, International Dispute Settlement 170 (2005).
Award, supra note 2, at para.1203, for the exception, see para. 1203(6)(a).
Ibid., at para. 1203(B).
Part of this section has been drawn, with modification, from: T.L. McDorman, The South China Sea Arbitration and the Future of the Law of the Sea Convention Dispute Settlement Regime a paper prepared for the International Conference on the South China Sea Disputes and International Law, hosted by Soochow University School of Law, Taipei, Taiwan, April 2016.
Statute of the International Court of Justice, on the website of the International Court of Justice at <icj-cij.org>.
Award, supra note 2, at para.1203, for the exception, see para. 1203(6)(a).
China, Statement of the Ministry of Foreign Affairs on the Award on Jurisdiction and Admissibility of the South China Sea Arbitration by the Arbitral Tribunal Established at the Request of the Republic of the Philippines, 30 October 2015, on the Ministry of Foreign Affairs of China website at www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1310474.shtml and Statement of the Ministry of Foreign Affairs on the Award of 12 July 2016 of the Arbitral Tribunal Established at the Request of the Republic of the Philippines, 12 July 2016, on the Ministry of Foreign Affairs of China website at www.fmprc.gov.cn/nanhai/eng/snhwtlcwj_1/t1379492.htm.
Nicaragua Case, supra note 8.
U.S. Statement, 3 November 1986, u.n. General Assembly, reproduced in United States, Department of State Bulletin (January 1987), Vol. 2118, at p. 83.
China, Foreign Ministry Statement, 12 July 2016, supra note 15.
Four cases have been identified as being ones where a State has “openly and wilfully chosen to disregard” a decision of the International Court. Constanze Schulte, Compliance with Decisions of the International Court of Justice 271 (2004) and see: Malcom N. Shaw, International Law 1104 (2008). The cases are: Albania in the Corfu Channel Case,  i.c.j. Reports 4; Iceland in the Fisheries Jurisdiction Case, supra note 7; Iran in the Hostages Case, supra note 8 and the United States in the Nicaragua Case, supra note 8.
Arctic Sunrise Case, supra note 9.
Merrills, supra note 10, at 171.
Award on Jurisdiction, supra note 2, at para.140.
Ibid., at para. 141.
Ibid., at para. 144.
China, Position Paper on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines, 7 December 2014, available on the website of the Ministry of Foreign Affairs of China at www.fmprc.gov.cn/nanhai/eng/snhwtlcwj_1/t1368899.htm.
China, Declaration of 25 August 2006, available on the u.n. Division for Ocean Affairs and the Law of the Sea (doalos) website at www.un.org/Depts/los/index.htm.
los Convention, supra note 3, Article 298(1)(a)(i):
1. When signing, ratifying or acceding to this Convention or at any time thereafter, a State may, without prejudice to the obligations arising under Section 1, declare in writing that it does not accept any one or more of the procedures provided for in Section 2 with respect to one or more of the following categories of disputes:
(a)(i) disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations, or those involving historic bays or titles, ….
See, for example: Maritime Delimitation and Territorial Questions between Qatar and Bahrain,  i.c.j. Reports 40; Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras),  i.c.j. Reports 659; and Territorial and Maritime Dispute (Nicaragua v. Colombia),  i.c.j. Reports 624; 40 Honduras (2012).
See: Award of the Arbitral Tribunal in the First Stage between Eritrea and Yemen (Territorial Sovereignty and Scope of the Dispute), 9 October 1998, Reports of International Arbitral Awards, Vol. xxii, at 209–332 and Award of the Arbitral Tribunal in the Second Stage between Eritrea and Yemen (Maritime Delimitation), Reports of International Arbitral Awards, Vol. xxii, at 335–410.
Award on Jurisdiction, supra note 2, at para. 152.
Ibid., at para. 153.
Ibid., at para. 155.
Ibid., at para. 156.
Ibid., at para. 157.
Ibid., at para. 366. For a perspective suggesting a broader meaning of the “disputes concerning the interpretation or application of articles 15, 74 and 83” wording in Article 298(1)(a)(i) than was adopted by the Tribunal, see: Chris Whomersley, The South China Sea: The Award of the Tribunal in the Case Brought by Philippines against China – A Critique” 15 Chinese Journal of International Law (2016) (in press).
For a more detailed view, see: Bing Bing Jia, The Principle of the Domination of the Land over the Sea: A Historical Perspective on the Adaptability of the Law of the Sea to New Challenges, 57 German Yearbook of International Law 1–32 (2014).
Part of this section has been drawn, with modification, from: T.L. McDorman, The 2016 South China Sea Arbitration: Comments on the Nine-Dash Line and Historic Rights a paper prepared for the “Public International Law Colloquium on Maritime Disputes Settlement” sponsored by the Chinese Society of International Law, Hong Kong, July 2016. For an excellent analysis of this aspect of the South China Sea Arbitration, see: Sophia Kopela, Historic Titles and Historic Rights in the Law of the Sea in the Light of the South China Sea Arbitration, 48 Ocean Development and International Law (2017) (in press).
Award on Jurisdiction, supra note 2, at para.152 and Award, supra note 2, at para. 171.
China, Position Paper, supra note 26.
Award, supra note 2, at para. 171.
Ibid., at para. 206.
Ibid., at para. 180.
Ibid., at para. 180 and Award on Jurisdiction, supra note 2, at para. 160.
See: ibid., at para. 206.
See: ibid., at paras. 172–187, 200 and 207–214.
Ibid., at para. 214 and see para. 232.
Ibid., at paras. 218–225.
Ibid., at para. 225.
Convention on the Territorial Sea and Contiguous Zone, opened for signature 29 April 1958, 516 u.n.t.s. 205 (entered into force October 10, 1964).
See: Case Concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua Intervening),  i.c.j. Reports 351, at para. 383.
los Convention, supra note 3, Article 10(6) and Territorial Sea Convention, supra note 51, Article 7(6).
Case Concerning the Continental Shelf (Tunisia/Libya),  i.c.j. Reports 18, at para. 100.
Fisheries Case (United Kingdom v. Norway),  i.c.j. Reports 116.
Award, supra note 2, at para. 221.
Ibid., at para. 226.
Ibid., at para. 229.
Ibid., at para. 246 and see also para. 261.
Ibid., at para. 252.
Case concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States),  i.c.j. Reports 246.
Award, supra note 2, at para. 256 and see further at para. 270.
Ibid., at para. 270.
Convention on the Continental Shelf, 499 u.n.t.s. 311.
See: T.L. McDorman, Rights and Jurisdiction over Resources in the South China Sea: unclos and the ‘Nine-Dash Line in S. Jayakumar, T. Koh and R. Beckman, eds., The South China Sea Disputes and the Law of the Sea 159 – 160 (2014).
Award, supra note 2, at para. 254.
Ibid., at para. 261.
See: ibid., at paras. 265–272.