United Nations Convention on the Law of the Sea - jurisdiction and admissibility - nonparticipation of a party - South China Sea claims, activities, and maritime features.

Author:Noyes, John E.

In re Arbitration Between the Philippines and China. PCA Case No. 2013-19. Jurisdiction and Admissibility. At http://www.pca-cpa.org.

UN Convention on the Law of the Sea Annex VII Arbitral Tribunal, October 29, 2015.

On October 29, 2015, an arbitral tribunal (Tribunal) constituted under Annex VII to the 1982 United Nations Convention on the Law of the Sea (UNCLOS or Convention) (1) found it had jurisdiction over seven Philippine submissions concerning Chinese activities in the South China Sea and the status of particular features there. (2) The Tribunal reserved for the merits stage the question of its jurisdiction over several other submissions. The case required the Tribunal to address challenges occasioned by China's nonparticipation. The decision reinforced the central importance of UNCLOS and its system of compulsory dispute settlement with respect to maritime activities and entitlements, even where sovereignty over the maritime features that give rise to entitlements is contested.

The Philippines initiated the case on January 22, 2013. Part XV, section 2 of UNCLOS, to which China and the Philippines are parties, provides for compulsory procedures entailing binding decisions. Since neither state had declared its preferred forum among several choices specified in the Convention, both parties were deemed to have accepted Annex VII arbitration. (3) On April 21, 2015, the five-member Tribunal ordered that the proceedings be bifurcated so that it could deal first with questions of jurisdiction and admissibility. In its award of October 29, 2015, the Tribunal fully considered arguments relating to its jurisdiction and ruled unanimously on all points. Although China did not appear and has condemned the Tribunal's decision as "null and void" with "no binding effect on China," (4) the parties will be legally bound by any decision in which the Tribunal has found that it has jurisdiction (para. 114). (5) The Permanent Court of Arbitration is serving as the registry.

The Philippines requested rulings on fifteen submissions (para. 101). Submissions 1-2 seek declarations that UNCLOS governs China's rights and obligations in the South China Sea, and that the claims of China based on "historic rights" within its "nine-dash line" are invalid. (6) Submissions 3-7 directly or indirectly assert that certain features in the South China Sea are not islands entitled, under Article 121(2) of UNCLOS, to a continental shelf and a 200-nauticalmile exclusive economic zone (EEZ). If these features are not such islands, they may be either Article 121(3) islands ("[r]ocks which cannot sustain human habitation or economic life of their own"), entitled to a territorial sea but no continental shelf or EEZ, or low-tide elevations, entitled to no maritime zones of their own. Submissions 8-14 concern Chinese activities, claiming, inter alia, that China violated UNCLOS by building artificial islands, harming the marine environment, and interfering with the Philippines' rights concerning resource exploitation and navigation. Submission 14 focuses on Chinese activities after the arbitration began that allegedly have "aggravated and extended the dispute." Submission 15 requests that China "desist from further unlawful claims and activities."

In the Tribunal's view, none of submissions 1-14 concerns sovereignty over land territory (paras. 398-411). The Tribunal found that it had jurisdiction to consider submissions 3, 4, 6, 7, 10, 11, and 13, subject to a few conditions or caveats (para. 413(G)). In accordance with Article 20(3) of its Rules of Procedure, the Tribunal reserved to the merits stage consideration of its jurisdiction with respect to submissions 1, 2, 5, 8, 9, 12, and 14, because the issues presented "do not possess an exclusively preliminary character" (para. 413(H)). Finally, the Tribunal directed the Philippines "to clarify the content and narrow the scope of its Submission 15" and also reserved the question of its jurisdiction regarding that submission (para. 413(I)). (7)

China has consistently asserted that it did not accept and would not participate in the arbitration. China's nonparticipation had implications for the constitution of the Tribunal and the conduct of proceedings. After the Philippines selected Rudiger Wolfrum as an arbitrator, the president of the International Tribunal for the Law of the Sea, following the procedure in Annex VII, Article 3 of UNCLOS, chose the remaining four arbitrators (Thomas A. Mensah, presiding arbitrator; Jean-Pierre Cot; Stanislaw Pawlak; and Alfred H. A. Soons). The Tribunal found that it had been properly constituted (para. 413(A)) and that China's nonappearance "does not deprive the Tribunal of jurisdiction" (para. 413(B)). When a party does not appear, the Tribunal must "satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law" (paras. 12, 39, 113). (8) Although China did not submit any formal pleadings, the Tribunal consulted China's detailed 2014 Position Paper, (9) along with letters from China's ambassador to the Netherlands. It treated those communications as effectively constituting a plea that the Tribunal lacked jurisdiction, which led the arbitrators to bifurcate the proceedings (para. 15). (10) They also considered, proprio motu, several arguments not raised in communications from China.

The Tribunal examined three main issues related to its jurisdiction. First, did the matters in dispute concern the interpretation or application of UNCLOS? Second, had the preconditions for third-party dispute settlement under Part XV, section 1 (notably Art. 281) been...

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