15/03/2021
ON THE SOUTH CHINA SEA ARBITRATION DECISION: WHAT THE PHILIPPINES GAINED, LOST, AND FAILED TO DO
Starting with the good news is always a good thing. So let’s start with what the Philippines gained from the South China Sea arbitral decision.
But before making you happy, let me first highlight this sobering fact, which you can read in Paragraph 5 of the decision, which you can, in turn, read on the website of the Permanent Court of Arbitration.
The Arbitration Tribunal “has not been asked to, and does not purport to, make any ruling as to which State enjoys sovereignty over any land territory in the South China Sea, in particular with respect to the disputes concerning sovereignty over the Spratly Islands or Scarborough Shoal.” Simply put: the Tribunal decision is not about who has sovereignty. It cannot decide on that at all.
So what is it about? Paragraph 1198 of the Tribunal decision clarifies this: “…the purpose of dispute resolution proceedings is to clarify the Parties’ respective rights and obligations…” So that’s it: The Tribunal proceeding is an attempt to “clarify” the rights and obligations of China and the Philippines under UNCLOS, the UN Convention on the Law of the Sea.
Now for the good news.
The Philippines gained the following:
1. The Philippines got the Tribunal to DECLARE that the Tribunal has jurisdiction on the matters included in the Submission it filed (Paragraph 1203, A8)
2. The Philippines got the Tribunal to DECLARE that “between the Philippines and China, the Convention defines the scope of maritime entitlements in the South China Sea, which may not extend beyond the limits imposed therein.” (Paragraph 1203, B1)
3. The Philippines got the Tribunal to DECLARE that China’s “claims to historic rights, or other sovereign rights or jurisdiction, with respect to the South China Sea” based on its “nine-dash line” are not compatible with UNCLOS (Paragraph 1203, B2)
4. The Philippines got the Tribunal to DECLARE that “Mischief Reef and Second Thomas Shoal do not generate entitlements to a territorial sea, exclusive economic zone, or continental shelf and they are not features capable of appropriation” (Paragraph 1203, B4)
5. The Philippines got the Tribunal to DECLARE that “Scarborough Shoal, Gaven Reef (North), McKennan Reef, Johnson Reef, Cuarterton Reef, and Fiery Cross Reef…cannot sustain human habitation or economic life of their own” and therefore they cannot have “an exclusive economic zone or continental shelf” (Paragraph 1203, B6)
6. The Philippines got the Tribunal to DECLARE that Mischief Reef and Second Thomas Shoal “are within the exclusive economic zone and continental shelf of the Philippines.” (Paragraph 1203, B7)
7. The Philippines got the Tribunal to DECLARE that China violated UNCLOS when “through the operations of its marine surveillance vessels in relation to M/V Veritas Voyager on 1 and 2 March 2011” (Paragraph 1203, B8)
8. The Philippines got the Tribunal to DECLARE that China violated UNCLOS when it “promulgated its 2012 moratorium on fishing in the South China Sea’ (Paragraph 1203, B9)
9. The Philippines got the Tribunal to DECLARE that China violated UNCLOS when it didn’t stop Chinese flagged vessels to operate in Mischief Reef and Second Thomas Shoal (Paragraph 1203, B10)
10. The Philippines got the Tribunal to DECLARE that China violated traditional fishing rights of Filipino fishermen in Scarborough Shoal (Paragraph 1203, B11)
11. The Philippines got the Tribunal to DECLARE that China violated UNCLOS when it failed to prevent Chinese flagged vessels to harvest giant clams “that is severely destructive of the coral reef ecosystem” (Paragraph 1203, B12)
12. The Philippines got the Tribunal to DECLARE that China violated UNCLOS because 1) its reclamation and construction of artificial islands, installations, and structures at Cuarterton Reef, Fiery Cross Reef, Gaven Reef (North), Johnston Reef, Hughes Reef, Subi Reef, and Mischief Reef “has caused severe, irreparable harm to the coral reef system;” 2) China has “not cooperated or coordinated with other States bordering the South China Sea concerning the protection and preservation of the marine environment concerning such activities;” and 3) China failed to “communicate an assessment of the potential effects of such activities” (Paragraph 1203, B13)
13. The Philippines got the Tribunal to DECLARE that China violated UNCLOS when it did not get authorisation from the Philippines when it constructed artificial islands, installations, and structures at Mischief Reef (Paragraph 1203, B14)
14. The Philippines got the Tribunal to DECLARE that China violated UNCLOS because its law enforcement vessels “created serious risk of collision and danger to Philippine ships and personnel’ in Scarborough Shoal on April 28, 2012 (Paragraph 1203, B15)
15. The Philippines got the Tribunal to DECLARE that China violated UNCLOS when it continued to breach the UNCLOS while the Arbitral hearing was going on (Paragraph 1203, B16).
So the Philippines got multiple DECLARATIONS. Period.
So here are what the Philippines lost...
The Philippines paid for the entire proceedings. Usually, international arbitration proceedings are initiated through the mutual agreement of the parties involved in a conflict, called "compromis."
Arbitration proceedings have costs paid for by the parties to the arbitration. Because China didn’t consent to and attend this arbitration, the Philippines paid both its share and China’s share for the entire proceedings, which would cover the fees and expenses of the Tribunal, Registry, and experts. This is mentioned in Paragraph 110 of the decision. This is of course on top of the fee the Philippines paid for the international lawyer it hired. According to a report by Bobi Tiglao, the Philippines paid 30 million USD for attorney’s fee alone.
Hughes Reef, Gaven Reef (South), Subi Reef, Mischief Reef, and Second Thomas Shoal are some of the features in the South China Sea that the Philippines is claiming to be part of its territory. They are, however, outside the territorial sea of the Philippines. As requested by the Philippines, the Tribunal declared that low-tide elevations OUTSIDE a State’s territorial sea cannot be appropriated as territory. And because they cannot be appropriated as territory, no country can exercise sovereignty over them (Paragraph 309).
Hughes Reef, Gaven Reef (South), Subi Reef, Mischief Reef, and Second Thomas Shoal are low-tide elevations. Therefore, even the Philippines cannot claim it has sovereignty over these features.
Filipino fishermen cannot have exclusive access to the fishing grounds of the Scarborough Shoal. The Scarborough Shoal has been declared to be “traditional fishing grounds” of many nations, including China and Vietnam (Paragraph 1203, B11)
So what did the Philippines fail to do?
The Philippines failed to ask the Tribunal to ORDER China to do anything. Unlike in a country’s criminal law, the UNCLOS treaty does not have any provision that provides the corresponding punishment for any country that violated the treaty. Because of this, the country filing a complaint, either through an adjudication or arbitration proceeding, MUST stipulate the specific reliefs it seeks against the offending party. The Philippines did NOT do that at all.
When the Aquino Administration filed the arbitration case, the brilliant folks who wrote the complaint didn’t mention what it wants the Tribunal to ORDER China to do if it decides that China breached the UNCLOS.
Compare what the Philippines and the Netherlands did in their respective UNCLOS-related arbitration proceedings.
On October 4, 2013, the Netherlands filed UNCLOS-arbitration proceedings against Russia “concerning the boarding, seizure, and detention of the vessel Arctic Sunrise…and the detention of the persons on board,” which happened in the exclusive economic zone of Russia.
When the Netherlands filed its Submission of Dispute Resolution, its lawyers indicated that the Tribunal DECLARE that Russia violated its UNCLOS obligation AND to ORDER Russia to do the following: 1) Cease the continuation of the wrongful acts; 2) Provide the Netherlands assurances and guarantees that these wrongful acts will not be repeated, and 3) Provide the Netherlands full reparations for the injury caused by the wrongful acts.
You can read this submission on the website of the Permanent Court of Arbitration.
Interestingly, the Arbitration Tribunal in the Russia-Netherlands case ORDERED Russia to reimburse the Netherlands the amount it paid on behalf of Russia, which didn't attend the proceedings. NO such order could be seen in the Philippines-China arbitration decision. Why?
Just like China, Russia didn’t attend the arbitration. And just like the Philippines, the Netherlands won the arbitration. The only difference is: The Arbitral Tribunal has a decision ORDERING Russia to do what the Netherlands asked for. Eventually, Russia and the Netherlands negotiated the implementation of the ORDER.
In the Philippine case, the Arbitral Tribunal has no such decision. It has declarations but NO ORDER.
So the Philippines cannot use the Arbitration decision AT ALL to demand China to do anything (such as leave the South China Sea features it occupies, pay compensation, etcetera) because the South China Sea arbitration decision has NO ORDER, ONLY DECLARATIONS. And because there is NO ORDER in the decision, there is NOTHING to enforce.
If the Philippines would like to make China do anything based on the Arbitral Decision, it must file another UNCLOS-arbitration case. And the Philippines would pay again the full cost of the arbitration because it would probably be snubbed again by China because it prefers to negotiate bilaterally to settle its disputes.
To conclude, the Philippines gained declarations, but no order because it didn’t ask for any of them in its complaint. The best the Philippines could do with this decision is to DECLARE China violated something but NOT ORDER China to do anything. In other words, the decision allows you to BARK but not BITE. Brilliant.
And in the end, the people who gained something tangible are the lawyers, the Permanent Court of Arbitration, and the Tribunal judges that the Philippines paid.
ENDS
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