Going to the ‘heart of Unclos’

(The following are excerpts from Chapter 17 of the book Rock Solid: How the Philippines Won Its Maritime Case against China, by veteran journalist and Rappler editor at large Marites Dañguilan Vitug. Published by the Ateneo de Manila University Press, the book will be launched at 5 pm on Wednesday, July 18, at the First Pacific Hall of the Rizal Library, AdMU in Quezon City.)

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As the Philippines was mapping out its plan to hale China to an international court, it realized that the Asian behemoth had anticipated legal challenges to its actions in the South China Sea. China had covered its bases, fortifying itself and puzzling its adversaries on what route to take.

The Philippine government scanned its options and narrowed these down to 3: first, to take China before the International Tribunal for the Law of the Sea (Itlos), a judicial body established by the United Nations Convention on the Law of the Sea (Unclose) that settled disputes on the interpretation and application of the convention; second, to go to the International Court of Justice, more popularly known as the World Court, the principal judicial organ of the United Nations; and, third, to seek relief from the Permanent Court of Arbitration (PCA), an intergovernmental organization that arose from historic conventions that pushed for the resolution of international disputes through arbitration.

When a country ratified the Unclos, it usually specified the tribunal it preferred to handle its compulsory arbitration. These were the Itlos, the ICJ, and the PCA. However, when this was not done or when the state parties had conflicting choices, the default process would be ad hoc arbitration under the auspices of the PCA. Neither China nor the Philippines, it turned out, spelled out its choice of tribunal. Thus, the default mode was the only option, an arbitral tribunal that would be formed under the auspices of the PCA, based in The Hague, to which China had acceded.

The Unclos provided in its annex on arbitration – referred to, in shorthand, by public international law advocates as Annex VII– the functions and process of an arbitral tribunal that would preside over compulsory settlement of disputes.

These seemed straightforward enough. But the problem was that China had opted out of the compulsory arbitration procedure when the case had to do with maritime delimitation (overlapping maritime zones) and sovereignty. China clearly stated so in a declaration it made with the Itlos.

As for the World Court, China refused to fall under its ambit. UN member-states were required to file declarations to recognize the Court’s jurisdiction as compulsory, but China, among other countries, did not. That, too, was out of the question. 

What initially seemed as a simple process, however, offered only a small window to the Philippines because, in 2006, China declared that it would not be subjected to arbitration on questions of sovereignty and maritime delimitation. This meant that resolving ownership of maritime features and islands and defining sea boundaries were out. These paths were closed to the Philippines. 

The questions that whirled in the minds of the lawyers were: How then was the Philippines going to frame its case outside of China’s reservations? Could the Philippines file an arbitration suit without the consent of China? Under international law, states could not be sued without their consent. That appeared to be a binding rule. Was the Unclos covered in this all-embracing norm? This was also a subject of discussion among lawyers in the Philippines who were keenly watching developments, as it appeared not to be self-evident. 

One view was that China’s consent was definitely needed. 

The other side of the debate argued that once a state signed the Convention, it consented to compulsory arbitration. 

For the team of Paul Reichler, they held the position that submitting to compulsory arbitration under Unclos was a given once a state became a signatory. “It was giving a state’s consent in advance,” he said, “so that’s why you could get arbitration over China for matters covered by the Law of the Sea Convention.” 

***

 

The issue of consent was clarified and eventually settled. The next hurdle was making the Philippine case. This included being certain that the case was going to be accepted by an arbitral tribunal, that the judges would say yes, they were going to hear it.

By August 2012, things were moving and taking shape. The government tapped 4 international lawyers to give pre-litigation advice: W. Michael Reisman, professor of international law at the Yale Law School; Bernard Oxman, professor at the University of Miami School of Law specializing in the law of the sea; Carolyn Lamm, a partner in White and Case, a Washington, DC-based law firm, whose practice focused on international arbitration; and Paul Reichler, who headed the international arbitration and litigation department of Foley Hoag. 

The Philippine government kept all the back-and-forth with the foreign lawyers quiet, wary that this could leak and that China would withdraw from the Unclos. (It would take a year, however, for a state to extricate itself from the Convention.) By this time, President Aquino had yet to give the go-signal to the arbitration, as more detailed information was getting to him.

Some hesitation emerged from the Office of the Executive Secretary. Paquito Ochoa Jr seemed initially supportive of the move, as shown in his memo to President Aquino in late August 2012. He discussed the political, diplomatic, and economic costs of such a suit, ranging from more Chinese aggression in the West Philippine Sea to restricting investments, trade, and tourism to the Philippines. He raised the specter of failure, particularly the impact of failure if the tribunal rejected the suit on the overall claims of the Philippines. Still, he recommended pushing ahead but on a more solid basis and with more clarity on key issues. 

Later in the year, in October, Undersecretary Michael Frederick Musngi wrote his boss, Ochoa, sounding like he was stepping on the brakes while all the international lawyers had recommended a suit against China. He pushed for a “more thorough political, economic, and security assessment on the proposed legal strategy of the international advisers…given the political risks of a unilateral action against China.” He cited vulnerabilities of the Philippines to Chinese retaliation or the “possible deterioration of the bilateral relationship with China particularly at a time when efforts to warm up the relationship have shown some positive results.” 

This apparently built up to a last-minute effort from the Office of the Executive Secretary to block the filing of the case and instead have an “exchange of views” with China, which the Unclos also provided for, obliging states to settle disputes on interpretation or application of the convention, basically through formal talks. This “less provocative” option was proposed by Musngi in a memo to Ochoa days before the government planned to file the case in January 2013. In effect, Musngi was advocating that the Philippines and China stick to bilateral talks, a mode preferred by China. An “exchange of views” had been happening between the Philippines and China since the mid-1990s but without success.

President Aquino did not remember any effort from his underlings to slow him down or completely dissuade him from pursuing a case against China. Before he made the decision, he weighed the impact of China as a market for Philippine products should it impose economic sanctions against the Philippines. But for Aquino, the biggest pressure was “whether or not we stand up for what is ours.” In the end, none of this internal wrangling affected Aquino’s decision to take China tocourt.

***

With Aquino’s go-signal, the coast was clear. The next question then was how the Philippines would maneuver around China’s defenses.

During discussions with the team from Foley Hoag, the route started to take clearer shape: to frame the case as one seeking maritime entitlements of the various features in the West Philippine Sea. This meant defining which among them were islands, rocks, and low-tide elevations (LTE), and the extent of the maritime zones that the Unclos conferred on them.

There was nothing to prevent an arbitral tribunal from exercising jurisdiction over the case. Even if China refused to appear, the arbitral tribunal would still proceed with the case.

Casting his mind back on these early days, Reichler explained: “That was part of the challenge in designing the case to begin with. When we were first consulted by the Philippines on a viable legal recourse or remedy, we said that there are two things that we cannot do. One, we cannot get a Law of the Sea tribunal or an arbitral tribunal established under the Law of the Sea Convention to rule on sovereignty over islands because there is no jurisdiction. Two, we could not get delimitation of a maritime boundary because there is a provision in the Convention that allows a State to immunize itself from arbitration over establishing boundaries and China has availed itself of this.” 

Clarifying maritime entitlements, he pointed out, was the “only choice.” 

***

The Philippine case was anchored on two main issues: to show that China’s 9-dash line claim was illegal; and to define the status of each of the features in the West Philippine Sea and their maritime entitlements.

It was only in 2009 when China made official its U-shaped 9-dash line claim, which it transmitted to the UN. China claimed historic rights but it would soon be found to have no legal basis, fiction woven from thin air, with boundaries arbitrarily drawn over existing maps. 

The Philippines submitted volumes of text, more than 3,000 pages, including at least 170 maps, to build its case. Reichler’s firm hired an expert cartographer to help draw the maps “in ways that were both accurate but also revealing and most expressive of the point that we were trying to make...because we were also making a legal argument using pictures.” Through the maps, the Philippines showed the “outrageousness” of China’s claims.

On the first day of the oral hearing on jurisdiction in July 2015, Reichler made it very clear that the case was at the heart of Unclos which had extinguished so-called historic rights coastal countries claimed to have over the seas. The new order, as nations had agreed in Unclos, was primarily about EEZs and maritime zones. 

The oral hearings were intensive, as the transcripts showed. The tribunal conducted a total of 7 days of hearings, 3 on jurisdiction issues and 4 on the merits of the case. These were held more than a year apart.

To completely annihilate China’s historic claim, Andrew Loewenstein presented maps to the tribunal and narrated historical facts from as far away back as the dynasties of the 11th century. He narrated the story of colonial powers which navigated through the South China Sea, stringing a chronology of major events. He told the tribunal that the most telling indication that China had no historic rights in the waters of the South China Sea was that it first claimed the existence of such rights in May 2009. “For over 900 years, China made no claim to the islands in the South China Sea…. China continuously defined itself as extending no farther south than the island of Hainan. That historical continuity goes back at least as far as the earliest map of China that the Philippines has identified: a stone etching done in 1136…when the map is overlaid on a map showing the geography of the South China Sea region, China extends only as far south as Hainan.”

The other big chunk of the case had to delve into the nature of the maritime features, an educational foray for the civilian public that followed the proceedings. A hierarchy of these features prevailed, based on what it was entitled to.

Why did it matter if a feature were an island or rock or an LTE? Going by Article 121 of the Unclos (regime of islands), an island generated an exclusive economic zone (EEZ) or continental shelf. If features were determined to be islands, then this could have led to overlapping entitlements to maritime zones between the Philippines and China. But if these were rocks, then the features would have limited entitlements, only 12 nautical miles, taking away any overlaps. This would definitely clear up the situation in the contested area.

The Unclos defined an island as a naturally formed land permanently above water that could, on its own, sustain human habitation and economic life. Islands were entitled to 12 nautical miles of territorial seas described as an “adjacent belt of sea” and a 200-nautical-mile EEZ. 

Rocks were different. They were land permanently above water but which could not sustain human habitation or economic life on their own. They were not entitled to an EEZ or continental shelf, which comprised the seabed that extended beyond its territorial sea, but were allowed 12 nautical miles of territorial seas.

A low-tide elevation or LTE was a naturally formed land area above water at low tide but submerged at high tide. It was not entitled to any maritime zones. 

The Philippines argued that there were no overlapping entitlements to an EEZ or continental shelf in the area surrounding low-tide elevations in the West Philippine Sea. And none of the features in the Spratly group were islands entitled to an EEZ or continental shelf. To prove this, the Philippines showed that they were not capable of sustaining human life and economic activity on their own. 

As Reichler told the judges in one of the hearings, “If you were to find that one or more of these tiny and insignificant features generates a 200-mile entitlement, or that it may do so, this would open the door to much mischief. It would allow China and potentially other claimants to continue to assert EEZ and continental shelf rights that overlap.”

Reviewing the case, Reichler said that this was a more challenging issue because there was no precedent. It was a novel case.  

During his turn at the podium, Reichler pointed out: “It would be unjustifiable and inequitable to allow tiny and insignificant features, which just happen to protrude about water at high tide, to generate huge maritime entitlements to the prejudice of other proximate coastal states with lengthy coastlines and significant populations.”

The tribunal asked: might there be any other maritime feature claimed by China that was capable of generating an entitlement to a 200-mile EEZ or continental shelf which would overlap the 200-mile entitlements of the Philippines? 

“The answer is no,” Reichler said. “None of the features that comprise the Spratly group is entitled to an exclusive economic zone or continental shelf.”

What the Philippines was after was a judgment that China’s 9-dash line was not faithful to the Unclos and therefore was invalid, and clarity in the country’s maritime entitlements in the light of China’s atrocious claims. If the 9-dash line was declared illegal, that would take away a huge cause of the dispute. And a characterization of the features as rocks or LTEs, as opposed to islands, would generate limited maritime zones of 12 miles, meaning, these would not overlap with China’s claims.

As Albert del Rosario said in his impassioned plea before the arbitral tribunal as the hearings opened: “It is a dispute that goes to the very heart of Unclos itself. It is not just the Philippines’ claim against China that rests in your capable hands. It is the spirit of Unclos  itself.” 

The Philippines overcame its first hurdle: the tribunal decided to hear the case. Rappler.com 

 

Interested readers can listen to Marites Dañguilan Vitug and buy copies of Rock Solid at the these events in the Philippines and abroad.