Bản Tin Liên Hội Nhân Quyền Việt Nam ở Thụy Sĩ
Nhân dân Việt Nam Cảm ơn những Người Bạn
láng diềng Phi Luật Tân.
Cộng sản Bắc
Kinh và mấy chế độ chư hầu lần đầu tiên thất bại trên mặt trận Công Pháp Quốc Tế
về Biển Đông
Ngày 29
tháng Mười năm 2015, Tòa Trọng tài Thường trực tại
La Haye, Hòa Lan, đã chính thức xác định rằng Tòa này có thẩm quyền
để xét xử về những yêu sách lãnh thổ trên biển Đông của Phi Luật Tân trong
khu vực tranh chấp với Trung Cộng. Xin đọc Thông
Cáo mới nhứt, ra ngày 29 tháng Mười năm 2015, của Tòa Trọng Tài Thường Trực La
Haye, Hòa Lan, liên quan đến
vụ Phi Luật Tân một mình đứng đơn kiện Trung Cộng vi phạm chủ quyền lãnh thổ Phi Luật Tân trên biển Đông.
Đây là một thất bại quan trọng trên mặt trận Pháp Lý
quốc tế của Cộng sản Bắc Kinh và mấy chế độ chư hầu, mà Việt cộng đứng
hàng đầu. Bởi lẽ Tòa đã bác bỏ những lập luận của Bắc Kinh ngoan cố cho rằng
vụ Phi Luật Tân thưa kiện thực ra là một cuộc xung đột về chủ quyền lãnh thổ
lãnh hải của Trung cộng. Ai cũng biết Bắc Kinh từng tẩy chay các thủ tục tố tụng
và phủ nhận mọi thẩm quyền của Tòa trong trường hợp này. Đương nhiên, Tòa không
thừa nhận những tuyên bố chủ quyền đơn phương của Bắc Kinh đối với biển Đông. Bắc
Kinh đã nhiều lần lên tiếng bác bỏ mọi yêu sách của một số nước trong vùng, như
Phi Luật Tân, Mã Lai Á, Bruneï và Trung Hoa Dân Quốc.
Kết luận, Tòa Trọng tài Thường trực tại La Haye cho rằng
Tòa có đầy đủ thẩm quyền để phán xét những yêu
sách của chính phủ Manila viện dẫn Công Ước Liên Hiệp Quốc về Luật Biển. Tòa nói
rất rõ : Sự kiện Trung Cộng quyết định không tham gia vào
các buổi điều trần chẳng có ảnh hưởng gì đến thẩm quyền
Tòa hành sử trong vụ kiện này.
Tòa sẽ tổ chức tiếp những buổi điều trần kín sau Phán quyết
ngày hôm nay. Thời gian chưa được ấn định.
Đính kèm :
1 . Presse release .
ARBITRATION BETWEEN THE REPUBLIC OF THE PHILIPPINES AND THE PEOPLE’S
REPUBLIC OF CHINA
2 . Communiqué de presse . ARBITRAGE ENTRE LA REPUBLIQUE DES PHILIPPINES ET
LA REPUBLIQUE POPULAIRE DE CHINE
3 . Award
on Jurisdiction and Admissibility.
Xin được lưu ý : Chỉ
có Thông Cáo viết bằng tiếng Anh dưới đây và Phán Quyết (Award on Jurisdiction and Admissibility)
đính kèm mới được
coi là bản chính thức. Bản tiếng Pháp đính kèm (traduction non officielle) hay tiếng Hoa quan thoại
(UNOFFICIAL TRANSLATION /非官方翻译) chỉ là những bản dịch không chính thức của Tòa Trọng Tài Thường Trực La Haye, Hòa Lan.
**********************************************************************
The Hague, 29 October 2015
The Tribunal constituted under Annex VII to the United
Nations Convention on the Law of the Sea (the “Convention”) in the
arbitration instituted by the Republic of the Philippines against the People’s
Republic of China has issued its Award on Jurisdiction and Admissibility. This
arbitration concerns the role of “historic rights” and the source of maritime
entitlements in the South China Sea, the status of certain maritime features in
the South China Sea and the maritime entitlements they are capable of
generating, and the lawfulness of certain actions by China in the South China
Sea that are alleged by the Philippines to violate the Convention.
In light of limitations on the matters that can be
submitted to compulsory dispute settlement under the Convention, the
Philippines has emphasized that it is not requesting the Tribunal to decide the
question of sovereignty over maritime features in the South China Sea that are
claimed by both the Philippines and China. Nor has the Philippines requested
the Tribunal to delimit any maritime boundary between the two States. China has
repeatedly stated that “it will neither accept nor participate in the
arbitration unilaterally initiated by the Philippines.” China has, however,
made clear its view—in particular through the publication in December 2014 of a
“Position Paper of the Government of the People’s Republic of China on the
Matter of Jurisdiction in the South China Sea Arbitration Initiated by the
Republic of the Philippines” (“China’s Position Paper”)—that the
Tribunal lacks jurisdiction to consider the Philippines’ Submissions.
Under the Convention, an arbitral tribunal must satisfy
itself that it has jurisdiction to decide a matter presented to it, even if a
party chooses not to participate in the proceedings or to make a formal
objection. Accordingly, the Tribunal decided in April 2015 that it would treat
China’s Position Paper as effectively constituting a plea concerning the
Tribunal’s jurisdiction and convened a Hearing on Jurisdiction and
Admissibility that took place in The Hague on 7, 8 and 13 July 2015.
The Tribunal’s Award of today’s date is unanimous and concerns
only whether the Tribunal has jurisdiction to consider the Philippines’ claims
and whether such claims are admissible. The Award does not decide any aspect of
the merits of the Parties’ dispute. In its Award, the Tribunal has held that
both the Philippines and China are parties to the Convention and bound by its
provisions on the settlement of disputes. The Tribunal has also held that
China’s decision not to participate in these proceedings does not deprive the
Tribunal of jurisdiction and that the Philippines’ decision to commence
arbitration unilaterally was not an abuse of the Convention’s dispute
settlement procedures. Reviewing the claims submitted by the Philippines, the
Tribunal has rejected the argument set out in China’s Position Paper that the
Parties’ dispute is actually about sovereignty over the islands in the South
China Sea and therefore beyond the Tribunal’s jurisdiction. The Tribunal has
also rejected the argument set out in China’s Position Paper that the Parties’
dispute is actually about the delimitation of a maritime boundary between them
and therefore excluded from the Tribunal’s jurisdiction through a declaration
made by China in 2006. On the contrary, the Tribunal has held that each of the
Philippines’ Submissions reflect disputes between the two States concerning the
interpretation or application of the Convention. The Tribunal has also held
that no other States are indispensable to the proceedings.
Turning to the preconditions to the exercise of the
Tribunal’s jurisdiction set out in the Convention, the Tribunal has rejected
the argument in China’s Position Paper that the 2002 China–ASEAN Declaration on
the Conduct of Parties in the South China Sea constitutes an agreement to
resolve disputes relating to the South China Sea exclusively through
negotiation. On the contrary, the Tribunal has held that the China–ASEAN
Declaration was a political agreement that was not intended to be legally
binding and was therefore not relevant to the provisions in the Convention that
give priority to the resolution of disputes through any means agreed between
the Parties. The Tribunal has likewise held that certain other agreements and
joint statements by China and the Philippines do not preclude the Philippines
from seeking to resolve its dispute with China through the Convention. Further,
the Tribunal has held that the Philippines has met the Convention’s requirement
that the Parties exchange views regarding the settlement of their dispute and
has sought to negotiate with China to the extent required by the Convention and
general international law.
The Tribunal then considered the limitations and exceptions
set out in the Convention that preclude disputes relating to certain subjects
from being submitted to compulsory settlement. The Tribunal observed that
whether these limitations and exceptions would apply to the Philippines’ claims
was, in some cases, linked to the merits of the claims. For instance, whether
the Tribunal would have jurisdiction to address China’s claims to historic
rights in the South China Sea may depend upon the Tribunal’s assessment of the
nature of China’s claimed rights. Similarly, whether the Tribunal would have
jurisdiction to address Chinese activities in the South China Sea may depend
upon the Tribunal’s decision on whether any of the maritime features claimed by
China are islands capable of generating maritime zones overlapping those of the
Philippines. The Tribunal also noted that the location of certain activities
and the Convention’s exception for military activities may affect its
jurisdiction over certain of the Philippines’ claims
In light of the foregoing, the Tribunal has concluded that
it is presently able to decide that it does have jurisdiction with respect to
the matters raised in seven of the Philippines’ Submissions. The Tribunal has
concluded, however, that its jurisdiction with respect to seven other
Submissions by the Philippines will need to be considered in conjunction with
the merits. The Tribunal has requested the Philippines to clarify and narrow
one of its Submissions.
The Tribunal will convene a further hearing on the merits
of the Philippines’ claims. In consultation with the Parties, the Tribunal has
provisionally set the dates for the merits hearing. As with the Hearing on
Jurisdiction and Admissibility, the hearing on the merits will not be open to
the public, however the Tribunal will consider requests from interested States
to send small delegations of observers. The Permanent Court of Arbitration (the
“PCA”), which acts as Registry in the case, will issue further Press Releases
upon the commencement and closing of the merits hearing. The Tribunal expects
that it will render its Award on the merits and remaining jurisdictional issues
in 2016.
An expanded summary of the Tribunal’s reasoning is set out
below.
* * *
2 SUMMARY
OF THE AWARD ON JURISDICTION AND ADMISSIBILITY
- Background to the
Arbitration and to the Proceedings on Jurisdiction and Admissibility
This arbitration concerns an application by the Philippines
for rulings in respect of three inter-related matters concerning the
relationship between the Philippines and China in the South China Sea. First,
the Philippines seeks a ruling on the source of the Parties’ rights and
obligations in the South China Sea and the effect of the United Nations
Convention on the Law of the Sea on China’s claims to “historic rights” within
its so-called “nine-dash line”. Second, the Philippines seeks a ruling on
whether certain maritime features claimed by both China and the Philippines are
properly characterised as islands, rocks, low tide elevations or submerged
banks under the Convention. The status of these features under the Convention
may determine the maritime zones they are capable of generating. Finally, the
Philippines seeks rulings on whether certain Chinese activities in the South
China Sea have violated the Convention, by interfering with the exercise of the
Philippines’ sovereign rights and freedoms under the Convention or through
construction and fishing activities that have harmed the marine environment.
The Chinese Government has adhered to the position of
neither accepting nor participating in these arbitral proceedings. It has
reiterated this position in diplomatic notes, in public statements, in the
“Position Paper of the Government of the People’s Republic of China on the
Matter of Jurisdiction in the South China Sea Arbitration Initiated by the
Republic of the Philippines” dated 7 December 2014, and in two letters to
members of the Tribunal from the Chinese Ambassador to the Kingdom of the
Netherlands. The Chinese Government has also made clear that these statements
and documents “shall by no means be interpreted as China’s participation in the
arbitral proceeding in any form.”
Under the Convention, a tribunal constituted under Annex
VII has jurisdiction to consider a dispute between States Parties to the
Convention to the extent that the dispute involves the “interpretation or
application” of the Convention. However, the Convention excludes certain types
of disputes from the jurisdiction of a tribunal and includes certain
preconditions that must be met before any tribunal may exercise jurisdiction.
For reasons set out in Procedural Order No. 4 and explained
in the PCA’s Fourth Press Release in this matter, dated 22 April 2015,
available at http://www.pcacases.com/web/view/7,
the Tribunal considered the communications by China to constitute, in effect, a
plea that the Philippines’ Submissions fall outside the scope of the Tribunal’s
jurisdiction. Accordingly, the Tribunal conducted a hearing in July 2015 on the
scope of its jurisdiction and the admissibility of the Philippines’ claims.
The Tribunal also has a duty pursuant to Article 9 of Annex
VII to the Convention to satisfy itself that it has jurisdiction over the
dispute. Accordingly, the Tribunal made clear before and during the hearing
that it would consider possible issues of jurisdiction and admissibility
whether or not they were addressed in China’s Position Paper.
2. The Parties’ Positions
The Philippines’ has made 15 Submissions in these
proceedings, requesting the Tribunal to find that:
(1) China’s maritime entitlements in the South China Sea, like
those of the Philippines, may not extend beyond those permitted by the United
Nations Convention on the Law of the Sea (“UNCLOS” or the “Convention”);
(2) China’s claims to sovereign rights and
jurisdiction, and to “historic rights”, with respect to the maritime areas of
the South China Sea encompassed by the so-called “nine-dash line” are contrary
to the Convention and without lawful effect to the extent that they exceed the
geographic and substantive limits of China’s maritime entitlements under
UNCLOS;
(3) Scarborough Shoal generates no
entitlement to an exclusive economic zone or continental shelf;
(4) Mischief Reef, Second Thomas Shoal and
Subi Reef are low-tide elevations that do not generate entitlement to a
territorial sea, exclusive economic zone or continental shelf, and are not
features that are capable of appropriation by occupation or otherwise;
(5) Mischief Reef and Second Thomas Shoal
are part of the exclusive economic zone and continental shelf of the
Philippines;
(6) Gaven Reef and McKennan Reef
(including Hughes Reef) are low-tide elevations that do not generate
entitlement to a territorial sea, exclusive economic zone or continental shelf,
but their low-water line may be used to determine the baseline from which the
breadth of the territorial sea of Namyit and Sin Cowe, respectively, is
measured;
(7) Johnson Reef, Cuarteron Reef and Fiery
Cross Reef generate no entitlement to an exclusive economic zone or continental
shelf;
(8) China has unlawfully interfered with
the enjoyment and exercise of the sovereign rights of the Philippines with
respect to the living and non-living resources of its exclusive economic zone
and continental shelf;
(9) China has unlawfully failed to prevent
its nationals and vessels from exploiting the living resources in the exclusive
economic zone of the Philippines;
(10) China has unlawfully prevented
Philippine fishermen from pursuing their livelihoods by interfering with
traditional fishing activities at Scarborough Shoal;
(11) China has violated its obligations
under the Convention to protect and preserve the marine environment at
Scarborough Shoal and Second Thomas Shoal;
(12) China’s occupation and construction
activities on Mischief Reef
(a) violate the provisions of the
Convention concerning artificial islands, installations and structures;
(b) violate China’s duties to protect and
preserve the marine environment under the Convention; and
(c) constitute unlawful acts of attempted
appropriation in violation of the Convention;
(13) China has breached its obligations
under the Convention by operating its law enforcement vessels in a dangerous
manner causing serious risk of collision to Philippine vessels navigating in
the vicinity of Scarborough Shoal;
(14) Since the commencement of this
arbitration in January 2013, China has unlawfully aggravated and extended the
dispute by, among other things:
(a) interfering with the Philippines’
rights of navigation in the waters at, and adjacent to, Second Thomas Shoal;
(b) preventing the rotation and resupply
of Philippine personnel stationed at Second Thomas Shoal; and
(c) endangering the health and well-being
of Philippine personnel stationed at Second Thomas Shoal; and
(15) China shall desist from further
unlawful claims and activities.
With respect to jurisdiction, the Philippines has asked the
Tribunal to declare that the Philippines’ claims “are entirely within its
jurisdiction and are fully admissible.” The Philippines’ arguments on
jurisdiction, advanced during the July 2015 Hearing are summarised in the PCA’s
Sixth Press Release in this matter, dated 13 July 2015, available at http://www.pcacases.com/web/view/7.
China does not accept and is not participating in this
arbitration but has stated its position that the Tribunal “does not have
jurisdiction over this case.” In its “Position Paper of the Government of the
People’s Republic of China on the Matter of Jurisdiction in the South China Sea
Arbitration Initiated by the Republic of the Philippines” of December 2014,
China advanced the following arguments:
- The essence of the subject-matter of the
arbitration is the territorial sovereignty over several maritime features in
the South China Sea, which is beyond the scope of the Convention and does not
concern the interpretation or application of the Convention;
- China and the Philippines have agreed,
through bilateral instruments and the Declaration on the Conduct of Parties in
the South China Sea, to settle their relevant disputes through negotiations. By
unilaterally initiating the present arbitration, the Philippines has breached
its obligation under international law;
- Even assuming, arguendo, that the
subject-matter of the arbitration were concerned with the interpretation or
application of the Convention, that subject-matter would constitute an integral
part of maritime delimitation between the two countries, thus falling within
the scope of the declaration filed by China in 2006 in accordance with the
Convention, which excludes, inter alia, disputes concerning maritime
delimitation from compulsory arbitration and other compulsory dispute
settlement procedures;
3. The Tribunal’s Award
a. Preliminary Matters
In its Award, the Tribunal noted that both the Philippines
and China are parties to the Convention and that the provisions for the
settlement of disputes, including through arbitration, form an integral part of
the Convention. Although the Convention specifies certain limitations and
exceptions to the subject matter of the disputes that may be submitted to
compulsory settlement, it does not permit other reservations and a State may
not except itself generally from the Convention’s mechanism for the resolution
of disputes.
The Tribunal also noted China’s non-participation and held
that this fact does not deprive the Tribunal of Jurisdiction. Article 9 of
Annex VII to the Convention provides that:
Absence of a party or failure of a party
to defend its case shall not constitute a bar to the proceedings. Before making
its award, the arbitral tribunal must satisfy itself not only that it has jurisdiction
over the dispute but also that the claim is well founded in fact and in law.
Although China did not participate in the constitution of
the Tribunal, the Tribunal held that it had been properly constituted pursuant
to the provisions of Annex VII to the Convention. The Tribunal detailed the
steps it had taken to satisfy itself regarding its jurisdiction, including
through questions posed to the Philippines and through the Hearing on
Jurisdiction and Admissibility in July 2015. The Tribunal also recalled the
steps it had taken to safeguard the procedural rights of China, including by
ensuring that all communications and documents were delivered to China and that
China was accorded adequate notice and opportunity to comment and by
reiterating that it remains open to China to participate in the proceedings at
any stage. The Tribunal also recalled the steps it had taken to ensure that the
Philippines was not disadvantaged by China’s non-participation.
Finally, the Tribunal considered the argument set out in
China’s Position Paper that the Philippines’ unilateral resort to arbitration
constituted an abuse of the dispute settlement provisions of the Convention.
The Tribunal noted that, although certain provisions of the Convention address
the abuse of rights and provide a preliminary procedure to dismiss claims that
are facially unfounded, it was more appropriate to consider China’s concerns
about the Tribunal’s jurisdiction as a preliminary objection. The Tribunal also
noted that the mere act of unilaterally initiating an arbitration cannot
constitute an abuse of the Convention.
b. Existence of a Dispute Concerning Interpretation and
Application of the Convention
The Tribunal next considered whether there is a dispute
between the Parties concerning the interpretation or application of the
Convention, which is the basis for the dispute settlement mechanisms of the
Convention. In so doing, the Tribunal considered two objections set out in
China’s Position Paper: first, that the Parties’ dispute is actually about
sovereignty over the islands of the South China Sea and therefore not a matter
concerning the Convention and, second, that the Parties’ dispute is actually
about the delimitation of the maritime boundary between them and therefore
excluded from dispute settlement by an exception set out in the Convention that
States choose to activate. China activated the exception for disputes
concerning sea boundary delimitations when it made a declaration in 2006.
5 With respect to the former objection, the Tribunal noted
that there is a dispute between the Parties regarding sovereignty over islands
but held that the matters submitted to arbitration by the Philippines do not
concern sovereignty. The Tribunal considered it to be expected that the
Philippines and China would have disputes regarding multiple subjects and noted
that a decision on the claims presented by the Philippines would not require
the Tribunal to decide sovereignty, explicitly or implicitly, and did not
appear to be intended to advance the Philippines’ position with respect to
sovereignty. The Tribunal also emphasized that the Philippines had asked that
it not rule on sovereignty over the islands in the South China Sea.
With respect to the latter objection, the Tribunal noted
that a dispute concerning whether a State possesses an entitlement to a
maritime zone is a distinct matter from the delimitation of maritime zones in
an area in which they overlap. While a wide variety of issues are commonly
considered in the course of delimiting a maritime boundary, it does not follow
that a dispute over each of these issues is necessarily a dispute over boundary
delimitation. Accordingly, the Tribunal held that the claims presented by the
Philippines do not concern sea boundary delimitation and are not, therefore,
subject to the exception to the dispute settlement provisions of the
Convention. The Tribunal also emphasized that the Philippines had not asked it
to delimit any boundary.
Turning to the matters raised in the Philippines’
Submissions, the Tribunal reviewed the record to determine whether disputes
existed between the Parties at the time the Philippines commenced this
arbitration and whether such disputes concerned the interpretation and
application of the Convention. In so doing, the Tribunal noted that it was
necessary to address some ambiguity regarding China’s position on the matters
before it and recalled that the existence of a dispute may be inferred from the
conduct of a State, or from silence, and is a matter to be determined
objectively. The Tribunal considered that each of the Philippines’ claims
reflected a dispute concerning the Convention and noted in particular that a
dispute concerning the interaction between the Convention and other rights
(including any Chinese “historic rights”) is a dispute concerning the
Convention.
c. Involvement of Indispensable Third-Parties
Having identified the disputes presented by the
Philippines’ Submissions, the Tribunal considered whether the absence from this
arbitration of other States such as Viet Nam that have claims to the islands of
the South China Sea would be a bar to the Tribunal’s jurisdiction. The Tribunal
noted that this arbitration differs from past cases in which a court or
tribunal has found the involvement of a third-party to be indispensable.
Because the Tribunal will not rule on sovereignty, the rights of Viet Nam and
other States do not need to be determined before the Tribunal can proceed. The
Tribunal also recalled that, in December 2014, Viet Nam submitted a “Statement
of the Ministry of Foreign Affairs of Viet Nam” for the Tribunal’s attention,
in which Viet Nam asserted that it has “no doubt that the Tribunal has
jurisdiction in these proceedings.”
d. Preconditions to Jurisdiction
The Tribunal then considered the preconditions to
jurisdiction set out in the Convention. Although the dispute settlement
mechanism of the Convention provides for compulsory settlement, including
through arbitration, it also permits parties to agree on the settlement of
disputes through alternative means of their own choosing. Articles 281 and 282
of the Convention may prevent a State from making use of the mechanisms under
the Convention if they have already agreed to another means of dispute
resolution. Article 283 also requires the Parties to exchange views regarding
the settlement of their dispute before beginning arbitration.
The Tribunal considered the applicability of Articles 281
and 282 to the following instruments to determine whether the Parties had
agreed to another means of dispute settlement: (a) the 2002 China–ASEAN
Declaration on the Conduct of Parties in the South China Sea, (b) a series of
joint statements issued by the Philippines and China referring to the
resolution of disputes through negotiations, (c) the Treaty of Amity and
Cooperation in Southeast Asia, and (d) the Convention on Biological Diversity.
The Tribunal held that the 2002 China–ASEAN Declaration is a political
agreement and not legally binding, does not provide a mechanism for binding
settlement, and does not exclude other means of settlement. The Tribunal
reached the same conclusion with respect to the joint statements identified in
China’s Position Paper. With respect to the Treaty of Amity and Cooperation in
Southeast Asia and the Convention on Biological Diversity, the
sovereignty over islands but held that the matters
submitted to arbitration by the Philippines do not concern sovereignty. The
Tribunal considered it to be expected that the Philippines and China would have
disputes regarding multiple subjects and noted that a decision on the claims
presented by the Philippines would not require the Tribunal to decide
sovereignty, explicitly or implicitly, and did not appear to be intended to
advance the Philippines’ position with respect to sovereignty. The Tribunal
also emphasized that the Philippines had asked that it not rule on sovereignty
over the islands in the South China Sea.
With respect to the latter objection, the Tribunal noted
that a dispute concerning whether a State possesses an entitlement to a
maritime zone is a distinct matter from the delimitation of maritime zones in
an area in which they overlap. While a wide variety of issues are commonly
considered in the course of delimiting a maritime boundary, it does not follow
that a dispute over each of these issues is necessarily a dispute over boundary
delimitation. Accordingly, the Tribunal held that the claims presented by the
Philippines do not concern sea boundary delimitation and are not, therefore,
subject to the exception to the dispute settlement provisions of the
Convention. The Tribunal also emphasized that the Philippines had not asked it
to delimit any boundary.
Turning to the matters raised in the Philippines’
Submissions, the Tribunal reviewed the record to determine whether disputes
existed between the Parties at the time the Philippines commenced this
arbitration and whether such disputes concerned the interpretation and
application of the Convention. In so doing, the Tribunal noted that it was
necessary to address some ambiguity regarding China’s position on the matters
before it and recalled that the existence of a dispute may be inferred from the
conduct of a State, or from silence, and is a matter to be determined
objectively. The Tribunal considered that each of the Philippines’ claims
reflected a dispute concerning the Convention and noted in particular that a
dispute concerning the interaction between the Convention and other rights
(including any Chinese “historic rights”) is a dispute concerning the
Convention.
c. Involvement of Indispensable Third-Parties
Having identified the disputes presented by the
Philippines’ Submissions, the Tribunal considered whether the absence from this
arbitration of other States such as Viet Nam that have claims to the islands of
the South China Sea would be a bar to the Tribunal’s jurisdiction. The Tribunal
noted that this arbitration differs from past cases in which a court or
tribunal has found the involvement of a third-party to be indispensable. Because
the Tribunal will not rule on sovereignty, the rights of Viet Nam and other
States do not need to be determined before the Tribunal can proceed. The
Tribunal also recalled that, in December 2014, Viet Nam submitted a “Statement
of the Ministry of Foreign Affairs of Viet Nam” for the Tribunal’s attention,
in which Viet Nam asserted that it has “no doubt that the Tribunal has
jurisdiction in these proceedings.”
d. Preconditions to Jurisdiction
The Tribunal then considered the preconditions to
jurisdiction set out in the Convention. Although the dispute settlement
mechanism of the Convention provides for compulsory settlement, including
through arbitration, it also permits parties to agree on the settlement of
disputes through alternative means of their own choosing. Articles 281 and 282
of the Convention may prevent a State from making use of the mechanisms under
the Convention if they have already agreed to another means of dispute
resolution. Article 283 also requires the Parties to exchange views regarding
the settlement of their dispute before beginning arbitration.
The Tribunal considered the applicability of Articles 281
and 282 to the following instruments to determine whether the Parties had
agreed to another means of dispute settlement: (a) the 2002 China–ASEAN
Declaration on the Conduct of Parties in the South China Sea, (b) a series of
joint statements issued by the Philippines and China referring to the
resolution of disputes through negotiations, (c) the Treaty of Amity and
Cooperation in Southeast Asia, and (d) the Convention on Biological Diversity.
The Tribunal held that the 2002 China–ASEAN Declaration is a political
agreement and not legally binding, does not provide a mechanism for binding
settlement, and does not exclude other means of settlement. The Tribunal
reached the same conclusion with respect to the joint statements identified in
China’s Position Paper. With respect to the Treaty of Amity and Cooperation in
Southeast Asia and the Convention on Biological Diversity, the Tribunal noted
that both are legally binding agreements with their own procedures for
disputes, but that neither provides a binding mechanism and neither excludes
other procedures. Additionally, the Tribunal noted that although there is
overlap between the environmental provisions of the UN Convention on the Law of
the Sea and the Convention on Biological Diversity, this does not mean that a
dispute concerning one instrument is necessarily a dispute concerning the other
or that the environmental claims brought by the Philippines should instead be
considered under the framework of the Convention on Biological Diversity.
Accordingly, the Tribunal concluded that none of these instruments prevent the
Philippines from bringing its claims to arbitration.
With respect to the exchange of views on the settlement of
the dispute, the Tribunal held that Article 283 requires parties to exchange
views on the means of settling their dispute, not the substance of that dispute.
The Tribunal held that this requirement was met in the record of diplomatic
communications between the Philippines and China, in which the Philippines
expressed a clear preference for multilateral negotiations involving the other
States surrounding the South China Sea while China insisted that only bilateral
talks could be considered. The Tribunal also considered whether, independently
of Article 283, the Philippines was under an obligation to pursue negotiations
before resorting to arbitration. In this respect, the Tribunal held that the
Philippines had sought to negotiate with China and noted that it is well
established that international law does not require a State to continue
negotiations when it concludes that the possibility of a negotiated solution
has been exhausted.
e. Exceptions and Limitations to Jurisdiction
Finally, the Tribunal examined the subject matter
limitations to its jurisdiction set out in Articles 297 and 298 of the
Convention. Article 297 automatically limits the jurisdiction a tribunal may
exercise over disputes concerning marine scientific research or the living
resources of the exclusive economic zone. Article 298 provides for further
exceptions from compulsory settlement that a State may activate by declaration
for disputes concerning (a) sea boundary delimitations, (b) historic bays and
titles, (c) law enforcement activities, and (d) military activities. By
declaration on 25 August 2006, China activated all of these exceptions.
The Tribunal considered that the applicability of these
limitations and exceptions may depend upon certain aspects of the merits of the
Philippines’ claims:
(a) First, the Tribunal’s jurisdiction may depend upon the
nature and validity of any claim by China to “historic rights” in the South
China Sea and whether such rights are covered by the exclusion from
jurisdiction of “historic bays or titles.”
(b) Second, the Tribunal’s jurisdiction may depend upon the
status of certain maritime features in the South China Sea and whether the
Philippines and China possess overlapping entitlements to maritime zones in the
South China Sea. If so, the Tribunal may not be able to reach the merits of
certain claims because they would first require a delimitation of the
overlapping zones (which the Tribunal is not empowered to do).
(c) Third, the Tribunal’s jurisdiction may depend on the
maritime zone in which alleged Chinese law enforcement activities in fact took
place.
(d) Fourth, the Tribunal’s jurisdiction may depend upon
whether certain Chinese activities are military in nature.
Following the practice of other international courts and
tribunals, the Tribunal’s Rules of Procedure call for it to rule on objections
to jurisdiction as a preliminary matter, but permit the Tribunal to rule on
such objections in conjunction with the merits if the objection “does not
possess an exclusively preliminary character.” For the foregoing reasons, the
Tribunal concluded that it was presently able to rule that it has jurisdiction
over certain of the claims brought by the Philippines but that others were not
exclusively preliminary and would be deferred for further consideration in
conjunction with the merits.
f. Decisions of the Tribunal
In its Award, the Tribunal reached a number of unanimous
decisions. The Tribunal:
A. FINDS that the Tribunal was properly
constituted in accordance with Annex VII to the Convention.
B. FINDS that China’s non-appearance in
these proceedings does not deprive the Tribunal of jurisdiction.
C. FINDS that the Philippines’ act of
initiating this arbitration did not constitute an abuse of process.
D. FINDS that there is no indispensable
third party whose absence deprives the Tribunal of jurisdiction.
E. FINDS that the 2002 China–ASEAN
Declaration on Conduct of the Parties in the South China Sea, the joint statements
of the Parties referred to in paragraphs 231 to 232 of this Award, the Treaty
of Amity and Cooperation in Southeast Asia, and the Convention on Biological
Diversity, do not preclude, under Articles 281 or 282 of the Convention,
recourse to the compulsory dispute settlement procedures available under
Section 2 of Part XV of the Convention.
F. FINDS that the Parties have exchanged
views as required by Article 283 of the Convention.
G. FINDS that the Tribunal has
jurisdiction to consider the Philippines’ Submissions No. 3, 4, 6, 7, 10, 11,
and 13, subject to the conditions noted in paragraphs 400, 401, 403, 404, 407,
408, and 410 of this Award.
H. FINDS that a determination of whether
the Tribunal has jurisdiction to consider the Philippines’ Submissions No. 1,
2, 5, 8, 9, 12, and 14 would involve consideration of issues that do not
possess an exclusively preliminary character, and accordingly RESERVES
consideration of its jurisdiction to rule on Submissions No. 1, 2, 5, 8, 9, 12,
and 14 to the merits phase.
I. DIRECTS the Philippines to clarify the
content and narrow the scope of its Submission 15 and RESERVES consideration of
its jurisdiction over Submission No. 15 to the merits phase.
J. RESERVES for further consideration and
directions all issues not decided in this Award.
4. Next Steps
A further hearing will take place at the headquarters of
the Permanent Court of Arbitration in the Peace Palace in The Hague. The
hearing will provide an opportunity for the Parties to present oral arguments
and answer questions on the merits of the Philippines’ claims and any remaining
issues deferred from the jurisdictional phase. The hearing will not be open to
the public. However, as with the Hearing on Jurisdiction and Admissibility, and
after seeking the views of the Parties, the Tribunal will consider written
requests from interested States to send delegations to attend the hearing as
observers. Those States which sent observers to the Hearing on Jurisdiction and
Admissibility, namely Malaysia, the Republic of Indonesia, the Socialist
Republic of Viet Nam, the Kingdom of Thailand and Japan, will be informed of
the hearing dates. The Tribunal had already provisionally sought the views of
the Parties on the dates for the hearing and will shortly confirm the schedule.
The PCA will issue Press Releases upon the commencement and the closing of the
hearing.
* * *
The Tribunal in this matter is composed of Judge Thomas A.
Mensah of Ghana, Judge Jean-Pierre Cot of France, Judge Stanislaw Pawlak of
Poland, Professor Alfred Soons of the Netherlands, and Judge Rüdiger Wolfrum of
Germany. Judge Thomas A. Mensah serves as President of the Tribunal. The
Permanent Court of Arbitration acts as the Registry in the proceedings.
These arbitral proceedings were initiated on 22 January
2013 by the Republic of the Philippines.
On 30 March 2014, the Philippines submitted a Memorial
addressing both the merits of its claims and the Tribunal’s jurisdiction.
On 16 December 2014, after China did not submit a
Counter-Memorial by the date indicated by the Tribunal, the Tribunal requested
further written argument from the Philippines concerning certain issues of
jurisdiction and the merits.
On 16 March 2015, the Philippines filed a Supplemental
Written Submission, pursuant to the Tribunal’s request.
On 7, 8, and 13 July 2015, the Tribunal convened a Hearing
on Jurisdiction and Admissibility at the Peace Palace in The Hague, the
Netherlands.
Further information about the case, including the Award on Jurisdiction and Admissibility,
the Rules of Procedure, earlier Press Releases, and transcripts and photographs
of the Hearing on Jurisdiction and Admissibility, may be found at http://www.pcacases.com/web/view/7
or requested via e-mail.
* * *
Background to the PCA: The
Permanent Court of Arbitration is an intergovernmental organization established
by the 1899 Hague Convention on the Pacific Settlement of International
Disputes. Headquartered at the Peace Palace in The Hague, the Netherlands, the
Permanent Court of Arbitration facilitates arbitration, conciliation,
fact-finding and other dispute resolution proceedings among various
combinations of States, State entities, intergovernmental organizations, and
private parties.
Hearing on Jurisdiction and Admissibility
in session, July 2015, Peace Palace, The Hague. Clockwise from top left: Registrar and PCA
Senior Legal Counsel Judith Levine, Judge Stanislaw Pawlak, Prof. Alfred H. A.
Soons, Judge Thomas A. Mensah (Presiding Arbitrator), Judge Jean-Pierre Cot,
Judge Rüdiger Wolfrum, PCA Senior Legal Counsel Garth Schofield; Secretary for
Foreign Affairs of the Philippines, H.E. Mr. Albert F. Del Rosario; Agent for
the Philippines, Solicitor General Mr. Florin T. Hilbay, Counsel for the
Philippines, Mr. Paul Reichler, Prof. Philippe Sands, Prof. Bernard H. Oxman,
Prof. Alan E. Boyle, Mr. Lawrence Martin.
*******************************************************************************************************************************************
Genève ngày 29 tháng Mười
năm 2015
Liên Hội Nhân Quyền Việt Nam ở Thụy Sĩ
Ligue Vietnamienne des Droits de l'Homme en
Suisse
Vietnamese League for
Human Rights in Switzerland.
**********************************************
__._,_.___
