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Tribunal’s conduct serves as a case study of the dangers in delegating too much ill-defined juridical power to an unaccountable, non-democratic transnational institution

Case Study of Out-of-Control Transnational Adjudicative Body


By —— Bio and Archives--May 23, 2016

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Multilateral treaties have become a bedrock of international law, especially since the end of World War II. More than 600 multilateral treaties have been sponsored by the United Nations out of the approximately 8,000 multilateral treaties entered into since World War II. In setting out the parties’ rights and obligations, norms of behavior and dispute resolution mechanisms, carefully written treaties that have buy-in from the member countries can reduce the potential for resort to armed conflict or economic warfare. However, when a party to a multilateral treaty seeks to exploit perceived ambiguities to gain exclusive benefits beyond the intended scope of the underlying treaty, it is risking the legal and moral foundations on which multilateral treaties are based.

The compulsory arbitration provisions contained in the treaty known as the United Nations Convention on the Law of the Sea (UNCLOS) provide a case in point.

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UNCLOS establishes the legal framework under which coastal states can claim, manage, and utilize their ocean resources. It defines the maritime zones subject to jurisdiction of coastal states and governs the determination of the bases for delimitation of maritime boundaries.

UNCLOS sets forth an elaborate, multi-phased compulsory dispute resolution process to address the maritime issues within its scope. It stipulates that judgments rendered by the International Tribunal for the Law of the Sea or a specially constituted arbitral tribunal (both referred to in this article as “Arbitral Tribunal”) in accordance with the Convention are final and non-appealable. The process is subject to abuse by UNCLOS parties who seek to upend normal direct channels of diplomacy and negotiations to force a resolution of territorial disputes in their favor.

This article analyzes one example of abuse of UNCLOS’s compulsory dispute resolution process and the Arbitral Tribunal’s overreaching in accepting jurisdiction of a case. The Arbitral Tribunal decided to assume jurisdiction over a maritime territorial dispute between two UNCLOS parties, the Philippines and China. The Philippines had initiated the case despite China’s objection that the subject matter of the dispute was outside of the authority of the tribunal to arbitrate. A final decision on the merits of the Philippines’ case by the Arbitral Tribunal is expected soon.
Whatever the substantive outcome of the case turns out to be, most disturbing is that the Arbitral Tribunal determined it had legal authority to impose its will on a non-consenting party to a territorial dispute in the first place.

The United States is not currently a formal party to UNCLOS. Thus, it is not subject to its compulsory arbitration provisions. Joining UNCLOS has strong proponents, including President Obama, who believe that it will give the United States more moral standing to challenge actions in the South China Sea that it objects to. Even without the U.S. being an UNCLOS party, the Obama administration endorsed the Philippines’ compulsory arbitration case against China, a view shared by the New York Times in its May 21st editorial. However, U.S. foreign policymakers and opinion leaders should take heed before reflexively embracing compulsory arbitration provisions in multilateral treaties in the future. There are significant precedential implications to national sovereignty when an unaccountable international adjudicative body, which does not derive its legitimacy from the consent of the governed, is in a position to issue ultra vires decisions under the cloak of international law. The UNCLOS Arbitral Tribunal’s handling so far of the Philippines compulsory arbitration case against China should serve as a warning.

UNCLOS Dispute Resolution Procedures

The preamble of UNCLOS states that its establishment of a “legal order for the seas and oceans” must be “with due regard for the sovereignty of all States.” UNCLOS lays out a multi-pronged dispute resolution process, which it is reasonable for the parties to expect would be implemented “with due regard for the sovereignty of all States.”

Direct bilateral negotiations and consultations are listed as the first level of dispute resolution. The parties can then move to the option of non-binding conciliation. The process of conciliation involves the use of one or more neutral third parties who meet with each of the disputants separately and try to narrow the differences between them through communication of successive proposals and counter-proposals from the parties. The conciliators may also come up with their own proposed solution for consideration by the disputants.

Compulsory arbitration is the final and most extreme form of dispute resolution that an aggrieved UNCLOS party can seek to utilize against the other party to the dispute. It is to occur after other procedures have been exhausted and is subject to the right of the other party to the dispute to opt out of compulsory arbitration under specified circumstances.

Article 298 of UNCLOS explicitly gives Convention state parties the right to opt out of compulsory arbitration for disputes concerning, among other things, the interpretation or application of certain provisions of the Convention “relating to sea boundary delimitations, or those involving historic bays or titles.” (Article 298, 1 (a)(i))

UNCLOS Arbitral Tribunal Overstepped the Bounds of its Authority in not Honoring China’s Opt-Out from Compulsory Arbitration

Both China and the Philippines referenced the compulsory arbitration opt-out provisions of Article 298 when they entered into UNCLOS as Convention parties.

Nevertheless, in order to gain leverage in a dispute over territorial boundaries in the South China Sea, the Philippines unilaterally initiated compulsory arbitration proceedings in 2013 against China before the Convention’s Arbitral Tribunal. Although China acted within its rights to reject the jurisdiction of the Arbitral Tribunal, based on its exercise of its Article 298 opt-out rights, the tribunal acted like many transnational bureaucracies do in seeking to expand its authority over sovereign states. It decided to accept jurisdiction over what is essentially a territorial dispute.

When China ratified UNCLOS in 1996, it included the following declaration as part of its accession to the Convention: “The People’s Republic of China reaffirms its sovereignty over all its archipelagos and islands as listed in article 2 of the Law of the People’s Republic of China on the territorial sea and the contiguous zone, which was promulgated on 25 February 1992.”

Thus, in entering UNCLOS as a Convention party, China made clear that it was not waiving its pre-existing claims to land and maritime territorial rights, which it believed to be preserved under customary international law, within demarcated areas of the semi-enclosed waters of the South China Sea.

In 2006, China invoked Article 298 in declaring that it “does not accept any of the procedures provided for in Section 2 of Part XV of the Convention with respect to all the categories of disputes referred to in paragraph 1 (a) (b) and (c) of Article 298 of the Convention.”

For its part, the Philippines stated in its own declarations accompanying its signing and ratification of the Convention that such “signing shall not in any manner impair or prejudice the sovereignty of the Republic of the Philippines over any territory over which it exercises sovereign authority, such as the Kalayaan Islands, and the waters appurtenant thereto.” It also declared that its agreement for peaceful resolution of disputes under Article 298 of the Convention “shall not be considered as a derogation of Philippines sovereignty.”

When it served its purpose upon becoming a party to UNCLOS, the Philippines asserted its own “sovereign” claims based on alleged historic rights that it considered non-derogable. However, when it later served the Philippines’ purpose to use UNCLOS’s compulsory arbitration provisions to negate China’s sovereign claims based on its alleged historic rights, the Philippines completely reversed itself on its previously stated principles. The Philippines stated the following in its submission with the Arbitral Tribunal, contradicting its original self-serving UNCLOS accession declaration: “UNCLOS supersedes and nullifies any ‘historic rights’ that may have existed prior to the Convention.”

Under international law, the Philippines should be estopped from using UNCLOS’s compulsory dispute resolution procedures to deny China the same right to protect its sovereignty rights as the Philippines had for all intents and purposes asserted for itself when it joined UNCLOS. The Arbitral Tribunal erred when it deferred instead to the Philippines’ current turn-about of position in order to justify its acceptance of the Philippines’ case for compulsory arbitration.

The Arbitral Tribunal attempted some fancy footwork in its jurisdiction opinion by claiming that it could make its determination of entitlements to exclusive economic zones, territorial sea rights and continental shelves as the Philippines had requested without having to deal with any dispute over sea boundary delimitations or overlapping claims of territorial sovereignty. The tribunal got it wrong. The issues of historical claims to territorial sovereignty, maritime boundary delimitation and overlapping exclusive economic zones and continental shelves they may generate are inextricably linked with the issues that the tribunal accepted jurisdiction to decide. The Arbitral Tribunal exceeded the limits of its authority in accepting jurisdiction of the Philippines’ compulsory arbitration case by pretending that it could decide certain maritime zone entitlements claims in isolation.
Arbitral Tribunal Overstepped the Bounds of its Authority in Applying UNCLOS to Territorial Claims that Pre-Existed and are Outside the Scope of UNCLOS

The Arbitral Tribunal also erred in its jurisdiction opinion when it concluded that the dispute before it was simply about application or interpretation of the Convention. The tribunal reached this conclusion on the fallacious assumption that the dispute concerned “the interaction of the Convention with another instrument or body of law, including the question of whether rights arising under another body of law were or were not preserved by the Convention.”

The history of the competing sovereign claims preceded the very existence of UNCLOS. Article 15 of UNCLOS preserves the relevance of “historic title or other special circumstances” that may be at variance with other UNCLOS provisions. By definition, UNCLOS does not apply to the central issues in dispute between China and the Philippines.

The preamble of UNCLOS states that its establishment of a “legal order for the seas and oceans” must be “with due regard for the sovereignty of all States.” The Convention parties thereby evidenced their intent that UNCLOS does not extinguish their historic usage-based sovereignty claims unless expressly countermanded in the text of the Convention. There is no such express agreement of the parties to revoke their specific historical sovereign claims. To the contrary, as described above, both China and the Philippines made clear their very opposite intentions in their respective UNCLOS declarations. Moreover, under the principle of “non-retroactivity of treaties” enshrined in the Vienna Convention on the Law of Treaties adopted in 1969, UNCLOS, which came into force subsequently, cannot be used to retroactively defeat either party’s sovereign claims unless both parties agree to accept the decision of the Arbitral Tribunal as final and binding. China has not given its consent.

China argues it has historical rights to islands and adjacent areas within the South China Sea, originally derived from fishing activities undertaken consistently for many centuries. China claims it was the first country to discover, name, develop and manage the South China Sea islands, and was also the first to continuously exercise sovereign jurisdiction over them. Nearly seven decades ago, China published a map depicting segments (dashes) encircling waters, islands, and other features of the South China Sea as to which China has asserted historic territorial and maritime rights.
With some slight revisions, China has since re-published this map and continues to assert its sovereign rights.

The Philippines has also claimed sovereign territorial and maritime rights in areas that overlap China’s claims, beginning in earnest in the early 1970’s when oil was discovered.

Whatever the merits of the competing historical claims may be, they both precede the very existence of UNCLOS and were not expressly revoked when UNCLOS came into effect. Thus, sovereignty disputes over certain islands and adjacent waters based on competing historical claims lie outside of the jurisdiction of the UNCLOS Arbitral Tribunal to adjudicate.

Yet in accepting jurisdiction of the Philippines’ case, the tribunal stated that any dispute regarding China’s claim to historic rights in the South China Sea was “a dispute concerning the interpretation and application of the Convention” and could be deferred until the tribunal’s decision on the merits of the case. It admitted that its “jurisdiction to consider this question…would be dependent on the nature of any such historic rights and whether they are covered by the exclusion from jurisdiction over ‘historic bays or titles’ in Article 298.” However, the tribunal then stated, “The nature and validity of any historic rights claimed by China is a merits determination.”

The tribunal engaged in circular reasoning by deferring the threshold question as to whether it had jurisdiction to decide China’s claim to historic rights in the South China Sea to the merits phase, which it can only reach if it had jurisdiction in the first place. To paraphrase Alice-in-Wonderland, the tribunal believes in a decision on the merits first – jurisdiction afterwards.

UNCLOS Arbitral Panel Short-Circuited Diplomacy

By accepting jurisdiction to decide the case, .the tribunal also went along with the Philippines’ scheme to bypass the bilateral negotiation process the Philippines and China had previously committed to on various occasions. The commitment is documented in a series of bilateral agreements, joint statements of the leaders of both countries, and a multilateral Declaration on the Conduct of Parties in the South China Sea signed by China and the members of ASEAN, including the Philippines, in 2002.

Even after the Philippines had filed its case for compulsory arbitration, the Philippines submitted a plan to the United Nations outlining a three stage approach to dispute resolution in which arbitration would be the “final approach.” It identified implementation of the Declaration and negotiation of a binding regional code of conduct for the disputed waters as the earlier stages. But to justify the fact that it had already filed its compulsory arbitration case while regional diplomatic efforts on the first two stages of its own plan were still ongoing, the Philippines made the illogical claim that all three stages could be pursued simultaneously. The unintended consequence of creating a winner and loser in a compulsory arbitration case, particularly if the losing party had not consented to the tribunal’s jurisdiction in the first place, will likely serve to harden both parties’ negotiating positions and place a diplomatic solution further out of reach. 

Conclusion

For all the reasons discussed in this article, the UNCLOS Arbitral Tribunal acted arbitrarily and capriciously when it granted the Philippines’ request to accept jurisdiction of the Philippines’ compulsory arbitration case against China. This article analyzed how the tribunal aggrandized itself at the expense of national sovereignty. The tribunal’s conduct serves as a case study of the dangers in delegating too much ill-defined juridical power to an unaccountable, non-democratic transnational institution, which begins to take on a life of its own. Its assertion of compulsory governance powers undermines diplomacy and negotiated dispute resolution among the member states, who were parties to the treaty that gave birth to the transnational institution to begin with. Instead, it serves its own parochial interests in building up its power as a fixture of supranational governance.


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Joseph A. Klein, CFP United Nations Columnist -- Bio and Archives | Comments

Joseph A. Klein is the author of Global Deception: The UN’s Stealth Assault on America’s Freedom.


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