ITLOS'ing China

is the subject of my Trade Tripper column in last Friday-Saturday's issue of BusinessWorld:

As much as we’d like to settle China’s territory recognition disorder problem, there are certain things that simply can’t be done. The complexity of the International Tribunal for the Law of the Sea (ITLOS) dispute settlement system requires China to accept our proposal to elevate the case to the ITLOS. Unlike domestic tribunals which can acquire jurisdiction by mere service of summons, international tribunals operate within the constraints of state sovereignty.

In other words, the only way an international tribunal can have jurisdiction over the case is if the state parties to the dispute actually give their consent to be subjected to such jurisdiction. And China pointedly rejected the jurisdiction of the ITLOS when it made the following declaration upon joining the United Nations Convention on the Law of the Sea (UNCLOS): "The Government of the People’s Republic of China 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."

China’s reference to Article 298 means that "it does not accept any one or more of the procedures provided for in section 2 with respect to one or more of the following categories of disputes": disputes concerning the interpretation or application of articles 15, 74, and 83 relating to sea boundary delimitations, or those involving historic bays or titles; disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service, and disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction excluded from the jurisdiction of a court or tribunal under article 297; and disputes in respect of which the Security Council of the United Nations is exercising its authorized functions, unless the Security Council decides to remove the matter from its agenda or calls upon the parties to settle it by the means provided for in the UNCLOS.

It is pointless to say that the Philippines can go to the ITLOS by not asking for the settlement of the territorial dispute but merely to resolve maritime issues involving the waters under Philippine jurisdiction. This is because, as alluded to above, the Chinese rejection already covered even that: Article 15 (on the delimitation of the territorial sea between opposing or adjacent coastal states); Article 74 (on the delimitation of the exclusive economic zone between such coastal states), and Article 83 (regarding the delimitation of the continental shelf again between said coastal states). All three articles fall under Article 298, paragraph 1.a referred to by the Chinese in its declaration.

The phrase "compulsory dispute settlement procedures" is admittedly a misleading term which has confused a lot of people. It is compulsory because it refers a dispute to arbitration as the mandatory mode of settling a dispute whenever the parties have not come to an agreement as to what mode they have selected (the choices are the ICJ, ITLOS, or arbitration). But this presupposes that the parties already agreed to bring the matter to dispute settlement. Because despite the words "compulsory" or "mandatory", the UNCLOS dispute procedure is still consensual in nature. As we know already, the Chinese has refused our invitation to bring the matter to dispute settlement under UNCLOS rules.

Arguably, there are possible areas where a "compulsory" or a unilateral claim being made before the ITLOS could plausibly be argued. These are those circumstances falling under Article 297, paragraph 1.c (i.e., "the protection and preservation of the marine environment") or paragraph 3.a (i.e., "fisheries"). However, the same is not recommended, being fraught with risks because a) it could potentially subject the Philippines to an embarrassing international loss before an international tribunal due to ignorance of international law, with the residual effect of weakening our claim over the areas; and b) it makes our DFA officials and the rest of government look as if they’ve been remiss in their duties when actually they cannot proceed under ITLOS rules because of China’s refusal. It also makes the country look like it’s been sleeping on its rights, perhaps even estopped, if this were true when clearly it’s not. Even calls for bringing China to ITLOS for conciliation is misplaced because even at that level we still need China’s consent. After all, even assuming we could properly unilaterally bring the case to ITLOS, if China insists in refusing to join us there, we would have no recourse to address such situation as contempt measures or injunctions could not imaginably be issued and enforced against China.

In this regard, like the ICJ or the GATT dispute system before the WTO, the fount of knowledge for the ITLOS dispute settlement system is the Registrar, for which it is recommended that it be consulted, not on whether a case could be filed (the provisions itself are controlling), but merely as to their opinion. It must also be considered that China has a sitting member in the ITLOS: Zhiguo Gao. We don’t.