The Philippines' all or nothing bet on jurisdiction

my Trade Tripper column in this 24-25 July 2015 weekend issue of BusinessWorld:

Offhand, it can be said that we were brought to this situation by a series of serendipitous recent events. If it weren’t for a coastal vessel that got rammed through, if it weren’t for an International Court of Justice (ICJ) ruling defining and characterizing islands, if it weren’t for the personal peculiarities of two presidents, if it weren’t for China’s uncertain economic foundations, if it weren’t for ASEAN’s dysfunctional unity, and a whole lot more, we wouldn’t be in this conundrum we are in right now where a “victory” is a problem that necessitates careful planning.

Not that “victory” could be even easily defined. Ultimately, the Philippine case isn’t even about determining who owns the disputed territories but rather about definitions: what exactly is the nine-dash line, and what are the legal implications of certain islands that stand above the tides and whether the same could sustain habitation or not.

But for now, that is not even the main concern. It is jurisdiction. Because in international law, generally speaking (though I am unaware for the moment of exceptions, except perhaps for peace and security issues), no country can be made to submit to the jurisdiction of a tribunal without its consent. And the simple reason for this is that oft-mentioned but frequently misunderstood concept of “sovereignty.”

Both the Philippines and China, of course, are signatories to the 1984 United Nations Convention on the Law of the Sea (UNCLOS). And normally any dispute arising from the provisions of the UNCLOS would be referred to the International Tribunal for the Law of the Sea (ITLOS), which has jurisdiction over all disputes and all applications submitted to it in accordance with the convention. It also includes all matters specifically provided for in any other agreement that confers jurisdiction on the tribunal.

But as everybody knows, China has decided not to place itself under the jurisdiction of the UNCLOS dispute system when it made the following declaration upon joining the 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 UN Security Council 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.

The Philippines, accordingly, is relying Section 2 of Part XV, Article 286 of the UNCLOS, which in substance provides for instances where States dispute the interpretation of a certain provision of the UNCLOS and they cannot come to an agreement on the matter. One State can then unilaterally submit the issue before a court or arbitral tribunal for determination. Now this has been posited as the “compulsory dispute settlement system” under the UNCLOS.

The phrase “compulsory dispute settlement procedures” is admittedly a misleading term that has confused a lot of people. Article 287 allows States four dispute settlement options. Two are arbitration procedures: under Annex VII, and “special” arbitration under Annex VIII. Two are adjudication procedures: before the ICJ, and before ITLOS.

This is generally thought to be understood as 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). This presupposes, however, 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 have refused our invitation to bring the matter to dispute settlement under UNCLOS rules.

Anyway, the tribunal members having been selected, its first order of business was to designate the Permanent Court of Arbitration, and adopt its rules of procedure.

In the end, the fate of the Philippine claim is irrevocably now in the hands of a Ghanaian, a German, a Pole, a Frenchman, a Dutchman, and Americans.

And I really don’t think anybody in The Hague was remotely impressed by our 35-man (some reports say 60) delegation “show of force.”