A Rising Tide: Law of the Sea Disputes in Asia and Arbitration
Leo Bernard & Michael Ewing-Chow
Asian Dispute Review (July 2014)
This article discusses the resolution of maritime boundary-related disputes by adjudication before international arbitral tribunals under the UN Convention on the Law of the Sea 1982 (UNCLOS). It focuses on pending arbitration proceedings between China and the Philippines over the activities that UNCLOS member State claimants to the Spratly and Paracel island chains in the South China Sea can undertake in accordance with UNCLOS and the difficulties arising from China’s refusal to participate in the proceedings.
The below paragraphs are extracted from the full article at LeonardoBernard_A Rising Tide: Law of the Sea Disputes in Asia and Arbitration [PDF]
The Philippines submitted their memorial on 30 April 2014. If China still refuses to participate and to provide any responses, then the tribunal may issue a jurisdictional decision as early as next year. If the tribunal finds that it has jurisdiction to hear the case, the award it issues will be legally binding on both China and the Philippines.
The award, however, would not resolve the disputes in the South China Sea. The tribunal’s decision would not resolve the underlying dispute concerning which State has sovereignty over the disputed islands since, as previously mentioned, this issue is not governed by UNCLOS and thus is not within the jurisdiction of the tribunal. Furthermore, the award also would not resolve the issue of how to determine the maritime boundaries in any areas of overlapping claims. This is because disputes on the delimitation of maritime boundaries are outside the jurisdiction of the tribunal. Moreover, the award would not consider the positions of the other claimants in the South China Sea, as it would only be binding on the Philippines and China. However, if the tribunal in its award chose to clarify that China cannot make claims to maritime space based on the nine-dash line, this would be important not only for the Philippines but also for the other claimants. This would force China to make maritime claims from land territory and islands in accordance with UNCLOS and international law, which is what the Philippines and all other claimants have to date based their claims on (except for Taiwan, which has similar claims to China).
If China failed to implement the award, or were to take action contrary to it, the Philippines would have the right to go back to the same tribunal and request further orders regarding implementation of the award. On the other hand, if China chose to ignore the award, significant political pressure might be brought to bear on it by the international community. This happened to the US after the Nicaragua case and to Russia in the Arctic Sunrise case. China’s reluctance to subject itself to the jurisdiction of international courts and tribunals (except on trade and economic issues) stands in contrast with the general trend in Asia, in which more and more States are showing willingness to settle disputes between them through international legal binding adjudication. The following examples are illustrative.
Myanmar accepted binding adjudication over its dispute with Bangladesh when the latter unilaterally brought their maritime boundaries dispute before ITLOS. The decision of the tribunal in that case was well received by the parties and both have finalised their maritime boundaries on the basis of the judgment, which was issued in 2012.
Bangladesh is now in the middle of arbitration proceedings against India to settle their maritime boundaries, after invoking the same compulsory dispute settlement mechanism under UNCLOS.
Timor Leste (East Timor) instituted an arbitration proceeding against Australia in 2013 on disputes in relation to the Timor Sea Treaty. Timor Leste also invoked the compulsory jurisdiction of the ICJ to issue provisional measures against Australia when Australian agents seized documents and data from the legal advisor of Timor Leste in connection with the Timor Sea arbitration case.
In a 2011 land territorial dispute, Cambodia requested the ICJ to interpret the judgment the Court had issued in 1962 in awarding the Temple of Preah Vihear to Cambodia, and asked the Court to clarify whether Cambodia or Thailand had sovereignty over the land area in the vicinity of the temple.
The ICJ issued a judgment in 2013 declaring that Cambodia has sovereignty to the whole area surrounding the temple and that Thailand should withdraw their forces from the vicinity of the temple.
Malaysia and Indonesia brought their sovereignty dispute over Sipadan and Ligitan islands to the ICJ, which judgment was handed down in 2002.
Malaysia and Singapore settled their sovereignty dispute over Pedra Branca after the ICJ handed down its judgment on the matter in 2008.
Claimant States other than China in the South China Sea disputes have also, on numerous occasions, indicated their willingness to consider settling their disputes through legal binding adjudication.
These cases follow the growing trend of Asian countries to settle sovereignty related disputes through international adjudication. All of this suggests that such international adjudications and arbitrations are probably only the beginning of a rising tide of disputes that will be brought before independent third party adjudicators for legally binding settlement. This is, of course, preferable as it is a peaceful method of dispute resolution.
For more details of the analysis, read the full article at LeonardoBernard_A Rising Tide: Law of the Sea Disputes in Asia and Arbitration [PDF]