Bắc Kinh thất bại trên mặt trận Công Pháp Quốc Tế về Biển Đông

Bắc Kinh 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 xử 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.

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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.

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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.

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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.
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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.

Contact: Permanent Court of Arbitration, bureau@pca-cpa.org

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.

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