Art 2navigating Through Narrow Jurisdictional Straits - The Philippines - PRC South China Sea Dispute and UNCLOS

MARTINUS
NIJHOFF The Law and Practice of

PUBLISHERS ¡ntemational Courts and Tribunals 12 (2013) 431-461
Navigating Through Narrow Jurisdictional Straits:

The Philippines - PRC South China Sea Dispute
and UNCLOS
Professor Dr. Andreas Zimmermann

LLM. (Harvard)
Jelena Bäumler, LLM.

(Cape Town)
Abstract
In January 2013 tbe Pbilippines invoked tbe dispute settlement system under UNCLOS in order to
resolve its long standing dispute witb tbe People's Republic of Cbina over tbe Soutb Cbina Sea
and more specifically concerning Scarborougb Sboal and tbe Spratly Islands. Tbe arbitral tribunal
constituted under Annex Vll UNCLOS, witbout tbe PRC taking part in tbe proceedings as of yet,
faces a cballenging task in deciding wbetber or not it bas jurisdiction over tbe case submitted by
tbe Pbilippines. Tbis article tberefore examines tbe dispute settlement system of UNCLOS witb
regard to tbe Jurisdiction of tbe tribunal in tbe pending Pbilippines - PRC Soutb Cbina Sea dis-
pute. Wbile at first glance UNCLOS appears to provide for a comprebensive system of compulsory
jurisdiction, a number of exceptions, eitber applicable ipsofacto or by virtue of unilateral declara-
tions made at tbe time of signature or ratification of UNCLOS, leave only a tbin layer ofjurisdic-
tional grounds, if any at all, for tbe arbitral tribunal to deal witb and eventually decide tbe Soutb
Cbina Sea dispute between tbe Pbilippines and tbe PRC. Tbis implies tbat tbe arbitral tribunal is
facing intriguing legal questions in tbis bigbly political procedure, tbe relevance of wbicb extends
far beyond tbe case at band.
Keywords
UNCLOS; Annex VII; arbitral tribunal; jurisdiction; Soutb Cbina Sea; Scarborougb Sboal and
Spratly Islands; non-participation; bistoric titles
1. Introduction
The South China Sea constitutes one of the most contested areas of the
earth's surface of today. It is located in the Pacific Ocean south of the Peo-
ple's Republic of China (PRC) and the "Republic of China" (Taiwan), west of
the Phflippines and north of Malaysia, Vietnam and Brunei. Afl those States,
Í3 Koninklijke Brill NV, Leiden, 2013 1)01:1Ü.U63/15718034-12341266

Zimmermann and Bäumler /
432 The Law and Practice oflntemational Gourts and Tribunals ¡2 (2013) 431-467
as well as Taiwan, claim sovereignty over parts of tbis area, or, in the case of
tbe PRC, virtually tbe entire Sea, including its over one bundred rocks and
islands.' Tbe importance of tbe area not only results from its rieb fishing
grounds, but also from its relevance for sbipping from Soutb East Asia to
tbe PRC^ and, perbaps even foremost, from its presumed rich oil and gas
resources.^ It is especially between tbe PRC and tbe Pbilippines tbat tbe
situation tbreatened to escalate after a number of incidents occurred on
botb sides after 2011.
Tbe obligation to peacefully settle international disputes constitutes a
major principle of international law and is indeed mandated by botb tbe
Cbarter of tbe United Nations in its Article 2 paragrapb 3 and Article 33,
as well as by Part XV of tbe United Nations Convention on tbe Law of tbe
Sea (UNCLOS). Since botb parties bave been unable to resolve tbe dispute
in bilateral negotiations in the past, as a matter of principle, tbe Pbilip-
pines' options have been either to consider starting proceedings before tbe
International Court ofJustice (ICj), whicb has in its bistory dealt with quite
a number of disputes centred around tbe law of tbe sea,"* or to invoke tbe
" Approximately 160 features are to be found in the South China Sea, an area of around 240,000
square meters, Robert W. Smith, "Maritime Delimitation in the South China Sea: Potentiality and
Challenges", 41 Ocean Devetopment & ¡ntemationat Law (2010), 214, 215.
^' In fact, it is estimated that "half of the world's shipping passes through the South China
Sea", http://nation.time.com/2o12/o7/15ythe-south-china-sea-from-bad-to-worse/ (last accessed
31.07.2013).
^' Choon-ho Park, "The South China Sea Disputes: Who Owns the Islands and Natural Resources?",
1 Oeean Devetopment & ¡ntemationat Law (1978), 27; the U.S. Energy Information Administration
estimates less resources in the contested areas of Spratly and Paracel Islands, "U.S. Energy Infor-
mation Administration, Contested areas of South China Sea likely have few conventional oil and
gas resources", 3 April 2013, available at: http://www.eia.gov/todayinenergy/detail.cfni?id=io65i
(last accessed 31.07.2013).
'" Already the PCIJ in the S.S. Wimbledon Case (United Kingdom v. Germany), PCIJ (1923), (ser.
A), No. 28; the ICJ e.g. in Corfii Channel Case (United Kingdom v. Albania), ICJ Reports (1949)
244; North Sea Continental Shetf Case, ICJ Reports (1969) 3; Continental Shelf {Tunisia v. Libyan
Arab Jamahiriya), ICJ Reports (1982) 18; Delimitation ofthe Maritime Boundary in the GulfofMaine
Area (Canada v. United States of America), ICJ Reports (1984) 246; Continental Shetf {Libyan Arab
Jamahiriya v. Malta), Judgment, ICJ Reports (1985) 1; Maritime Delimitation and Territorial Ques-
tions between Qatar and Balirain (Qatar v. Bahrain), ICJ Reports (2001) 40; Land and Maritime
Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening),
ICJ Reports (2002) 303; Maritime Delimitation between Nicaragua and Honduras in the Caribbean
Sea (Niearagua v. Honduras), ICJ Reports (2007) 659; Sovereignty over Pedra Branea /Putau Batu
Puteh, Middle Rocks and South Ledge (Malaysia v. Singapore), ICJ Reports (2008) 12; Maritime
Delimitation in the BlaekSea (Romania v. Ukraine), ICJ Reports (2009) 61; Territorial and Maritime
Dispute (Nicaragua v. Colomhia), ICJ Reports (2012), 19 November 2012.
The Law andPractice oflntemational Courts and Tribunals 12 (2013) 431-461 433
mechanism of compulsory jurisdiction under UNCLOS that was ratified by

the Philippines in 1984 and the PRC in 1996.^
Yet, already at first glance, it is obvious that the ICJ would have had no
jurisdiction over the dispute. For one, the PRC has not accepted the com-
pulsory jurisdiction of the Court. The Philippines, in turn, itself excluded
the Court's jurisdiction for these kinds of disputes in its declaration under
Article 36 paragraph 2 ICJ Statute filed with the Secretary General of the
United Nations in 1972, accepting the ICJ's jurisdiction except for, inter alia,
disputes "arising out of or concerningjurisdiction or rights claimed or exer-
cised by the Philippines (...) (ii) in respect of the territory of the Republic
of the Philippines, including its territorial seas and inland waters".'' What
is more noteworthy is that there is no relevant treaty to which both the
PRC and the PhiUppines are parties that contains a compromissory clause
providing for the Court's Jurisdiction under Article 36 paragraph 1 ICJ Stat-
ute. And, to say the least, it could have not been expected that the PRC,
upon the invitation of the Philippines, would have agreed to the ICJ exer-
cising Jurisdiction under the concept of forum prorogatum, as laid dovra in
Article 38 paragraph 5 of the ICJ's Rules of Court.^ Indeed, the PRC's stance
so far at least on the Philippines' request for arbitration under Annex VII
UNCLOS^ confirms the PRC's principled position against any form of bind-
ing third-party dispute settlement.
IL UNCLOS and the Philippines - PRC South China Sea Dispute

Given the evident lack of Jurisdiction of the ICJ on the matter, it was on
22 January 2013 that the Philippines thus requested the setting-up of an arbi-
tral tribunal under Annex VII UNCLOS. Unlike with regard to the ICJ, where.
^' The Convention only entered into force in 1994, a year after Guyana as the 60th State had
ratified it in accordance with Art. 308 paragraph 1 UNCLOS; see http://vvrww.un.org/depts/los/
LEGISLATIONANDTREATIES/status.htm (last accessed 30.07.2013).
^' See Philippines Declaration of 18January 1972, available at: bttp://www.icj-cij.org/jurisdiction/
index.php?pi=5&p2=i&p3=3&code=PH (last accessed 21.10.2013).
'•I Such an attempt has only proven successful twice so far in the Court's history, namely in the
Case eoneeming Certain Criminal Proceedings in France (Republic of the Congo v. France), ICJ
Reports (2003) 102 and in the Case eoneeming Certain Questions of Mutual Assistanee in Criminal
Matters (Djibouti v. France), ICJ Reports (2008) 177.
8) See ¡n/ra ILA.
Zimmermann and Bäumter /
434 The Law and Practtce of ¡ntemationat Courts and Tribunats 72 (2013) 431-461
already primafacie, tbe Court would bave bad no jurisdiction, tbe same
does not bold true witb regard to tbe relevant provisions of UNCLOS.
UNCLOS' system for tbe settlement of disputes is complex.^ Altbougb
it is compulsory in nature as a matter of principle,'" it is based on tbree
aspects tbat nevertbeless leave room for the discretion of contracting par-
ties: firstly, the parties to a dispute arising under UNCLOS are free to cboose
tbe forum under wbicb tbey want to settle tbeir dispute," wbicb is determi-
native for tbe applicable rules in case one party decides not to participate
in tbe proceedings.'^ Secondly, tbe parties may settle tbeir dispute in any
way suitable. Le. tbe UNCLOS system is subsidiary to any special under-
standing between tbe parties.'^ Tbirdly, even witbin tbe general system of
compulsoryjurisdiction provided under UNCLOS, tbe Convention provides
tbe parties witb a number of exceptions, botb automatic and optional, tbat
one needs to examine in order to arrive at a conclusion wbetber in a given
case jurisdiction migbt be derived from UNCLOS.'*
A. Choice ofForum and Applicable Rules

Under Article 287 UNCLOS, contracting parties bave a cboice as to tbe
forum by wbicb possible disputes arising under tbe Convention sball be
settled. Article 287, paragrapb 1 UNCLOS provides tbat contracting parties
are generally free to declare wbetber they want to settle their disputes con-
cerning the interpretation or application of this Convention by eitber tbe
International Tribunal for tbe Law of tbe Sea (ITLOS) establisbed in accor-
dance witb Annex VI UNCLOS; or, in tbe alternative, by the International
Court ofjustiee; moreover they can opt for a settlement by an arbitral tribu-
nal to be constituted in accordance witb Annex VII UNCLOS or, finally, by
a special arbitral tribunal to be constituted in accordance witb Annex VIII
UNCLOS for one or more of tbe categories of disputes specified tberein.
Article 287 paragrapb 5 UNCLOS furtber provides tbat "[i]f tbe parties to a
' ' Part XV UNCLOS consists of Section 1 (General provisions, Articles 279-285), Section 2 (Com-
pulsory procedures entailing binding decisions. Articles 286-296) and Section 3 (Limitations and
exceptions to applicability of Section 2, Articles 297-299).
'<» Susanne Wasum-Rainer/Daniela Schlegel, "The UNCLOS Dispute Settlement System -
Between Hamburg and The Hague", 48 German Yearbook of¡ntemational Law (2005), 187,198.
'" See infra A.
'2) See infra B.
•3) Section 1, Articles 279-285 UNCLOS.
"" See infra D,
The Law andPractice oflntemational Courts and Tribunals ;2 (2013) 431-461 435
dispute have not accepted the same procedure for the settlement of the dis-
pute, it may be submitted only to arbitration in accordance with Annex VII,
unless the parties otherwise agree."
However, neither the Philippines in its declaration made upon signature
of UNCLOS on 10 December 1982, and confirmed upon ratification on 8 May
1984,'5 nor the PRC, when ratifying UNCLOS, have made any such choice.'^
Hence, there is no agreement between the Philippines and the PRC as
to the forum to be chosen in case a dispute between them under UNCLOS
arises. Accordingly, under Article 287, paragraph 5 UNCLOS, and sub-
ject to the limitations laid down in Articles 297 and 298 UNCLOS, it is an
Annex VII arbitral tribunal that has jurisdiction for disputes arising under
the Convention as between the Philippines and the PRC and the applicable
rules are accordingly those of Annex VII UNCLOS.
B. Annex VII UNCLOS and Non-Participation by One Party

As of now, the PRC has not shown any sign as to its willingness to even-
tually participate in the proceedings requested by the Philippines under
Annex VII UNCLOS concerning the dispute between the Philippines and
the PRC relating to the South China Sea. Rather to the contrary, it has
formally returned the note verbale together with an attached notification
stating that it considers the arbitral tribunal to even prima facie lack juris-
diction, thereby implying that it does not find the arbitral tribunal to be the
appropriate forum to settle the dispute.'^ The PRC has also made it known
'^' It is however worth noting that the Philippines, in its understanding made upon signature
(10 December 1982) and confirmed upon ratification (8 May 1984), had somewhatambivalently stated
that "[tjhe agreement of the Republic of tbe Pbilippines to the submission for peaceful resolution,
under any of the procedures provided in the Convention, of disputes under Article 298 [UNCLOS]
shall not be considered as a derogation of Pbilippines sovereignty." Philippine Understanding made
upon signature (10 December 1982) and confirmed upon ratification (8 May 1984), available at: bttp://
www.un.org/Depts/los/convention_agreements/convention_declarations.htm#Philippines%20
Understanding%2omade%20upon%20signature%20%28io%2oDecember%20i982%29%20
and%2oconfirmed%2oupon%2oratification (last accessed 30.07.2013).
•^' See Declaration of PRC upon ratification of UNCLOS (7 June 1996): "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 tbe Convention" (available at: http://wvmi.un.org/depts/los/
convention_agreements/convention_declarations.htm#China%2oUpon%2oratification).
"* See Ministry of Foreign Affairs of the People's Republic of China, Foreign Ministry Spokes-
person Hua Chunying's "Remarks on the Philippines' Efforts in Pushing for the Establishment of
Zimmermann and Bäumler/
436 The Law and Practice ofInternational Courts and Tribunals 72 (2013) 431-461
that it will not participate in the proceedings, nor has it, at least so far, par-
ticipated in the choice of arbitrators.'^ This raises the question whether the
proceedings before the Annex VII arbitral tribunal can be continued at all,
while being totally ignored by one of the parties to the dispute.
It is Article 9 Annex VII UNCLOS that specifically deals with the situ-
ation of one party not participating in the proceedings. According to this
provision, and in line with the principle already contained in Article 53 ICJ
Statute, "[i]f one of the parties to the dispute does not appear before the
arbitral tribunal or fails to defend its case, the other party may request the
tribunal to continue the proceedings and to make its award." Besides, said
provision also confirms that the mere "[a]bsence of a party or failure of
a party to defend its case shall not constitute a bar to the proceedings".
At the same time. Article 9 Annex VII UNCLOS requires that, before mak-
ing 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 law.
While in recent years instances of non-appearance before international
courts and tribunals in inter-State proceedings have become somewhat
more rare, it is still not unusual that an international court or tribunal has
to deal with the absence of one side of the case.'^ It has been in particular
the ICJ that has been faced with such situations a number of times. This
provided the Court with an opportunity to clarify the crucial elements
of Article 53 ICJ Statute,^" which provision in turn served as a model for
tbe Arbitral Tribunal in Relation to tbe Disputes between Cbina and tbe Pbilippines in tbe Soutb
Cbina Sea", 26 April 2013, available at: bttp://www.fmprc.gov.cn/eng/xwfw/s25io/2535/tiO35577.
sbtml; as well as Foreign Ministry Spokesperson Hua Cbunying's "Remarks on tbe Pbilippines'
Statement on tbe Soutb Cbina Sea", 16 July 2013, available at: bttp://wTvw.fmprc.gov.cn/eng/
xwfw/s25io/2535/tio59343.sbtml (last accessed 30.07.2013).
'*' Cf. ITLOS/Press Release 191, 25 April 2013 and ITLOS Press Release/197, 24June 2013.
'^' Andreas Zimmermann/Hans von Mangoldt in A. Zimmermann et al. (eds.). The Statute of the
¡ntemational Court of Justice - A Commentary (2012), Art. 53 MN 2; Cbina also did not participate
in tbe PCIJ proceedings on provisional measures brougbt by Belgium in 1927 (Denunciation of
tbe Treaty of November 2nd, 1865); tbe case was later settled by extrajudicial means, cf. Mattbias
Goldmann, ¡ntemational Courts and Tribunals, Non-Appearance, MPEPIL (2012), para. 4; otber
International Courts and Tribunals also include provisions on non-appearance sucb as Article 28
Annex VI. Statute of tbe Intemational Tribunal for tbe Law of tbe Sea, Art. 44B to 44E Rules of tbe
Court of tbe ECtHR, Art. 28(1) UNCITRAL Rules, Rule 42 of tbe Arbitration Rules of ICSID.
2<" So far, explicit reference to Art 53 was made in seven cases, namely Coiju ChannelCase ( United
Kingdom v. Albania), ICJ Reports (1949) 244, 249; Fisheries Jurisdiction Cases (United Kingdom
V. Iceland; Federal Republic of Germany v. Iceland), ICJ Reports (1974) 3, 9; 175, 180-181; Case
The Law andPraetice of International Gourts and Tribunals 72 (2073) 431-461 437
Article 9 Annex VII UNCLOS.^' In mutatis mutandis identical terms as tbose

of the latter provision. Article 53 ICJ Statute provides tbat tbe party may
still "call upon tbe Court to decide in favour of its claim" wbile paragrapb 2
tbereof clarifies tbat the Court must, before doing so, satisfy itself, not only
that it has jurisdiction in accordance with Articles 36 and 37, but also tbat
tbe claim is "well founded in fact and in law".
On tbe one band. Article 53 ICJ Statute, just like Article 9 Annex VII
UNCLOS, aims at protecting tbe active party in order tbat its efforts are
not frustrated by tbe otber side merely ignoring tbe proceedings.^^ On
tbe otber band, botb Article 53 ICJ Statute, as well as Article 9 Annex VII
UNCLOS, guard tbe rigbts of tbe defaulting party by ensuring tbat any deci-
sion is to be taken in accordance witb tbe law, botb jurisdiction- and sub-
stance-wise.^^ Tbus, botb provisions protect the rigbts and sovereignty of
botb sides and tbereby contribute to tbe equality of tbe parties before the
court or, respectively, tbe tribunal.^"*
The jurisprudence of the ICJ, as well as tbe object and purpose of
Article 53 ICJ Statute and Article 9 Annex VII UNCLOS, lead to tbe con-
clusion tbat tbis provision is applicable also in tbe jurisdiction and admis-
sibility pbase of a given case as otberwise a party could bar tbe tribunal
from proceeding to tbe merits if it did not appear in tbe initial pbase of a
case.25 However, tbis does not quite answer wbat standard tbe Court, or,
respectively, tbe tribunal bas to meet in order to approve its jurisdiction.
It bas been suggested witb regard to tbe ICJ tbat it would be sufficient for
the Court to meet a primafacie test to find tbat it bas jurisdiction, similar to
tbe standard applied witbin tbe framework of Article 41 ICJ Statute wben it
comes to tbe exercise of jurisdiction to adopt provisional measures.^^ Yet, it
has rightly been pointed out that tbe difference between provisional mea-
sures on tbe one band and non-appearance on tbe otber band is to be seen
conceming the United States Diplomatic and Consular Staff in Tehran (United States of America v.
Iran), ICJ Reports (1980) 3, 9; Case eonceming Mititary and Paramititary Activities in and against
Nicaragua (United States of America v. Nicaragua), ICJ Reports (1986) 14,23-26, uo-ui, 142.
^'* O. A. Adede, The Systemfor Setttement ofDisputes Under the United Nations Convention on the
Law of the Sea (1987), 229.
^2' Zimmermann/von Mangoldt supra note 19, Art. 53 MN 3.
"> Ibid.,MN4.
^*^ Goldmann, supra note 19, para. 2.
^^' Zimmermann/von Mangoldt, supra note 19, Art 53 MN 42-46.
^^' Ibid. para. 55.
438 The Law and Practice oflntemational Courts and Tribunals 12 (2013) 431-461
in the provisional character of the decision in the former case.^^ To put it

differently, while it might be appropriate to allow for a prima facie stan-
dard with regard to provisional measures, this might not be the case with
regard to a final decision as to the Jurisdiction of the ICJ, or, respectively,
the Annex VII tribunal.^**
However, this may not lead to the conclusion that the arbitral tribu-
nal would have to take into consideration any possible existing argument
which might bar it from exercising its Jurisdiction. It is especially those
Jurisdictional objections that need to be formally invoked that are not to
be considered if the party under the obligation to invoke them decides to
simply disregard the proceedings.^^ Rather, the tribunal. Just as the ICJ, is
under an obligation to consider the Jurisdictional grounds relied upon by
the applicant, including those aspects raised ex-ante by the participating
party.3° One ought to note, however, that it has been in particular the ICJ
which in recent times stressed that it is incumbent upon it to eventually
make sure proprio motu that it has Jurisdiction in any given case.-^'
What is even more true, and of particular relevance for an arbitral tri-
bunal that is by its very nature even more based on the will of the parties
(and for the sake of its own credibility), is that such arbitral tribunal ought
to discuss any possible consideration, should it find it has Jurisdiction, in
order to persuade the other side of the fairness of the proceedings,^^ thereby
increasing the chances of any award being complied with by the parties.^^
The Annex VII arbitral tribunal, with regard to the non-participation of
the PRC, might similarly be confronted with the follow-up question regard-
ing how to treat irregular procedural communications in the manner of the
2" Ibid.
28) Ibid.
2!» Ibid.
30> Ibid.
^" See only recently Case eoneeming Application of the ¡ntemational Convention on the Elimina-
tion ofAll Forms ofRaeialDiserimination (Georgia v. Russian Federation), Preliminaiy Objections,
Judgment, ICJ Reports (2011) 70.
^2' This was the case in the Anglo-Iranian Oii Company Case (United Kingdom v. Iran), ICJ
Reports (1952) 93 with regard to Iran as well as in the Nottebohm Case (Liechtenstein v. Guate-
mala), ICJ Reports (1955) 4 with regard to Guatemala, both later participating in the proceeding
after abstaining in the initial phase.
'^' Goldmann, supra note 19, para. 2.
The Law andPractice ofLntemationat Courts and Tribunals 12 (2013) 431-461 439
ICJ, wbicb bas seen a number of cases of non-appearance.^* Tbe ICJ took a
liberal approacb and considered information informally received through
irregular channels.^^ Although one can criticise tbe idea that this advanta-
geous treatment is not deserved by tbe defaulting party,^^ it is nonetbeless
required by Article 53 paragrapb 2 ICJ Statute and tbe duty of fair treatment
of tbe opposing party tbat would otberwise be forced to participate in tbe
proceedings; otberwise, none of its arguments could possibly be consid-
ered.3^ Tbe concept tbat a fair balance must be struck is even more so tbe
case in arbitral proceedings, wbere tbe creation of tbe tribunal is based on
tbe will of tbe parties and tbe tribunal is not bound to apply strict proce-
dural rules but determines its own procedural process.^^
C. Possible Existence of an Agreement between the Parties Precluding

Recourse to Arbitration under Annex VII UNCLOS
As only irregular communications can be taken into account, tbere bave
been few official statements coming from tbe PRC concerning the dispute
between it and tbe Pbflippines brougbt under Annex VII UNCLOS.^^ In its
statement tbat at least indirectly addressed tbe jurisdiction of tbe Annex VII
UNCLOS arbitral tribunal, tbe PRC referred to tbe "Declaration on tbe
Conduct of Parties in the South China Sea", signed by tbe ASEAN member
States and tbe PRC in 2002 accompanied by tbe guidelines to implement
said document agreed upon in 2011, wbicb aimed to develop a "Code of
Conduct" for tbe Soutb Cbina Sea.*" Tbis Declaration provides tbat it is tbe
obligation of tbe parties, and tbus also tbat of tbe Pbflippines and tbe PRC,
a"" Aegan Sea ContinentalShetf, ICJ Reports (1978) 3,18 (para. 47); Case Conceming UnttedStates
Diplomatic and Consutar Staff in Tehran, ICJ Reports (1980) 3,18; Mititary and ParamiUtary Activi-
ties in and against Nicaragua (Nicaragua v. United States of America), ICj Reports (1986) 14,26.
^^' Zimmermann/von Mangoldt, supra note 19, Art. 53 MN 60.
ä^* H.W.A. Thirlway, Non-Appearance before the ¡ntemationat Court ofjustiee (1985), pp. 137-157;
P.-M. Eisemann, "Les effets de la non-comparution devant la Cour internationale de Justice", 19
AFDI (1973), 351,363-364
' " Zimmermann/von Mangoldt, supra note 19, Art. 53 MN 61.
^*' Article 5 Annex VII provides that "Unless the parties to the dispute otberwise agree, the arbi-
tral tribunal shall determine its own procedure, assuring to each party a full opportunity to be
heard and to present its case".
33) See PRC's statements, supra note 17.
"•o' Available at www.asean.org (last accessed 14.08.2013).
440 The Law and Practice ofInternational Courts and Tribunals 12 (2013) 431-461
to resolve any dispute arising between them related to the South China Sea
hy way of "friendly negotiations and consultations"."*'
As a matter of fact, the PRC has a long standing tradition of solving dis-
putes on a bilateral and diplomatic level rather than relying on third-party
settlement.'*^ It is against the hackground of hoth, i.e., the PRC's policy on
the matter and the content of the "Declaration on the Conduct of Parties
in the South China Sea", that one must now turn to a review of Section 1 of
Part XV of UNCLOS.
According to Article 280 UNCLOS, the parties to UNCLOS are free to
settle any dispute hetween them "by any means of their own choice". If
the parties have indeed agreed to seek settlement of a dispute hy an alter-
native peaceful mechanism, according to Article 281, paragraph 1 UNCLOS,
the procedure provided for in Part XV of UNCLOS can only be invoked if "no
settlement has been reached" and if the parties did "not exclude any further
procedure". This means that contracting parties are allowed to opt out from
the compulsory proceedings of UNCLOS under certain conditions.'*^
In order for the arbitral tribunal to eventually find the "Declaration on
the Conduct of Parties in the South China Sea" and the negotiations and
consultations envisaged in said document to constitute a valid alternative
to binding third-party settlement under Article 287 UNCLOS, and thus pre-
cluding recourse to an Annex VII arbitral tribunal, three questions need
to be answered: Firstly, does the "Declaration on the Conduct of Parties
in the South China Sea" constitute an 'agreement' within the meaning of
Article 280 UNCLOS?; secondly, is the Declaration interpreted so as to
exclude the compulsory jurisdiction under section 2 of Part XV UNCLOS?
Finally, has the procedure provided for in the "Declaration on the Conduct
of Parties in the South China Sea" failed or are the parties still hound to
pursue negotiations under said agreement?
*" Declaration on the Conduct of Parties in the South China Sea, para. 4.
*^^ Zou Keyuan, "China's U-Shaped Line in the South China Sea Revisited", 43 Ocean Development
& International Law (2012) 18,29.
^^' Southern Bluefin Tuna Case (New Zealand v. Japan; Australia v. Japan), Award on jurisdiction
and admissibility, 4 August 2000,39ILM (2000) 1359 [hereinafterSoMíAem Bluefin Tuna Case]; see
also Separate Opinion Judge Kenneth Keith, p. u, para. 17.
The Law andPractice oflntemational Courts and Tribunals 72 (2073^ 431-461 441
1. "Declaration on the Conduct of Parties in the South China Sea":

An Agreement within the Meaning of Article 280 UNCLOS?
According to Article 280 UNCLOS, the parties are free to agree at any time
to settle a dispute between them by any means of their own choice. The
PRC continuously refers to the "Declaration on the Conduct of Parties in
the South China Sea" and the obligation of the PRC to bilaterally negoti-
ate.'*^ Yet, the said Declaration has also been described as a mere "political
document, [which] carries no legal binding force".'*^ However, Article 280
UNCLOS does not use the formal term of an 'international agreement', but
rather refers to the verb 'agree' which appears to be of a somewhat less
technical nature. The reasoning of ITLOS in the Malaysia v. Singapore case
seems to imply that an understanding between the parties to a given dis-
pute does not have to be formal, since in the said case even a simple offer
by one party to negotiate accepted by the other side could already have
constituted an 'agreement' within the meaning of Article 281 UNCLOS.'*^
The underlying rationale for Article 280 UNCLOS was, on the one hand,
that the parties were meant to remain the 'masters of the procedure to be
used' to settle disputes between them in any manner suitable and at all
times.*''' On the other hand, it can be argued that any such agreement under
Article 280 UNCLOS leads to the exclusion of the otherwise legally bind-
ing compulsory jurisdiction intended by Part XV UNCLOS. Thus, it might
well be reasoned that the provision at least requires the parties to 'express
explicitly* that they are bound to the alternative mechanism agreed upon.'*^
The less formal the agreement ought to be, the easier one party to a given
dispute may invoke any such kind of'arrangement' so as to circumvent the
compulsory mechanism foreseen under UNCLOS.
'*'* See PRC's statements, supra note 39.

*^' Keyuan, supra note 42, 24.
''^' One ougbt to note, bowever, tbat in tbis particular case Article 281 UNCLOS was not appli-
cable as tbe parties bad explicitly agreed on reserving Malaysia's rigbt to proceed witb arbitration
under Annex VII, Case conceming Land Reelamation by Singapore in and around the Straits of
Johor (Malaysia v. Singapore), ITLOS Case No. 12, paras. 53-57; A. Sbeeban, "Dispute Settlement
Under UNCLOS: Tbe Exclusion of Maritime Delimitation Disputes", 24 University of Queensland
Lawjoumal (2005), 165,173.
•"' M. Nordquist/S. Rosenne/L. B. Sobn (eds.). United Nations Convention on the Law of the Sea
1982 -A Commentary, Volume V (1989), Art. 280, para. 1.
'^> MoxPlant Case (Ireland v. United Kingdom) (Provisional Measures), ITLOS Case No. 10, Sepa-
rate Opinion Judge Wolfhim 5 witb regard to interpretation of Article 282 UNCLOS.
442 The Law and Practice oflntemational Gourts and Tribunals /2 (2013) 437-467
Tbus, if one were to find tbat tbe term sbould be understood similarly
to, inter alia. Article 15 UNCLOS, whicb is also concerned witb agree-
ments between contracting parties - bowever, dealing witb a mucb more
substantial question namely wbetber sucb contracting parties agreed
on tbe delimitation of tbe territorial sea between tbem"*** - and wbicb
ITLOS indeed found to solely encompass 'legally binding agreements', it
would be mandatory for the "Declaration on the Conduct of Parties in the
Soutb Cbina Sea" to constitute an internationally binding agreement so
as to eventually bar tbe jurisdiction of tbe Annex VII tribunal by virtue of
Article 280 UNCLOS.
In tbat regard, it sbould first be noted tbat tbe fact tbat tbe agreement is
referred to as a mere 'declaration' does notper.se exclude afindingin tbat
respect. Indeed, Article 2 Vienna Convention on tbe Law of Treaties (VCLT)
clarifies tbat an international agreement is any (written) agreement con-
cluded between States irrespective of its form or the title of the document.^"
The ICJ has confirmed that even a press communiqué or minutes ofa meet-
ing may, depending on the prevailing circumstances, be categorized as an
international agreement provided it contains legally binding obligations.^'
Put otberwise, a legal instrument, in order to be more tban a mere state-
ment of policies or a gentleman's agreement, must entail the wish of the
parties to create binding obligations under international law.^^
In tbe case at band, tbe "Declaration on tbe Conduct of Parties in tbe
Soutb Cbina Sea" does indeed appear to be more tban just a mere non-
binding agreement, but ratber contains features wbicb bear cbaracteristics
of a formal international treaty, given especially its preamble and official
language. More specifically, it is wortb noting tbat tbe parties 'committed'
tbemselves to certain bebaviour regarding tbe Soutb Cbina Sea, includ-
ing resolving their disputes peacefully through friendly consultations
*^' Dispute Conceming Detimitatlon ofthe Maritime Boundary Between Bangtadesh and Myanmar
In the Bay of Bengat {Myanmar v. Bangladesh), ITLOS Case No. 16, Judgment 4 March 2013, para. 89
and para. 93: "The Trihunal notes that the circumstances in which the 1974 Agreed Minutes were
adopted do not suggest that they were intended to create legal obligations or embodied commit-
ments ofa binding nature."
^ ' O. Corten/P. Klein (eds.). The Vienna Convention on the Law of Treaties - A Commentary (2011),
Art 2, paras. 8-11 [hereinafter VCLT Commentary].
' " Case Conceming Maritime Detiniitation and Territorial Questions Between Qatar and Bahrain
(Qatar V. Bahrain), Jurisdiction and Admissibility, ICJ Reports (1994) 112,121.
^^' VCLT Commentary, supra note 50, Art 2, para. 26.
The Law andPractice oflntemational Courts and Tribunals 12 (2013) 431-461 443
and negotiations. This term quite strongly militates in favour of finding that
it constitutes an international agreement establishing the obligation of the
parties to consult and negotiate about matters of dispute arising between
them and related to the South China Sea.
In addition, the mere fact that the "Declaration on the Conduct of Par-
ties in the South China Sea" contains relatively weak obligations of conduct
rather than result, which furthermore are not supplemented by specific
means and methods of implementation, and even less by possibilities of
enforcement, does not lead to the said agreement not amounting to an
international agreement within the meaning of Article 280 UNCLOS. As a
matter of fact, although for an international agreement to be qualified as
such it is necessary that it entails legal rights or obligations, it is sufficient
that the treaty establishes a legal relationship in the sense of a duty to con-
sult or negotiate.53 Indeed, in its Jurisprudence, ITLOS confirmed that an
agreement in order to be so qualified does not necessarily have to provide
for a particular alternative dispute settlement procedure.^
2. Exclusion ofAlternative Third-Party Settlement Procedures?

Having thus determined the legal character of the "Declaration on the
Conduct of Parties in the South China Sea", one might still wonder whether,
indeed, by entering into the agreement, the parties had by the same token
really intended to simultaneously exclude any other kind of third-party
mechanism for the peaceful settlement of disputes generally, and especially
proceedings under UNCLOS, as contemplated in Article 281 UNCLOS.
It has been stressed that, given the system of compulsory Jurisdiction
established by UNCLOS providing for third-party settlement by either
the ICJ, ITLOS or an arbitral tribunal under Part XV of UNCLOS, any gen-
eral exclusion of any form of third-party settlement mechanisms would
require a clearly articulated will to opt out from the UNCLOS dispute settle-
ment system in toto, and thus unequivocal language to that effect in the
respective agreement.^^ Yet, even if one were not to require the relevant
^^' VCLT Commentary, supra note 50, Art. 2, paras. 26-27.

^*' Southern Bluefin Tuna Case, supra note 43, para. 55.
5^' Separate Opinion Judge Sir Kenneth Keith, p. 14, para. 22; this view is contrary to the main opin-
ion in the Southern Bluefin Tuna Case where the Tribunal stated: "It thus appears to the Tribunal
that UNCLOS falls significantly short of establishing a truly comprehensive regime of compulsory
jurisdiction entailing binding decisions", p. 102, para. 62; yet, this finding, on account of the draft-
ing history and the structure and heading of Part XV, is not convincing, see Keith, paras. 17-30; see
444 The Law andPractice of ¡ntemationat Courts and Tribunats 12 (2013) 431-461
exclusion to be express in nature, given tbe lacunae inberent in tbe system

of compulsory jurisdiction establisbed under UNCLOS itself, tbe question
would stifl arise as a matter of treaty interpretation wbetber tbe parties not
only intended, but also at least implicitly expressed, tbeir will to exclude
tbe various UNCLOS procedures, including for disputes arising under tbe
Convention itself,^** and even if tbe otber metbods. Le. in the case at band
negotiations, bave failed.
Tbis does not bowever seem to be tbe case witb regard to tbe "Declara-
tion on tbe Conduct of Parties in tbe Soutb Cbina Sea". It is particularly
relevant to note tbat tbe parties to tbe Declaration "reaffirm[ed] their com-
mitment to the purpose and principles of the 1982 UN Convention on tbe
Law of tbe Sea" in tbe first paragrapb. More specifically, in paragrapb 4 deal-
ing witb tbe settlement of disputes, tbe Declaration again explicitly refers
to UNCLOS and tbe parties declare tbeir willingness to resolve any dispute
in accordance witb tbe principles of tbe Convention. It is also telling tbat
in tbe "Declaration on tbe Conduct of Parties in tbe Soutb Cbina Sea" tbe
parties do not specifically refer to tbe dispute settlement mecbanisms of
UNCLOS as being in any way affected by tbe Declaration. Yet, tbe parties
could have at least implicitly excluded the applicability of tbe peaceful
settlement mecbanisms under UNCLOS, Inter alia, by solely referring to
tbe substantial provisions of UNCLOS. However, in tbe said Declaration
tbe parties referred to tbe purpose and principles of UNCLOS generally, of
wbicb a central one is tbe peaceful settlement of disputes concerning the
Law of the Sea by tbe means provided in Part XV, wbicb system forms an
integral part of UNCLOS.^^
In sum, it can tbus be concluded tbat, even if one were indeed to con-
sider tbe "Declaration on tbe Conduct of Parties in tbe Soutb China Sea"
to constitute a legally binding arrangement, it was at least not meant to
exclude arbitral proceedings under Annex VII UNCLOS ad infinitum, con-
trary to wbat it seems tbe PRC bas binted at in its statements relating to tbe
dispute brougbt by tbe Pbilippines.
also A. E. Boyle, "Dispute Settlement and the Law of tbe Sea Convention; Problems of Fragmenta-
tion andjurisdiction", 47 ¡ntemationatand Comparative Law Quarterty (1997) 37,39.
^' Southern Btuefin Tuna Case, supra note 43, para. 57.
" ' Cf. Statement of Ambassador T. T. B. Kob at the final session in 1982, published in United
Nations, The Law of the Sea. Official Text of the United Nations Convention on the Law of the Sea;
from statements made on 6 and 11 December 1982; B. H. Oxman, "Complementary Agreements
and Compulsory Jurisdiction", Q^ American Joumat of Intemationat Law (2001) 277, 286; Adede,
supra note 21,242.
The Law and Practice of International Courts and Tribunals ?2 (2013) 431-461 445
3. Failure of Negotiations providedfor under the "Declaration on the

Conduct of the Parties in the South China Sea"
It follows that, as shown, while the "Declaration on the Conduct of Parties
in the South China Sea" might indeed constitute an agreement between
the parties related, inter alia, to the settlement of disputes in the South
China Sea, it still does not exclude reference to Part XV UNCLOS as such.
The question that therefore now needs to be addressed is whether the pro-
cedures foreseen by the said declaration have failed since, as mentioned
above. Article 281 UNCLOS provides that "the procedures provided for in
this Part apply only where no settlement has been reached by recourse to
such means".
As a matter of fact, the PRC seems to argue that, in any event, the pro-
cedures for the peaceful settlement of disputes provided for in the "Dec-
laration on the Conduct of Parties in the South China Sea" have not (yet)
been exhausted, and that therefore the arbitral tribunal set up under
Annex VII UNCLOS is barred from exercising jurisdiction, even if otherwise
it would have jurisdiction.^^ Although the Philippines and the PRC, and
in fact all ASEAN States, have been negotiating on possible solutions for
the South China Sea disputes for years in accordance with the "Declaration
on the Conduct of Parties in tbe South China Sea", it might nevertheless
be required that the Philippines keep undertaking attempts to resolve the
dispute bilaterally before referring the dispute to UNCLOS. Indeed, the par-
ties continue to have ongoing negotiations which might indicate that the
mechanism to negotiate and consult has not yet failed.
It is not entirely clear when the means of negotiations are to be consid-
ered as having heing exhausted.^^ The question has thus been considered
to be of a rather "relative" nature.^" Any answer has to he "oriented towards
concrete circumstances of the case, and governed by the principle of good
faith".^' In the ahsence of a general rule, time might also be a factor to be
5^' See PRC's statements, supra note 39.

5^' The United States had argued similarly with regard to the Contadora Peace Process in the
Nicaragua Case, Preliminary Objections, ICj Reports (1984), at 392, para. 11.
™* Mavrommatis Palestine Coneession Case (Greece v. Britain), PCIJ Series A (1924), No 2, p. 13:
"(...) the question of the importance and chances of success of diplomatic negotiations is essen-
tially a relative one. (...) No absolute and general rule can be laid down in this respect".
^" Anne Peters, "International Dispute Settlement: A Network of Cooperational Duties", 14 Euro-
pean Joumal ofInternational Law (2003), 1,13.
446 The Law and Practice oflntemational Courts and Tribunals 72 (2013) 431-461
taken into consideration.^^ The main question is whether a deadlock has

been reached between the parties.''^ The ITLOS approach suggests that
such a mechanism is exhausted if one of the parties expresses its view that
the negotiations have indeed failed and the party is invoking the dispute
settlement system under UNCLOS."^ The Tribunal expressly stated that
this provision [Le. Article 16 Bluefin Tuna Convention] does not require
the Parties to negotiate indefinitely while denying a Party the option of
concluding, for purposes of both Article 281(1) and 283 [UNCLOS], that
no settlement has been reached. To read Article 16 [of the Bluefin Tuna
Convention] otherwise would be unreasonable.*"^
Given the very long-standing character of the dispute over the South China
Sea and the many fruitless attempts to bring about a solution by way of
negotiations, be they undertaken within forums such as ASEAN, or be they
undertaken on a bilateral level, as well as the opposing notes verbales sent
to the UN Secretary General by the PRC and the Philippines in 2009 and
2011 providing evidence of the fundamentally contradicting views of both
sides,^^ it is convincing, if not mandatory, to argue that the parties were
not, at the time the request for arbitration under Annex VII UNCLOS was
submitted by the Philippines, able to find a solution by way of negotiations
and that the negotiations had indeed failed. As a matter of fact, and as the
ICJ has confirmed time and again,*"^ any obligation to negotiate as a prereq-
uisite to bringing a case before an international court or tribunal, where it
exists, such as the one under the "Declaration on the Conduct of Parties in
^2> South West AJrica Cases ( Etbiopia v. Soutb Africa; Liberia v. South Africa), Preliminary Objec-
tions, ICJ Reports (1962) 319,344-345.
63) ¡bid.
®^' Southern Bluefin Tuna Case (New Zealand v. Japan; Australia v. Japan), Provisional Order of
27 August 1999, paras. 59-60.
6^' Southem Bluefin Tuna Case, supra note 43, 1389; similar considerations applied witb regard
to Article 283 in tbe Case concerning Land Reclamation by Singapore in and around the Straits
of Johor (Malaysia v. Singapore), Case No. 12, ITLOS (2003), Order of 8 October 2003, 48 and Mox
Plant Case (Ireland v. United Kingdom), Provisional Measures, ITLOS Case No. 10, Order of 3
December 2001,60.
^•^ Afoie Verbal of tbe PRC, 7 May 2009; Note Verbal of tbe Pbilippines, 4 August 2009.
^^ See e.g. Case Coneeming Military and Paramilitary Activities in and against Nicaragua (Nica-
ragua V. USA), Preliminary Objections, ICJ Reports (1984), p. 392, para. 11; Questions relating to the
Obligation to I^osecute or Extradite (Belgium v. Senegal), ICj Reports (2012), para. 59.
The Law and Practice oflntemational Gourts and Tribunals ;2 (2013) 437-467 447
the Soutb China Sea", cannot indefinitely bar an applicant State, Le. in tbe
case at band tbe Pbilippines, wbicb bas tried to resolve the dispute witb
tbe PRC by way of negotiations for quite a number of years, from submit-
ting a claim.
As an intermediate result, tbe general possibility to refer to otber means
of peaceful dispute settlement to tbe exclusion of the compulsory juris-
diction of UNCLOS according to Section 1 of Part XV does not bar tbe
arbitral tribunal in tbis case, tbe setting up of whicb was initiated by the
Philippines, to find tbat it has jurisdiction over the dispute in tbe Soutb
China Sea.
D. Limits of Jurisdiction of the Annex VII UNCLOS Arbitral Tribunal under

Articles 237 and 298 UNCLOS
1. General Considerations
During tbe negotiations leading to tbe adoption of UNCLOS generally, and
its Part XV more specifically, the issue of compulsory jurisdiction consti-
tuted one of the most disputed aspects of the overall negotiation process
and could only be realized by way of a compromise, witb a set of both
automatic and optional possibilities of excluding tbe jurisdiction of eacb
and every one of tbe mechanisms foreseen under Article 287 UNCLOS.^^
Yet, it should first be kept in mind that, at least as a basic rule, disputes
within the scope of UNCLOS are to be resolved according to tbe compul-
sory system of third-party settlement provided for in section 2 of Part XV of
UNCLOS, Le. in Articles 286-296. Hence, any exclusion of such third-party
settlement constitutes an exception to tbis rule,^^ to be tben narrowly con-
strued in line witb general rules of interpretation and particularly tbe rule
oí exceptiones sunt strictissimae interpretationis7°
This underlying understanding of UNCLOS' dispute settlement system
stands in contrast to tbe system establisbed under tbe Statute of tbe ICJ,
^*' sheehan, supra note 46, i66; R. Wolfrum in W. Graf Vitzthum (ed.), Handbuch des Seerechts
(2006), pp. 465-467.
63> Ibid.
™' North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federat Repubtie
of Germany v. Netherlands), Judgment (dissenting opinion of Judge Tanaka), ICJ Reports (1969)
186-187; the principle is however not unanimously accepted, e.g. it is not applied in WTO Dis-
pute Settlement AS, fC-Measure.s Conceming AíeaíawrfAíeat/'roí/ucís ("Hormones"), WT/DS27,
48/R, para. 104.
448 The Law and Practice of International Courts and Tribunals 72 (2013) 431-461
where States are free to submit themselves to tbe Court's Jurisdiction, or

not, and where, accordingly, inter alia, reservations to declarations under
Article 36, paragraph 2 ICJ Statute are to be considered as forming an
integral part thereof and are thus not subject to any form of presumption
regarding their being narrow in nature.^'
There are however two provisions that limit the UNCLOS-based Juris-
diction of the ICJ, of ITLOS or of an arbitral tribunal to be set up under
Annex VII UNCLOS, namely Articles 297 and 298. The former provision
automatically, and tbe latter provision optionally, both provide that a num-
ber of issues are ipsofacto, or by virtue of a unilateral declaration made by
a State when becoming a contracting party, excluded from the Jurisdiction
of, inter alia, as in the case at hand, an arbitral tribunal under Annex VII
UNCLOS.
In that regard it should be noted, first, that some of the issues automati-
cally excluded or possibly to be excluded are, at least partially, closely inter-
woven with the merits of the case being brought, making it thus necessary
for the ICJ, ITLOS or the Annex VII arbitral tribunal approached by an
applicant State to either decide crucial aspects already in the Jurisdictional
phase of the case, or to, instead. Join the questions of Jurisdiction to the
proceedings on the merits.^^ This is particularly relevant where, like in the
case at hand, the non-appearing respondent State challenges the tribunal's
Jurisdiction and may thus expect the tribunal not to enter into issues of
substance as long as itsjurisdiction has not yet been confirmed.
2. Possible ipso facto Exclusion offurisdiction under Article 2gj Paragraph

1 UNCLOS
(a) Structure of Article 297 Paragraph 1 UNCLOS
Article 297 paragraph 1 UNCLOS provides for exceptions to the compulsory
Jurisdictional system provided by UNCLOS when it comes to the sovereign
rights of coastal States. The said provision features a rather elaborate
™ C. Tomuschat in Zimmermann et al. (ed.), supra note 19, Art. 36 MN 72.

'2' This possibility exists with regard to the ICJ, Art. 79 para. 9 Rules of the Court and was already
undertaken by the Panevezys-Saldutiskis Railway Case, PCIJ Ser. A/B No. 75 (1939), 56; a simi-
lar provision does not exist with regard to Arbitration under Annex VII as according to Art. 5,
absence an agreement by the parties, the "arbitral tribunal shall determine its own procedure";
Barbados v. the Republie of Trinidad and Tobago, Arbitral Award of 11 April 2006, Suriname v. Guy-
ana, Arbitral Award of 17 September 2007.
Zimmermann and Bäumter/
The Law and [factice ofLntemationat Courts and Tribunals 12 (2013) 431-461 449
Structure given that not all disputes that engage tbe sovereign rigbts of
coastal States are meant to be excluded. Ratber "[d]isputes concerning tbe
interpretation orapphcation of tbis Convention [UNCLOS] witb regard to
tbe exercise by a coastal State of its sovereign rigbts or jurisdiction provided
for in this Convention" stifl fall within tbe system of compulsory jurisdiction
establisbed under UNCLOS, provided tbey relate to one of tbe categories of
disputes mentioned in Article 297, paragrapb 1 (a)-(c) UNCLOS. Expressed
otberwise, tbe rule is tbat disputes regarding tbe rigbts of coastal States
are excluded unless tbey are (re-)introduced into tbe system of compulsory
jurisdiction by virtue of Article 297 UNCLOS.''^
(b) Possible Coastal State Status of the PRC in the Case at Hand
The very first question one ought thus to consider is whether tbe rigbts of a
coastal State are involved given tbat Article 297 UNCLOS provides tbat tbe
exercise by a coastal state of its "sovereign rigbts or jurisdiction" is excluded
from the jurisdiction of ITLOS or tbe Annex VII tribunal. However, it is first
important to note tbat tbe Pbilippines, wbile itself being a coastal State,
wben appearing in tbe role of tbe complaining party, is not precluded by
Article 297 UNCLOS from bringing a case. Article 297 UNCLOS simply aims
to protect tbe interests of tbe respective respondent State, namely from
bindering a case involving sovereign rigbts or jurisdiction of a coastal State
being brougbt before ITLOS oran Annex VII tribunal against the will oí the
said coastal State.
Tbus, in order to eventually be able to rely on tbe exclusion of jurisdic-
tion under Article 297 UNCLOS, it is tbe PRC as tbe respondent State tbat
would bave to argue, or, respectively, tbe arbitral tribunal would bave to
make a finding, tbat tbe PRC indeed is a 'coastal State' witb regard to tbe
area to wbicb tbe dispute brougbt by tbe Pbflippines relates.'^* Tbe term
'coastal State' is contained in a large number of UNCLOS' provisions, bow-
ever it is not defined in tbe Convention. A State is a 'coastal State' witb
regard to its territorial sea, continental sbelf and exclusive economic zone.
To state tbe obvious, it is beyond doubt tbat tbe PRC bas a coast and is
tbus a coastal State. Tbe question is, bowever, wbetber tbis fact excludes a
dispute over an area and especially islands tbat lie several bundred miles
73) Wolfrum, supra note 68, p. 472.

^'" Tbe Pbilippines explicitly excluded the dispute concerning the Paracel Islands from the case,
see Philippines statement of 22 January 2013, para. 10.
450 The Law and Practice oflntemational Courts and Tribunab 12 (2013) 431-461
away from this very coastline from coming within the jurisdiction of the
Annex VII arbitral tribunal hy virtue of Article 297 UNCLOS. To exaggerate
the point, one could ask whether the PRC could be considered the coastal
State excludingjurisdiction with regard to islands situated, e.g. off the coast
of Australia.
It should first be noted in that regard that jurisdictional limitations con-
tained in Article 297 UNCLOS deal with the exercise of sovereign rights or
jurisdiction. In a narrow interpretation, it may be argued that the exclusion
thus only refers to a coastal State's exclusive economic zone (EEZ).^^ Under
Articles 55-75 UNCLOS, the sovereign rights of a coastal State's exclusive
economic zone extend to a maximum of 200 nautical miles measured from
the respective baselines.™ Yet, even if one were to include areas of the
continental shelf as constituting a maritime area where sovereign rights
or jurisdiction is being exercised, the absolute limit would he 350 nauti-
cal miles off the coast.'^^ However, mainland PRC lies ahout 550 nautical
miles from the outer limits of the so-called nine-dash-line and it would thus
he difficult, to say the least, to consider the PRC as the coastal State with
regard to most, if not all, of the disputed areas, if the mainland of the PRC is
to be taken as the relevant point.
The PRC might however consider invoking, and the arhitral tribunal
might consider, even proprio motu, to determine whether formations
within the area of the Spratly Islands and the Scarborougb Shoal in the
South China Sea come within the sovereignty of the PRC, enabling it to
claim the status of a coastal State exercising its sovereign rights and juris-
diction. This is especially a possibility given that, already in its note verbal
of 2009, the PRC had declared a baseline around certain islands lying in the
South China Sea, thereby indicating its general respect of, and taking into
consideration, tbe rules of UNCLOS, in particular tbe principle that "the
land dominates the sea".
However, in order to arrive at the conclusion that the PRC is indeed
the coastal State in the given area, so as to exclude the arbitral tribunal's
^^' A. Serdy in A. Proelß (ed.). United Nations Convention on the Law of the Sea - Commentary
(forthcoming 2014), Art. 297, MN 9.
^^' Including its continental shelf, A. Proelß in W. Graf Vitzthum (ed.), supra note 68, 230.
" ' Nguyen Hong Thao/Ramses Amer, "Coastal States in the South China Sea and Submissions
on the Outer Limits of the Continental Shelf, 42 Ocean Development & Intemational Law {2ot¡)
245,246.
The Law and Practice oflntemational Courts and Tribunals 12 (2013) 431-461 451
jurisdiction on the matter, would require the determination of which State

has sovereignty, if at all, over the Spratly Islands and the Scarborough Shoal
and, secondly, whether those formations would entitle a State to the status
of'coastal State'. However, the first question overlaps with aspects poten-
tially excluded from the jurisdiction of the arbitral tribunal by virtue of
Article 298 UNCLOS, especially as questions of 'historic titles' over those
formations would be touched upon.^^
If the arbitral tribunal were to ever get into the matter, it might be
required to distinguish between Scarborough Shoal, on the one hand, and
the Spratly Islands, on the other, in order to decide the crucial point as to
whether it is at all possible that the PRC could be regarded a coastal State in
relation to these formations.'^^ While rocks as well as islands are accorded a
territorial sea of 12 nautical miles and a contiguous zone of up to 24 nautical
miles, only islands may additionally allow for the recognition of an EEZ and
a continental shelf ^° Yet, Article 121 UNCLOS distinguishes both categories
on the rather vague criteria of the ability "to sustain human habitation or
economic life of their own". Moreover, these same rights do not apply to
low-tide elevations, as they are not regarded as allowing for their own terri-
torial sea, and thus do not create sovereign rights for the owner.^' However,
as regards the features in Scarborough Shoal and the Spratly Islands, there
is no consensus as to whether these formations, or all or at least some of
them, constitute mere rocks, or rather islands or low-tide elevations.^^
Thus, the first preliminary question in order to decide whether the
arbitral tribunal has jurisdiction relates to the substantive question whether
the PRC can be seen with regard to those rocks or islands as a 'coastal State'
within the meaning of Article 297 UNCLOS, with a positive answer leading
to the exclusion ofjurisdiction. What is important to note, however, is that
under Article 288 paragraph 4 UNCLOS, it is the Annex VII arbitral tribunal
itself which is endowed with la compétence de la compétence to determine
78> See infra bb.

''^' Park Hee Kwon, The Law of the Sea and Northeast Asia - A Challengefor Cooperation (2000),
99-101.
«™ Ibid,s9.
^" Robert Beckman, "Tbe UN Convention on tbe Law of tbe Sea and tbe Maritime Disputes in
tbe Soutb Cbina Sea", 107 American Joumal of Intemationai Law (2013), 142,150 referring to ICJ,
Territorial and Maritime Dispute (Nicaragua v. Columbia), ICJ Reports (2012) 1, para. 140.
*^' Kwon, supra note 79,99-101.
452 The Law and Practice of International Gourts and Tribunals 12 (2013) 431-461
its own jurisdiction,^^ tbereby empowering tbe arbitral tribunal in tbe case
at band to implicitly answer tbose material questions tbat are required for
a finding on its own jurisdiction.
(c) Exceptions to tbe Coastal State-Based Exclusion of Jurisdiction

Yet, even with regard to disputes otberwise falling witbin tbe scope of tbe
automatic exclusion from UNCLOS' system of compulsory jurisdiction,
provided tbe PRC were to be considered the coastal State witbin tbe mean-
ing of Article 297 paragrapb 1 UNCLOS, be it only arguendo, tbe following
paragrapbs tbereof provide for a number of cases to be re-introduced into
tbe system of compulsory jurisdiction under UNCLOS so as to again fall
explicitly under tbe compulsory jurisdiction scheme. More specifically, the
Pbilippines may invoke Article 297 paragrapb 1 (a) or (c) UNCLOS. If tbat
were tbe case, tbe arbitral tribunal could, at least at tbe jurisdictional stage
of tbe proceedings and for the purpose of Article 297 UNCLOS, leave the
question open as to who, if anyone, has title to tbe relevant areas.
aa. Rights of Navigation

According to Article 297 paragrapb 1 (a) UNCLOS, a dispute sball be subject
to procedures provided for in Part XV Section 2 UNCLOS in case "a coastal
State acted in contravention of tbe provisions of tbis Convention in regard
to tbe freedoms and rigbts of navigation (...) or in regard to other interna-
tionally lawful uses of the sea specified in article 58".
Tbe Pbilippines argues tbat tbe PRC "promulgated a law calling for tbe
inspection, expulsion or detention of vessels 'illegally' entering tbe waters"
witbin tbe so called "nine dasb line"^'* and a number of Filipino boats were
allegedly threatened by Cbinese patrol boats in 2012 to leave tbe Soutb
Cbina Sea. Tbis could indeed lead to the jurisdiction of tbe arbitral tribunal
being excluded by way of Article 298 UNCLOS, if not otberwise, wbicb will
be furtber addressed below.
bb. Preservation of the Marine Environment

Furtbermore, Article 297 paragrapb 1 (c) UNCLOS is also relevant in
tbat it provides for the resolution of disputes provided for in Section 2 of
Part XV "when it is alleged tbat a coastal State has acted in contravention of
^ ' C. F. Amerasinghe,y!/risí/icííon oflntemational Tribunals (2003), p. 149.

**' Philippines Notification and Statement of Claim (22 January 2013), para. 5.
The Law andPractice oflntemational Courts and Tribunals J2 (2013) 431-461 453
specified international rules and standards for the protection and preserva-
tion of the marine environment (...)."
As a matter of fact, the Philippines have brought forward the claim that
the PRC is engaging in fishing endangered species such as "sea turtles, sharks
and giant clams, which are protected by both international and Philippines
law".^5 Accordingly, the arbitral tribunal is vested with Jurisdiction, albeit
a limited one ratione materiae and further subject, obviously, to a further
possible exclusion of itsjurisdiction under Article 298 UNCLOS.
3. Special Regulation with Regard to Fisheries

Finally, the Philippines' statement could be understood so as also to invoke
Article 297 paragraph 3 UNCLOS.^^ According to this provision, disputes
come within the scheme of compulsory Jurisdiction set up by Article 286
UNCLOS when the dispute concerns "the interpretation or application of
the provisions of this Convention with regard to fisheries".
Indeed, it might be argued that, by preventing Filipino fishermen from
fishing in the South China Sea, the PRC has brought about a dispute that
falls under the said provision.^^ Yet, the Tribunal would have to consider
whether the second half of this paragraph would then again exclude the
Jurisdiction of the tribunal which bars it from considering "[a]ny dispute
relating to its [the coastal State's] sovereign rights with respect to the liv-
ing resources in the exclusive economic zone or their exercise (...)." That
would in turn require determining a possible EEZ of the PRC in the Spratly
Islands and Scarborough Shoal respectively.
On the whole, it follows that it could well be argued that Article 297
UNCLOS does not apply to the PRC, provided the arbitral tribunal were to
make a finding that the PRC is not the coastal state in the sense of the pro-
vision, or that at least one of the exceptions referring the disputes again to
the compulsory Jurisdiction system of Part XV Section 2 UNCLOS is appli-
cable in the case at hand, however, restricting the scope of the dispute to
those questions that are not excluded by virtue of Article 298 UNCLOS.
85> Philippines Notification and Statement of Claim (22 January 2013), para. 21.
**"' Philippines Notification and Statement of Claim (22 January 2013), para. 3.
8''' According to newspaper reports the PRC has blocked Filipino fisherman fi-om entering
Scarborough Shoal, http://www.washingtonpost.com/business/south-china-sea-disputes-
nkorean-threats-expected-to-dominate-southeast-asia-summit-in-brunei/2oi3/o4/22/fo565i52-
abo8-11e2-9493-2B3bf26c4b4_story.html (last accessed 22.04.2013).
454 The Law and Practice oflntemationat Courts and Tribunats 12 (2013) 431-461
4. Exclusion of the Dispute by Virtue ofArticle 2g8 UNCLOS

In addition to tbe automatic exclusion of jurisdiction, as provided for in
Article 297 UNCLOS, Article 298 UNCLOS furtber enables contracting par-
ties to additionally exclude otber categories of disputes from binding tbird-
party settlement by way of a declaration, namely, as far as relevant for tbe
case at band, in particular under Article 298 paragrapb 1 (a) (i) UNCLOS as
to disputes concerning tbe interpretation or application of Articles 15, 74
and 83 relating to sea boundary delimitations, or tbose involving bistoric
bays or titles. Wben ratifying tbe Convention, tbe PRC indeed made use
of tbis possibflity and stated tbat it "does not accept any of tbe procedures
provided for in Section 2 of Part XV of tbe Convention witb respect to all tbe
categories of disputes referred to in paragrapb 1 (a) (b) and (c) of Article 298
of the Convention."
Tbis raises tbe question wbetber tbe dispute concerns one of tbe excep-
tions of Article 298 paragrapb 1 (a) UNCLOS as referred to in tbe Cbinese
declaration.
(a) Tbe Scarborougb Sboal Dispute: A Dispute Concerning tbe

Interpretation or Application of Articles 15, 74 or 83 UNCLOS?
Article 298 UNCLOS opens up tbe possibility for State parties to exclude
maritime delimitation cases from tbe ambit of compulsory jurisdiction
tbat is otberwise contemplated by UNCLOS. Because during tbe negotia-
tions over UNCLOS States could not agree in detail on tbe substantive rules
governing delimitation, it was felt to be important to be able to carve out
delimitation disputes from compulsory dispute settlements^
Tbe Pbilippines argue tbat tbe dispute over Scarborougb Sboal and tbe
Spratly Islands does not constitute a dispute as to tbe delimitation of tbe ter-
ritorial sea between States witb opposite or adjacent coasts under Article 15
UNCLOS, nor a dispute as to tbe delimitation of tbe exclusive economic
zone between States witb opposite or adjacent coasts under Article 74
UNCLOS, nor, finally, one related to tbe delimitation of tbe continental sbelf
between States witb opposite or adjacent coasts under Article 83 UNCLOS.
In tbe relief sougbt tbe Pbilippines ratber argue tbat it cannot be a matter of
delimitation because tbe features in Scarborougb Sboal and most of tbose
in tbe Spratly Islands do not constitute islands but are ratber submerged
*' Sheehan, supra note 46,166.

The Law andPractice oflntemational Courts and Tribunals 12 (2013^ 431-461 455
features or rocks which, according to Article 121 paragraph 3 UNCLOS, are,

at most, merely entitled to a 12 nautical mile territorial sea.
The PRC in turn argues in its statement that "[t]he claims for arbitration
as raised by the Philippines are essentially concerned with maritime delim-
itation between the two countries in parts of the South China Sea, and thus
inevitably involve tbe territorial sovereignty over certain relevant islands
and reefs."^^ However, in its view, such issues of territorial sovereignty "are
not the ones concerning the interpretation or apphcation of UNCL0S".3°
Indeed, the Philippines even claim that the arbitral tribunal may issue
an award declaring that the Philippines are generally entitled to "a 12 NM
Territorial Sea, a 200 M Exclusive Economic Zone and a Continental Shelf
around their territory which would include Scarborough Shoal and parts
of the Spratly Islands.^' This might however require excluding the rights of
other States that also claim such rights in the overlapping area, as the enti-
dement of an EEZ for the Philippines might in turn e contrario mean that it
is not the EEZ of another State, Le. that of the PRC. Yet, this might be part of
a delimitation claim that the PRC explicitly excluded by its declaration.
In sum, it seems to be at least plausible to argue that the claims of the
Philippines do, at least in some regard, touch upon the issue of delimita-
tion, at least with regard to their claim of an EEZ and a continental shelf At
the same time, the request for a mere determination as to whether certain
features constitute rocks or islands is not necessarily one that is to be con-
sidered as relating to sea boundary delimitations, and, thus, might not be
subject to the PRC's declaration under Article 298 UNCLOS.
(b) The Scarborough Shoal and Spratly Island Dispute as One

"Involving Historic (...) Tides"?
The possibility of excluding disputes "involving historic (...) titles" from
compulsory jurisdiction under Article 298 paragraph 1 (a) (i) UNCLOS con-
stitutes one of the most crucial issues, if not the crucial issue, in determin-
ing whether the Annex VII Arbitral Tribunal has jurisdiction to entertain
the case brougbt by tbe Philippines against the PRC with regard to the Scar-
borough Shoal and Spratly Islands. Although it is quite unclear on what
^" PRC's Statement, 26.04.2013, available at: bttp://www.fmprc.gov.cn/eng/xwfw/s25io/2535/

ti035577-shtml.
«" Ibid.
8" Philippines Notification and Statement of Claim (22 January 2013), p. 14.
456 The Law andPractice oflntemational Courts and Tribunals 72 (2073) 431-461
basis exactly the PRC is laying claim to large parts of the South China Sea, it
has made clear that it considers the South China Sea as having belonged to
it for a prolonged period of time.^^ To take one example, it constantly refers
to ancient maps indicating the nine-dash-line thereby invoking a kind of
historic title on the South China Sea or the land formations therein.^^
Hence, it is required to interpret what exactly is to be meant by the
phrase "(...) or those involving historic bays or titles (...)" in line with the
customary rules of treaty interpretation laid down in Articles 31-33 VCLT,
in particular, whether disputes which deal with other issues, such as fisher-
ies or conservation measures or with the determination of whether a cer-
tain formation constitutes a rock or an island, but which at the same time
take place ratione loci in areas with regard to which one or more of the
parties to the dispute claim historic titles, are covered ratione materiae by
the exclusion clause.
In the equally authentic French and Spanish versions of the Conven-
tion the phrase "disputes (...) involving historic (...) titles" reads as "les dif-
férends qui portent sur des (...) titres historiques"^'* respectively as "[l]as
controversias (...) relativas (...) o títulos históricos".^^ These versions, to
some extent in contrast to the English version, might be understood as lim-
iting the exclusionary effect of the provision to boundary disputes which
have claims as to historic titles at their core, in that they merely exclude
disputes that 'relate to' (portent sur) or 'pertain to' (relativas o) historical
titles. Article 298 paragraph 1 (a) (i) UNCLOS, when interpreted in line with
Article 33 VCLT, would then not exclude disputes where the existence or
non-existence of certain historic titles merely constitutes a preliminary
question, but solely those where the dispute itself. Le. the disagreement
between the parties as to a point of law or of fact, is a territorial one, the
outcome of which depends on the existence or not of historic titles. Put
otherwise, said provisions would not exclude those disputes which have
different matters such asfisheriesor conservation measures at their core.
92) JVoie Verbale of PRC, 7 May 2009, CML/18/2009.

')^) M. Miyosbi, "Cbina's 'U-Sbaped Line' Claim in tbe Soutb Cbina Sea: Any Validity Under Inter-
national Law?", 43 Ocean Development & International Law, 1-17 (1); Zbiguo Gao/Bing Bingjia,
"Tbe Nine-Dasb Line in tbe Soutb Cbina Sea: History, Status, and Implications", QS AmericanJour-
nal ofIntemational Law 2013,98-123; Keyuan, supra note 42,18.
9*) Empbasis added.
9^) Empbasis added.
The Law andPraetice oflntemational Gourts and Tribunals 72 (2073) 437-461 457
In support of sucb a somewbat more limited interpretation of tbe exclu-

sionary provision, one migbt also refer to tbe remainder of tbe provision,
namely tbe part dealing witb tbe conciliation procedure. Under Article 298
paragrapb 1 (a) (i) UNCLOS, said conciliation procedure is excluded witb
regard to "any dispute tbat necessarily involves the concurrent consideration
of any unsettled dispute conceming sovereignty or otber rigbts over conti-
nental or insular land territory". Tbis is a mucb broader formula, as demon-
strated, in particular, by tbe use of the terms 'necessarily' and 'concurrent
consideration'. Here, already the mere necessity to consider historical ter-
ritorial titles as preliminary questions would lead to the exclusion of the
Commission's jurisdiction with regard to tbose disputes.
On tbe one band, one might argue that the exclusion of tbe jurisdic-
tion of tbe Annex VII arbitral tribunal under tbe first part of Article 298
paragraph 1 (a) (i) UNCLOS ought to be broader as compared to tbat of tbe
Conciliation Commission, sucb conciliation proceedings being a 'softer'
mecbanism leading to non-binding decisions only. Thus, one might argue
tbat, if in tbis kind of proceedings tbe mere relevance of certain territorial
aspects already provide for tbe exclusion of tbe competence of tbe con-
ciliation commission to deal witb a dispute in toto, tbis also bas to apply
argumentum a majore ad minus to tbe jurisdiction of an Annex VII arbitral
tribunal leading to a binding award.
However, on the other hand, one could also argue tbat any dispute con-
ceming sovereignty was not meant to be settled by a conciliation commis-
sion due to tbe complex issues involved not being suitable for conciliation
commission proceedings, wbicb are ratber intended to reach a mutual
solution for botb parties. Only under tbe judicial contentious proceed-
ing provided for under Section 2 would those questions be resolved. Tbis
would speak in favour of understanding tbe exclusion as being broader
witb regard to tbe conciliation commission tban witb regard to compulsory
jurisdiction by ITLOS or an Annex VII arbitral tribunal.
On tbe wbole, UNCLOS' provisions dealing witb tbe compulsory dis-
pute settlement system sbould always be regarded as a balanced compro-
mise among the negotiating States to, on the one hand, have all disputes
concerning tbe law of tbe sea included, and, on tbe otber band, to bave
excluded as many disputes as possible regarding sensitive issues, especially
tbose concerning sovereign rights.^^ The exclusion of disputes involving
Adede, supra note 21, p. 37 ei sec.

458 The Law and Practice of¡ntemational Courts and Tribunals 12 (2013) 431-461
historic bays or titles was included early on during the negotiating process.
Indeed, it was already contained in a draft of the Convention in 1975 and
was never altered during the negotiations.^'' Although parties agreed that
those disputes should be excluded, it was not defined when exactly historic
bays and titles are at stake in a given case.^*
Article 298 UNCLOS aims at protecting the sovereign will of States not to
have certain disputes become a matter of dispute settlement proceedings.
Thus, byway of declaration. States parties are given the latitude to exclude
certain disputes from compulsory dispute settlement. In its recent Judg-
ment of 28 May 2013 in the case between Spain and Saint Vincent and the
Grenadines, ITLOS deniedjurisdiction arguing that the declaration of Saint
Vincent and the Grenadines made under Article 298 UNCLOS needed to be
interpreted according to the will of the declaring party because "Jurisdic-
tion exists only to the extent to which the substance of the declarations of
the two parties to a dispute coincides."^'' The Tribunal stressed that such a
declaration constitutes a unilateral act of a State Justifying putting empha-
sis, in particular, on the will of the declaring State. More specifically, ITLOS
found that the use of the word "concerning' by the declaring State ought to
be understood as referring to a broad context:'""
In the view of the Tribunal, the use of the term "concerning" in the
declaration indicates that the declaration does not extend only to
articles which expressly contain the word ""arrest" or "detention" but
to any provision of the Convention having a bearing on the arrest or
detention of vessels. This interpretation is reinforced by taking into
account the intention of Saint Vincent and the Grenadines at the
time it made tbe declaration, as evidenced by the submissions made
in the Application. From these submissions, it becomes clear that the
declaration of Saint Vincent and the Grenadines was meant to cover
^" Nordquist, supra note 47, Article 298 paragraph 298.2-3.

'8' F. Dupuy/P.-M. Dupuy, "A Legal Analysis of China's Historic Rights Claim in the South China
Sea", loj AmericanJoumal ofInternational Law (2013) 124,137. Even the ILC in its study on historic
waters and hays shied away from giving a clear answer as to what may constitute a valid claim
based on historic rights with regard to the sea; ILC, Juridical Régime of Historic Waters, Including
Historic Bays, Document A/CN.4/143, Yearbook of the International Law Commission (1962), Vol.
II, pp. 1-26.
^^' The M/V "Louisa" Case (Saint Vincent and the Grenadines v. Kingdom of Spain), Case No. 18,
Judgment of 28 May 2013, para. 81.
•O") /6<ct, para. 82.
The Law and ¡factice ofLntemationat Courts and Tribunats 12 (2013) 431-461 459
allclaims connectedwlth the arrest or detention ofltsvessels. On tbe basis

of tbe foregoing, tbe Tribunal concludes tbat tbe narrow interpretation
of tbe declaration of Saint Vincent and tbe Grenadines as advanced by
Spain is not tenable.'"'
Yet, in comparison to tbe general declaration of Saint Vincent and tbe

Grenadines, PRC's declaration refers to tbe very wording of tbe provision
of UNCLOS, tbus requiring an objective assessment of tbe contents of
Article 298 UNCLOS and not only an interpretation of tbe wfll of tbe PRC.
In fact, a limited interpretation of tbe exclusionary effect of Article 298
paragraph 1 (a) (i) UNCLOS would rather be in line witb tbe overafl struc-
ture of Part XV of the Convention, compulsory tbird-party settlement being
tbe rule and non-binding mecbanisms being tbe exception.
A narrow reading of tbe exclusion clause migbt also be warranted by a
comparison witb tbe jurisprudence of the ICJ regarding its jurisdiction. The
ICJ held, in particular, that e.g. reservations to declarations under Article 36
paragraph 2 ICJ Statute are not to be narrowly construed since tbey do not
ex postfacto limit an otberwise pre-existing jurisdiction, sucb jurisdiction
itself being based on tbis very declaration and the accompanying reserva-
tions. In contrast thereto. Article 298 paragrapb 1 (a) (i) UNCLOS bas to be
read in ligbt of tbe principle of compulsory jurisdiction underlying UNCLOS
generally and its Article 286 more specifically.
Finally, wbile tbe first alternative of Article 298 paragrapb l (a) (i) refers
to disputes 'concerning' certain questions wbicb in line witb tbe ITLOS
jurisprudence just referred to is to be broadly construed, tbe second alter-
native tbereof uses more narrow language. Le. it merely excludes disputes
'involving'historic titles.
Yet, one of tbe problems tbe Pbilippines' claim is facing is tbat it is less
tban clear wbetber tbe PRC solely claims sovereignty over tbe features
witbin tbe so called nine-dasb line, or wbetber, instead, it claims tbe Soutb
Cbina Sea as a 'bistoric water' in its entirety.'"^ As a matter of fact, it seems
to make quite an important difference wbetber to interpret Cbina's nine-
dasb line claim as one of a bistoric title over land or over sea. Tbis is due to
'"" ¡bid., para. 83. Emphasis added.

102) pof a goojj overview of the different possibilities of interpretation of the PRC's position, see
F. Dupuy/P.-M. Dupuy, supra note 98, 124-141.
460 The Law andPractice oflntemational Courts and Tribunals 12 (2013) 431-461
the fact that, if the claimed historic rights concern the sea itself, virtually all
claims by the Philippines would be excluded because any of the questions
raised would inevitably touch upon the PRC's historic rights over the sea.
Yet, the PRC in its statement itself refers to the important principle that 'the
land dominates the sea' and this has led to the interpretation that the PRC's
claim is a claim of sovereignty over the land features and formations in the
South China Sea.
If the latter is true, and if indeed Article 298 UNCLOS was not intended
to exclude all disputes that take place in waters where historic titles are
claimed but rather merely disputes that would have to decide the question
whether the historic title is valid as such, one could argue that at least certain
aspects of the Philippines' claims can be answered by the arbitral tribunal
without touching upon the issue of tbe validity of the PRC's historic tides.
This interpretation would not exclude a claim, e.g. on the determination
of whether certain formations forming part of the Spratly Islands and the
Scarborough Shoal are rocks or islands according to Article 121 paragraph 3
UNCLOS. Such determination would at least settle the question of whether
these 'formations' are entitled to an EEZ of their own or only to a territo-
rial sea of 12 nautical miles under UNCLOS. On the other hand, already the
question of what kind of historic rights the PRC might be entitled to claim
with regard to these areas eventually superseding the legal regime under
UNCLOS might be a dispute 'concerning historic titles', speaking again in
favour of disregarding the entire claim of the Philippines.
III. Conclusion
The Arbitral Tribunal constituted to decide the Philippines-China dispute
over the South China Sea faces one of the most, if not the most, complicated
case ever brought under UNCLOS with regard to its jurisdiction, let alone
the merits of the case. Legal arguments speak in favour as well as against the
tribunal finding it has jurisdiction in the case between the Philippines and
the PRC over Scarborough Shoal and the Spratly Islands. From a political
point of view, both solutions are not risk free. The ICJ faced similar prob-
lems wben it had to decide the Nicaragua case. In that case, after the ICJ
approved jurisdiction against tbe strong opposition of the US, the US with-
drew its declaration of acceptance of the Court's compulsory jurisdiction.
The Law and Practice of¡ntemational Courts and Tribunals 72 (2075) 431-461 461
ITLOS and arbitral tribunals constituted under UNCLOS have so far been
careful in accepting jurisdiction. For the further development of interna-
tional law, however, it is important to empower intemational tribunals to
peacefully settle disputes between States and to prove that such tribunals
will not shy away from accepting and resolving disputes no matter how
difficult and complicated they are. Nonetheless, in order for States to
accept their jurisdiction, those tribunals should not overstretch their man-
date either.
Moreover, the role of the PRC in international law, in particular, is not
yet fixed. Intemational law, as it has developed over the last few centu-
ries, has performed well in respecting and including the views of impor-
tant players. Otherwise, it would eventually risk losing its important aim
to regulate inter-State relationships all over the world. Central institutions
have already faced the allegation that they stand in strong western tradi-
tion and do not adequately reflect the views and the understandings of
different traditions. The Annex VII arbitral tribunal and its members thus
must carefully balance the arguments concerning this rather open question
and adequately reason any decision they eventually render.
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MARTINUS

NIJHOFF The Law and Practice of

Navigating Through Narrow Jurisdictional Straits:

Professor Dr. Andreas Zimmermann

Jelena Bäumler, LLM.

Í3 Koninklijke Brill NV, Leiden, 2013 1)01:1Ü.U63/15718034-12341266

mechanism of compulsory jurisdiction under UNCLOS that was ratified by

IL UNCLOS and the Philippines - PRC South China Sea Dispute

A. Choice ofForum and Applicable Rules

B. Annex VII UNCLOS and Non-Participation by One Party

Article 9 Annex VII UNCLOS.^' In mutatis mutandis identical terms as tbose

in the provisional character of the decision in the former case.^^ To put it

C. Possible Existence of an Agreement between the Parties Precluding

1. "Declaration on the Conduct of Parties in the South China Sea":

'*'* See PRC's statements, supra note 39.

2. Exclusion ofAlternative Third-Party Settlement Procedures?

^^' VCLT Commentary, supra note 50, Art. 2, paras. 26-27.

exclusion to be express in nature, given tbe lacunae inberent in tbe system

3. Failure of Negotiations providedfor under the "Declaration on the

5^' See PRC's statements, supra note 39.

taken into consideration.^^ The main question is whether a deadlock has

D. Limits of Jurisdiction of the Annex VII UNCLOS Arbitral Tribunal under

where States are free to submit themselves to tbe Court's Jurisdiction, or

2. Possible ipso facto Exclusion offurisdiction under Article 2gj Paragraph

™ C. Tomuschat in Zimmermann et al. (ed.), supra note 19, Art. 36 MN 72.

73) Wolfrum, supra note 68, p. 472.

jurisdiction on the matter, would require the determination of which State

78> See infra bb.

(c) Exceptions to tbe Coastal State-Based Exclusion of Jurisdiction

aa. Rights of Navigation

bb. Preservation of the Marine Environment

^ ' C. F. Amerasinghe,y!/risí/icííon oflntemational Tribunals (2003), p. 149.

3. Special Regulation with Regard to Fisheries

4. Exclusion of the Dispute by Virtue ofArticle 2g8 UNCLOS

(a) Tbe Scarborougb Sboal Dispute: A Dispute Concerning tbe

*' Sheehan, supra note 46,166.

features or rocks which, according to Article 121 paragraph 3 UNCLOS, are,

(b) The Scarborough Shoal and Spratly Island Dispute as One

^" PRC's Statement, 26.04.2013, available at: bttp://www.fmprc.gov.cn/eng/xwfw/s25io/2535/

92) JVoie Verbale of PRC, 7 May 2009, CML/18/2009.

In support of sucb a somewbat more limited interpretation of tbe exclu-

Adede, supra note 21, p. 37 ei sec.

^" Nordquist, supra note 47, Article 298 paragraph 298.2-3.

allclaims connectedwlth the arrest or detention ofltsvessels. On tbe basis

Yet, in comparison to tbe general declaration of Saint Vincent and tbe

'"" ¡bid., para. 83. Emphasis added.

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'' See PRC's statements, supra note 39.