Guest Post: The South China Sea Arbitral Tribunal Finds that A White Horse Is Not a Horse–A Delimitation Exception Perspective

[Andrew Gou is an Associate Professor at Jilin University. A translation of this post is also being circulated in Chinese via wechat, and that can be found here.]

Once upon a time, a man was traveling with a white horse. They were stopped at the entrance to town, for the town had a “no horses allowed” rule. The man argued that a white horse was not a horse, for white horse was a new concept defined by both the concepts of white and of horse, and thus different from the original concept of horse. However, the gatekeeper insisted that the white horse was still a horse and should consequently be excluded from the town. The white horse story highlights the importance of the identification of the subject matter to the application of rules. Even for such simple rule as “no horse allowed”, identifying the true subject matter is inevitable.

A key aspect of the ongoing South China Sea arbitration is to identify whether the submissions fall within the delimitation exception in the UNCLOS and China’s declaration under the exception: China argues yes, while the Philippines disagrees. On 29 October, the Arbitral Tribunal delivered its award on jurisdiction. Issues relating to delimitation exception are addressed briefly in paragraphs 155-157. The Tribunal states that it is “not convinced” by China; it considers that a dispute concerning maritime entitlement is distinct from a dispute concerning the delimitation; the Philippines has not requested the Tribunal to delimit, and the Tribunal will not effect the delimitation of any boundary. Then in paragraphs 397-412 titled “[t]he Tribunal’s conclusions on its jurisdiction”, the Tribunal concludes that 14 submissions of the Philippines do not concern maritime delimitation.

I respectfully disagree with the award. In particular, I disagree with the manners in which the Tribunal reaches its conclusions on the delimitation exception.

Basic understanding of the delimitation exception

Article 298.1(a) of the UNCLOS provides that a State may declare that it does not accept compulsory procedures with respect to “disputes concerning the interpretation or application of Articles 15, 74 and 83 relating to sea boundary delimitations”. In a recent article of mine (paras. 7-37), I tried to interpret the exception in accordance with Article 31 of the VCLT. Some basic findings are as follows:

First, delimitation is a process, and the term delimitation in the exception shall be understood as such. “The task of delimitation consists in resolving the overlapping claims” (Maritime Delimitation in the Black Sea, para. 77), which indicates that delimitation is a process of identifying, weighing and effecting competing claims, not only the final determination of the boundary line.

Second, according to their ordinary meaning, the good faith principle and relevant case law, the terms relating to and concerning in the language of the delimitation exception shall be interpreted non-restrictively. They carry the meaning of on and connected with, or having a bearing on.

Thus, the delimitation exception covers not only disputes on the determination of sea boundaries but also disputes having a bearing on the entire delimitation process. With an Article 298.1(a) declaration, the UNCLOS compulsory procedures shall not apply to those disputes.

The Philippines has wrongly specified the nature of the disputes

My article (paras. 73-100) also examines the Philippines’ submissions, and concludes that each of them has a bearing on delimitation and is excluded from arbitration by the declaration of China.

For instance, the Philippines asks the Tribunal to declare that China’s maritime claims based on its “nine dash line” are inconsistent with the UNCLOS and therefore invalid (award, paras. 4, 99). Apparently the Philippines is of the view that the line represents China’s maritime claims. If the view is correct, then disputes on the line are typically disputes on overlapping claims: they arose only when the Philippines raised maritime claims overlapping with China’s; they could be settled only in the process of delimitation. If the Philippines’ view is not correct, then it must be proved that there exists a dispute concerning the interpretation and application of the UNCLOS; otherwise, the Tribunal will have no jurisdiction.

In another instance, the Philippines requests the Tribunal to determine whether certain maritime features in the South China Sea are islands, low tide elevations or submerged banks (award, paras. 5, 99). As Kwiatkowska and Soons argue, the definition of a maritime feature “forms an inherent part” of delimitation, and it “will not give rise to controversies unless such delimitation is in dispute.” (Entitlement to Maritime Areas of Rocks, at 181) Similarly, Klein argues that the status of islands is “inherently related to maritime delimitation” and that it should be excluded from compulsory procedures (Dispute Settlement in the UNCLOS, at 276). By requesting the Tribunal to clarify the status of features, the Philippines has submitted disputes on the maritime entitlement. And the relationship between entitlement and delimitation is well established — “the first step in any delimitation is to determine whether there are entitlements and whether they overlap.” (Bangladesh v. Myanmar, para. 397; Bardabos/Trinidad and Tobago, para. 224) Thus arbitrate those submissions will address the first step in delimitation.

In initiating the arbitration, the Philippines ignores some important legal issues with respect to the delimitation exception. It omits the terms concerning and relating to in the text of the exception. It overlooks the jurisprudence that the task of delimitation involves resolving overlapping claims, and denies that delimitation is a process. Also it disregards jurisprudence that establishes entitlement as the first step of any delimitation. With all this negligence, the Philippines has wrongly specify nature of the disputes, just like claiming that a white horse is not a horse.

The Tribunal has subjectively failed to fulfill its duty

For the foregoing reasons, I respectfully disagree with the Tribunal’s conclusions that the Philippines’ submissions do not relate to delimitation. But the fatal mistake is how the conclusions are reached.

The Tribunal ought to have interpreted Article 298.1(a) before applying the Article to check whether submissions concern delimitation. Such interpretation is particularly important because of the strong disputes and absence of authoritative understanding in this respect. Regrettably, there is no reading into the text or context of that Article.

The Tribunal ought to have applied some methods in characterizing real dispute. In the Chagos Marine Protected Area, the real dispute has been identified by examining the consequences of endorsing the claims (Chagos award, paras. 211, 212). If the Tribunal applied the Chagos method, it would have found that endorsing the Philippines’ claims has definite consequences/bearings on the delimitation. In deciding whether the submissions relate to territorial sovereignty, the Tribunal has considered whether its decision will advance or detract from either party’s claims (award, para.153). If the Tribunal applied the same criterion, it would have found that the Philippines apparently intend to take advantage of its decision in the delimitation. Unfortunately, with respect to the delimitation exception, there is neither method nor criterion.

The Tribunal ought to have examined the Philippines’ submissions one by one, and give its reasoning before concluding whether each submission relates to delimitation. The Tribunal has a few sentences on submissions relating to the status of maritime features: it rephrases the position of the Philippines that entitlement is distinct from delimitation (transcript of hearing on 8 July, p. 40), but remains silent on the established jurisprudence that the first step in any delimitation is to determine entitlements. For the rest of its conclusions on delimitation exception, there is no reasoning at all.

The Tribunal has consequently failed to fulfill its duty to properly ascertain whether it has jurisdiction. It either expresses its view, or reiterates the Philippines’ view. With no interpretation, no method, no reasoning and with the incomplete examination, it concludes that 14 submissions of the Philippines do not relate to delimitation. Conclusions thus reached are arbitrary rather than objective. Any decision based on such conclusions, jurisdictional or on the merits, is not convincing.

According to Article 296 of the UNCLOS, the Tribunal’s decision shall be final. Thus it is a pity that the Tribunal lost the opportunity to further reflect on issues relevant to the delimitation exception. Meanwhile, also according to Article 296, the Tribunal’s decision shall have no binding force except “in respect of that particular dispute”. Because the Tribunal states time and again that the submissions do not concern territorial sovereignty or delimitation, it is logical to conclude that any decision made under such preconditions shall have no implication for resolving territorial sovereignty and delimitation disputes. Such decisions cannot settle the real disputes in the South China Sea, nor can they be used in resolving these disputes. Then what is the value of such decisions and of the arbitration?

In short, when the Philippines claims that a white horse is not a horse, the Tribunal fails to act as a gatekeeper of the UNCLOS, as a treaty interpreter or a dispute resolver.