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

by Andrew Gou

[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.

http://opiniojuris.org/2015/11/10/guest-post-the-south-china-sea-arbitral-tribunal-finds-that-a-white-horse-is-not-a-horse-a-delimitation-exception-perspective/

19 Responses

  1. This reads like a piece of Chinese Government propaganda.

    The tribunal found against China. Move on.

  2. I really like the author’s story of horse. It accurately captures the Philippines tribunal’s approach to the maritime entitlement and delimitation distinction.

  3. The author deals the tribunal the greatest blow so far by citing an established and wise criterion set by the Chagos tribunal, i.e. if the decision on entitlement will necessarily affect the delimitation, then the question presented before the tribunal is a delimitation-related question, and thus is well beyond the jurisdiction of the tribunal.

    I simply can not understand the logic and reasoning of the Philippines tribunal’s purposefully detracting from established criterion and pure legal slight.

  4. The author’s White Horse fable reminds me of another Indian fable the Blind Men and an Elephant.
    It was my good wish that the tribunal as the gatekeeper of rule of law would not be blind to the nature of the dispute btw Philippines and China and it is regrettable that it is. So be it……

  5. Excellent and very solid argument against the Permanent Court of Arbitration’s jurisdictional ruling in the Philippines v. PRC maritime case.. PCA should read this.

  6. I wonder the why the ccp don’t send somebody to argue its stand on the matter. Quite suspect, I guess everybody would agree.

    Just a flick through this article – Entitlement and Delimitation are two (2) entirely different words. They are not the same, even the author shows this. What he is trying to argue is that the former is subsumed in the latter. Obviously so china can get away with its exception declaration. I do not agree.

    How can you delimit if you do not know the entitlement? However, you can determine entitlement even without knowing the delimitation. This should be obvious. The author’s argument is flawed to benefit china. The arguments he presents are when the entitlements are determined or obvious, like two coastal states that have overlapping 200nm EEZ’s. In such a case the coastline of each state is determinative of the delimitation– because the entitlements is already determined or apparent.

    Besides, it is only jurisdiction that was determined. Judging on the merits of the case can still consider the author’s opinion, WHICH IS WHY IT IS SUSPECT THAT THE CCP DOES NOT SEND SOMEONE TO ARGUE.

    Nice try Andrew. However, either of our two cents on the matter is just an opinion as it is the court that will decide it in the end. It is just the way the justice system you’ve studied works. No no no, I do not contend that it is a perfect system, just saying what it is.

  7. Thank you for the effort, but Andrew fails to distinguish between those issues that are permissible under article 298, and those that are not. It may come to pass that the tribunal does not assert jurisdiction over the issue of the dashed line claim, but the tribunal specifically accepted jurisdiction over 7 issues that have nothing to do with delimitation. The other 8 issues are reserved, and the tribunal may not assert jurisdiction over them.
    http://thediplomat.com/2015/11/a-legal-analysis-of-the-philippine-china-arbitration-ruling/#disqus_thread
    Finally, China could have (and should have) made these arguments to the tribunal.

  8. Glad to have some discussions. I can understand that there are different views, as China disputes with the Philippines. I respect the right to air different views. The Tribunal also has such right, but it has the duty to have some reasoning before reaching its conclusions or decisions.

    With respect to entitlement disputes, the Tribunal has to answer at least two questions:

    First, the Tribunal needs to clarify the relationship between entitlement and delimitation. It is correct to say that the relationship is two sides of a coin. On one hand, entitlement is not identical with delimitation; on the other hand, they are closely related. In order to separate the two sides of the coin, the Tribunal cannot simply agree with the Philippines and bypass the established jurisprudence that “the first step in any delimitation is to determine whether there are entitlements and whether they overlap.” Whether there are entitlements!

    Second, the Tribunal needs to interpret the delimitation exception, including the words “concerning” and “relating to”. If the Tribunal had touched upon the ordinary meaning of these words, or it had followed the Chagos method or its own criterion with respect to territorial sovereignty disputes, it will find that disputes on entitlement apparently have bearings and consequences on delimitation. It is pity that the Tribunal applies the delimitation exception narrowly without interpretation.

    Text of a treaty cannot be neglected easily, even such small words as “concerning” and “relating to”. It is notable that, in the UNCLOS, the words “military activities” and “law enforcement activities” are not used in other Articles than Article 298 exceptions to compulsory procedures. If “concerning” is interpreted restrictively without the meaning of “having a bearing on”, there will be neither “disputes concerning military activities”, nor “disputes concerning law enforcement activities”. The Tribunal’s award eventually deletes the delimitation exception, the military activity exception and the law enforcement from text of the UNCLOS. It is a revision of the Convention, without reading into the text.

  9. I have thought that China should not follow the non-appearance practice of France, Russia, India, Turkey, Iceland and others. I have thought that China should appear before the Tribunal, or at least as the U.S did in the Military Activities — appeared at the jurisdiction stage and disappeared when the ICJ did not accept the American arguments. I cannot fully understand China’s non-appearance. But I realize a possible reason relating to the delimitation exception — the relationship between unilateral right to initiate arbitration and the right to exclude compulsory procedures according to the Convention.

    Article 299 stipulates that, in case a party has declared that it does not accept compulsory procedures with respect to certain categories of disputes, such disputes may be submitted to compulsory procedures only by agreement of the parties to the dispute. It is clear from the Convention that the unilateral right to initiate arbitration is subject to the exceptions. Thus it seems that, when China says it does not accept the arbitration initiated by the Philippines, it challenges not only the jurisdiction of the Tribunal, but also the Philippine’s right to initiate arbitration unilaterally. The two matters are related, but not identical. The logic might be that, no right to initiate arbitration, no need to accept arbitration. I am not sure whether it is in the mind of China. But it is a pity that the Tribunal does not touch the relationship between the two matters.

    Yes, it is for the Tribunal to decide its jurisdiction. It is the arbitral power, and the arbitral duty. In case of non-appearance, the Tribunal must attain the same degree of certainty as in any other case. And “there is no burden of proof to be discharged in the matter of jurisdiction.” However the transcript of July hearing indicates that the Tribunal has been asking the Philippines lots of questions on jurisdiction. It explains why the Tribunal in the award simply reiterates the view of the Philippines – the Tribunal discharges its duty in establishing jurisdiction to the Philippines and relies on the answers of the latter. The 3 paragraphs on delimitation exception contain no reasoning, not to speak of the Tribunal’s own reasoning; there is just the answer of the Philippines. The Tribunal simply fails to fulfill the duty to establish jurisdiction objectively.

  10. ““the first step in any delimitation is to determine whether there are entitlements and whether they overlap.” Whether there are entitlements!”

    The logic for the finding of jurisdiction is there is no need to delimit if upon determining the entitlements there is no overlap(no case, no dispute). This drives the point that the two are separate exercises, although delimitation stems from entitlements. Entitlement can stand alone, delimitation cannot. The words “concerning” and “relating to” has no bearing and is moot and academic at best.

    The case was to determine the entitlements of the features and only the entitlements. No question was raised on the delimitation, hence the exception does not apply, Unclos 298 does not apply. The Philippines is asking the court to determine what the entitlements are for each feature and is not asking the court to delimit maritime zones of opposing coasts, although I suspect that it would like to – if not for the exception.

    In the end the court’s decision will only declare the entitlements of the features, it will not touch on sovereignty or delimitation. Now, this is definitely not covered in the exception consequently the court has jurisdiction and the duty to hear and adjudicate case.

    For Art 299, based on the reasoning above it is moot and academic as well. If the case does not fall within the exception (and the court agreed) then there is no challenge to unilaterally initiate the case. It is all perfectly legal.

    China’s objections have no basis in logic. Andrew has a better argument.

    “However the transcript of July hearing indicates that the Tribunal has been asking the Philippines lots of questions on jurisdiction. It explains why the Tribunal in the award simply reiterates the view of the Philippines ”

    I guess it may be that the Philippines has presented a well argued, legally sound and legally well supported precedent argument for jurisdiction. The court simply agrees. I think it a waste of time for the court for some other legal reasoning than that of the Philippines to justify it has jurisdiction.

    I am glad you agree Andrew. If China did appear and opposed jurisdiction then I do believe the counter arguments of China will be mentioned in the decision for jurisdiction and assuming they will rule in the same way will strike down each argument that is not supported by legal precedents. I do stress that I am assuming. Then the decision would be more to what you are used to reading Andrew. This is simply just a case that is similar to one in absentia. I say this coz China can still appear before the court if it wants to.

  11. This is a very well-reasoned piece of work.

    The difference between “concerning” and “relating to” is an excellent point and should not be neglected in the context of treaty interpretation.

    I do not see the point in discussing what would have been different if China had chosen to participate in the arbitral proceeding. It is very clear from China MOF’s press release that they will not participate. That’s simply the reality. As Andrew pointed out, this is not the first time or the only instance where a State has chosen not to participate. I think it would be interesting for us academics to analyze the reasoning of the arbitral tribunals/ICJ in all awards/judgments issued in cases with an absent party. Looking at those precedents, could this Tribunal have handled China’s non-participation differently and in a more balanced manner?

  12. It is very pity that the tribunal put little explanation on the question that why matter regarding China’s entitlement in South China Sea can be adjudicated despite of the delimitation exception provided in Article 298(a) of the UNCLOS.
    Yes, delimitation and entitlement do have different meanings, simply because they are two different words. But this is not a right way for a lawyer to seriously and sincerely interpret an carefully negotiated Convention that tries to take consideration of all negotiators’ concern. What really make sense is the purpose of the delimitation exception in Article 298(a).
    The very purpose and essence of delimitation case for each party is to gain sea area to the most extent by letting the court recognize all or most of its claim as lawful, just, fair and practicable. It involves rebutting the legality and fairness etc. of the other’s claim. All of these need to be done by review in merits and evaluation of each claim by the court. And it could result in a line prescribed as boundary line or, theoretically, some description or prescription indicting the entitlement of each party to part or all of the sea area claimed by both parties, based on which the parties could continue to solve the issue.
    Article 298(a) surly reflects that some negotiating States of the UNCLOS didn’t like to have their claim, which may involve complex historical or legal background, reviewed, evaluated or decided by a compulsory mechanism. And as such review and evaluation could only, normally, been done in “disputes … relating to sea boundary delimitation, or those involving historic bays or titles”. For those States, the exception was surely the safeguard for them to be parties to the Convention. This understanding is evident with the fact that there are no clauses in the Convention could read or interpreted as against it.
    If one is not allowed to use a court to adjudicate overlapping claims and decide, by a boundary line or something else, to which extent the claim of each party could survive, it is ridiculous that one is otherwise allowed to use a court simply adjudicate the legality of the other’s claim so as to prove that claim could not survive at all. In fact, the latter case is one of the core essence of a delimitation case and is definitely the situation that the States want to avoid by counting on the delimitation exception in Article 298(a).
    The award goes against the ideas of the founders of the Convention. It shows us a future that delimitation case is not necessary, because to achieve the same purpose or better result, you could simply make up a case about the legality of other’s claim or entitlement and gain all or most of the overlapping sea area by defeating all or most of the legality.

  13. “If one is not allowed to use a court to adjudicate overlapping claims and decide, by a boundary line or something else, to which extent the claim of each party could survive, it is ridiculous that one is otherwise allowed to use a court simply adjudicate the legality of the other’s claim so as to prove that claim could not survive at all.”

    This assertion is non-sequitur. It does not follow. Firstly, entitlement has to exist initially to even consider delimitation. Like I have said what if when the entitlement is determined and we find out there is no overlap in maritime zones, there would be no case which makes the argument above devoid of logic. Art 298a clearly refers to a situation wherein a land mass’ or an island’s ownership or sovereignty is already settled or not in questioned. It is ONLY in this situation wherein the state that has an overlap can invoke the exception to apply.

    “it is ridiculous that one is otherwise allowed to use a court simply adjudicate the legality of the other’s claim” – It may be ridiculous indeed if sovereignty and/or entitlement is already determined. I do say that it is definitely not ridiculous to ask a court to examine the validity of a claim. WCH’s argument is definitely based on the so called “indisputable sovereignty” of China which is a farce in my opinion. Making a point based on that (IS) already falls flat of logic when construing Art 298a. The truth is no other country recognizes this “indisputable sovereignty”. Which bolsters the reasoning that Art 298a explicitly recognizes the need to give a state the facility to question the other state’s claim. Otherwise, Art 298a could be used to as a shield or shelter for those that make fallacious and illegal claims, or simply, was quick on his feet and made the exception as soon as he could…….such a situation without any recourse in law is absolutely absurd. The law pursues truth and justice, not opportunism.

    The law cannot be used to make right what is wrong. The law should be construed according to the spirit that liveth than by the letter that killeth.

  14. Let’s forget all academic vacabularies. The truth is the South China Sea is NOT china sea, the Indian ocean is NOT India’s ocean! All chinese men said are false. Ancien chines said: ‘a white horse was not a horse’, new chinese (Dang): a white or black cat is a cat’. Those are Chinese folktales.

  15. Well written and well argued! All the submissions of the Philippines indeed have a bearing on the issue of maritime delimitation, and the arbitral tribunal erred in finding its jurisdiction over the case. A great job, Andrew!

  16. Very interesting and enlightening! After reading the post and discussions, I can easily understand Andrew’s logic and his disagreement with the award. I cannot figure out how a white horse is not a horse….

  17. Good arguement,well reasoning and quite convincing. The Arbitral tribunal would better read this. As the gatekeeper of the UNCLOS,the Tribunal shall ensure the same degree of certainty even in the absence of one party.The linkage between entitlement and delimitation is obvious. Though diversified views raised in the posts and discussions, no one denied this. As Jose Rizal said in her post,”How can you delimit if you do not know the entitlement?”, it also indicates her recognition that the entitlement has a bearing on delimitation. I don’t understand why the tribunal deviated from the methods and criteria established by the Chargos case.

  18. Some brief response after another busy week.
    Professor Jose Rizal:The words “concerning” and “relating to” has no bearing and is moot and academic at best.

    I cannot agree that the text of treaty is merely academic. The Tribunal has to duty to interpret before reaching conclusions and making decisions. And according to VCLT, treaty shall be interpreted in good faith—to give the terms their fullest effect as far as possible. Similarly, I cannot agree that Article 299 is “moot and academic as well”.

    Professor Jose Rizal:I am glad you agree Andrew.

    Dear professor, I will not agree with something before I find it convincing. I think the language in my post and response is clear. I don’t want to be misunderstood. I don’t want my readers be misled. That is not amusing. What I have said is as follows.
    “I have thought that China should not follow the non-appearance practice of France, Russia, India, Turkey, Iceland and others. I have thought that China should appear before the Tribunal, or at least as the U.S did in the Military Activities — appeared at the jurisdiction stage and disappeared when the ICJ did not accept the American arguments. I cannot fully understand China’s non-appearance. But I realize a possible reason relating to the delimitation exception — the relationship between unilateral right to initiate arbitration and the right to exclude compulsory procedures according to the Convention.”

    I am glad to see something longer than the three paragraphs in the Tribunal’s award. But I will not response further until there is added argument that indicate how to separate two sides of a coin, or how a white horse is not a horse, or how a white cat is not a cat.

  19. Differing views indeed Professor Andrew. I agree, we will be just making opinions on the matter, best to wait for more pronouncements by the court. That way, there will some changes to what we bring to the discussion.

    I respect your point of view as you are entitled to it. However, my point of view is the PH is seeking a clarification(something the ccp dread to do) of the entitlements. No Delimitation is being asked. Again, no delimitatiion is being asked to be done. This is because the ccp has taken refuge in the exception. (It would have been great if there was no exception and the whole thing can be adjugded and all this so called tension would not exist in the first place.) Hence, there is no bar to the jurisdiction of the tribunal. It is merely being asked to interpret UNCLOS which is why it exists in the first place, to interpret UNCLOS. A finding that a feature is not entitled to an EEZ is not, I repeat is not delimitation. Saying it is one and the same is simply being disengenous. If a feature is declared not capabale of appropriation then it becomes part of the seabed……..delimitation then becomes irrelevant. Hiding behind the delimitation exception in order to prevent a finding of the features’ entitlement (which is not delimiation in and of itself) is the height of lack of good faith.

    My apologies, when I said “I am glad you agree Andrew” I meant in relation to your quoted statement. “I have thought that China should not follow the non-appearance practice of France, Russia, India, Turkey, Iceland and others. I have thought that China should appear before the Tribunal, or at least as the U.S did in the Military Activities — appeared at the jurisdiction stage and disappeared when the ICJ did not accept the American arguments. I cannot fully understand China’s non-appearance. But I realize a possible reason relating to the delimitation exception — the relationship between unilateral right to initiate arbitration and the right to exclude compulsory procedures according to the Convention.” Which….correct me if I am wrong you would’ve preferred for the ccp to appear in the juridictional hearings.

    However, till the next pronouncements.

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