Reflections on the South China Sea arbitration rulings.

• Author: Keith, Kenneth
• Position: Philippines v. China case under the UN Convention on the Law of the Sea

Sir Kenneth Keith comments on the international arbitral tribunal's recent awards in the case brought against China by the Philippines.

The 600-plus pages of the international arbitral tribunal's two awards have already produced many pages of commentary, mostly on the substance of the awards and a wider range of issues. The awards are also to be read with the very extensive pleadings filed by the Philippines, the reports from experts which the tribunal sought and the less formal documents prepared before and after by Chinese officials. The tribunal, as it says, in accordance with the practice of other international courts and tribunals, took account of those Chinese statements that were available to it.

I will emphasise the methods of the settlement of disputes rather than the substantive issues. To begin, I urge care not to be trapped bywords. 'Settlement' suggests that the dispute--I come back to that word below--is brought to an end. But that will not necessarily be so. One outcome of a process, even of litigation, as in many Treaty of Waitangi cases, may be to create or reinforce mechanisms for the management of the relationship or the resource in issue or both. That may particularly be so in respect of issues arising between states. For instance, the International Court of Justice (ICJ), in a case between Argentina and Uruguay relating to a pulp and paper mill being built on the Uruguayan bank of the River Uruguay, highlighted the on-going obligation of the two states to co-operate with each other to achieve the object and purpose of the statute governing the use of the river. It noted that the parties had a long standing and effective tradition of co-operation and co-ordination through the Administrative Commission of the River Uruguay.

The significance of the on-going relationship is not necessarily limited to neighbouring states, as appears from the recommendation of the tribunal in the Rainbow Warrior case to France and New Zealand to set up a fund to promote close and friendly relations between the citizens of the two countries. That recommendation, accepted by the two governments, was intended to assist them in putting an end to 'the present unhappy affair', 'cette affaire douloureuse', in the words of the French member of that tribunal.

Consider next the word 'dispute'. How is the dispute to be defined? What might be included, or excluded? Is it sometimes better to think of 'situations' or 'matters', words used in the UN Charter, as well as 'dispute'? The definition of the dispute or the disputes in the South China Sea arbitration was a critical matter in the proceeding. I will come back to it. A closely related matter concerns the basis on which the dispute, matter or situation is to be resolved or handled. The earlier ruling in the Rainbow Warrior case, the one given by the UN secretary-general, was to be on an equitable and principled basis and his ruling is essentially unreasoned. By contrast, the later arbitration was based on the relevant agreements and international law and produced a lengthy award and separate opinion extending to 70 pages.

If, to take a further step, the matter is resolved by agreement alone, the basis for the settlement may not be made explicit. To go back over 50 years, consider the Antarctic Treaty, which in terms of the definition of the dispute on the matter, puts to one side issues of sovereignty, a matter which the United Kingdom had tried to bring before the International Court of Justice some years earlier against Argentina and Chile, but they did not agree. They had not consented to the jurisdiction of the court over such matters. I will make a brief reference to that treaty and the system supporting it later.

That requirement of consent brings me to the 1982 United Nations Convention on the Law of the Sea (UNCLOS). In its preamble the state parties declare their desire to settle all issues relating to the law of the sea and note that developments since the 1958 and 1960 conferences on the law of the sea have accentuated the need for a new and generally acceptable convention. The changes in the law over just those twenty years were huge. The proposal of 1960 for a six-mile territorial sea and a six-mile fishing zone, which was narrowly rejected by just one vote, had been put in real doubt by the early 1970s, for instance in International Court of Justice proceedings brought by the United Kingdom and West Germany against Iceland's 50-mile zone.

Widening claims

As early as the mid-1970s, a 200-mile exclusive economic zone was being claimed by many states, including New Zealand, and being recognised by distant fishing countries such as Japan, Korea and the Soviet Union. Much wider rights over the continental shelf and its resources were also being claimed and recognised as technology developed and regimes were being worked out for the deep sea bed, archipelagos, reefs, rocks and islands, a number of which were in issue in the current case. Those involved in preparing the text of the UNCLOS, with its much more extensive rights of coastal states and other complex features, many written in open ended terms, realised that a robust system for resolving disputes under the convention would be needed.

That had not been achieved in 1958 when all that was adopted, separate from the four substantive conventions, was an optional protocol giving the International Court of Justice jurisdiction over disputes arising under the four conventions. Only about 30 states became party to that protocol before it was effectively superseded and it was never invoked. Throughout the 1970s a central feature of the negotiation of what came to be called the Constitution for the Oceans was the critical central place of the provisions for the peaceful settlement of disputes. States moved decisively away from the freedom which they generally have in their international relations not to be subject in advance to dispute settlement processes, especially processes leading to binding outcomes. The processes in significant part were not to be optional and, in general, third-party binding decisions were to be available at the request of any party to the dispute.

Ambassador Tommy Koh, the president of the...