The South China Sea Award: Paradox of the Historic Argument
By Hui-Yi Katherine Tseng

The South China Sea Award: Paradox of the Historic Argument

Aug. 08, 2016  |     |  0 comments


On 12 July, the Arbitral Tribunal established under Annex VII in the Law of the Sea Convention (the Tribunal) issued the award for the first South China Sea arbitration. Despite the legal wrestling surrounding provisional interpretation and application, this award sends a timely message, reminding us how the globe has become further flattened and how the contemporary world order has been drastically reconfigured. Amid the continuing evolution of the situation and growing wariness of other claimants, the award is indeed a game changer in the following dimensions.


Institutional Lessons


First, this award reminds us, again, of how a proliferation of special legal regimes, along with the establishment of special tribunals since the 1990s, has re-shaped the legal landscape of generational law.


From the beginning, China holds the position that this Tribunal was not duly authorized to rule on territorial disputes, the essence deemed by China of the South China Sea dispute. After the award was issued, China heightened its criticism of the Tribunal, saying that it was not a regular international court and had no relations to the international judiciary system under the UN framework.


China’s criticism on the institutional dimension of the international judiciary system reveals two things: China’s enduring lack of trust of the international third-party adjudication system, and its lack of understanding of the rapidly changing international judiciary order.


China consistently held a doubtful attitude toward the international judiciary system. It was not until 2009 that China first participated in proceedings at the International Court of Justice (the Court). A Chinese legal expert appeared before the Court as a counsel for China in the oral hearings of the Kosovo advisory proceedings held in December 2009.1 In September 2010, the expert, Xue Hanqin, became the Chinese Judge in the Court.


In October 2013, China made a statement to the UN General Assembly on the Rule of Law at National and International Levels. The statement also verified that China’s skepticism toward international adjudication remained deeply engrained in their minds. In the statement, China reaffirmed its support for Article 33 (1) in the UN Charter,2 but left out “arbitration, judicial settlement, resort to regional agencies or arrangements” in its should-be verbatim reaffirmation of the spirit of the provision. For China, arbitration and judicial settlement are two categories inappropriate for the concept of peaceful settlement. The Chinese government also insisted that states’ consent should be obtained before these legal courses are initiated.


Besides the enduring lack of trust, China seems also to lack a systemic understanding of the rapidly changing landscape of international judiciary mechanisms. Their attacks on the institutional dimension of the South China Sea arbitration are revealing in this aspect.


This Tribunal was a special tribunal established according to the Law of the Sea Convention. It was duly authorized by the Convention to look into maritime issues. As a special tribunal, its role and responsibility were different from those of conventional courts such as the International Court of Justice. It was in the 1990s that there began a proliferation of these special tribunals, a corollary of the booming of special legal regimes. Three most frequently-cited examples are the World Trade Organization Dispute Settlement Body, the European Court of Human Rights, and the International Tribunal for the Law of the Sea (ITLOS). This special tribunal is the default choice of the list of semi-compulsory mechanisms listed in Part XV (Settlement of Dispute), Article 279 to 299, in the Law of the Sea Convention. The ITLOS is the primary choice.


These special tribunals deem themselves as the role of norm-advancement of these special legal regimes, and their responsibilities lie in following aspects: developing the jurisprudence and establishing the spirit of rule of law of the special legal regimes. Therefore, they tend to adopt a rather adventurous attitude, and are inclusive to creative ideas. Not surprisingly, their rulings can be rather aggressive, in particular to the more disadvantaged parties, while triggering subsequent reactions. It is fair to say that dispute settlement is not their primary purpose. Despite their often proactive attitudes and revolutionary decisions, they often emphasize inter-state cooperation as an important and mutually-beneficial means. It is thus often described that these special tribunals are transforming the international legal system from a law of co-existence to a law of co-operation.


This Tribunal seemingly fully lives up to these expectations. By identifying itself as a norm-advancement role, rather than a war-prevention instrument, the Tribunal’s intention in advancing the jurisprudence of the law of the sea regime is self-proven, even at the cost of further catalyzing the tension.


Paradox of Historic Argument


Second, the Chinese strategy in defending its South China Sea claims requires second thoughts. Although China has refused to participate in the proceedings from the very beginning, it submitted plenty of documents and position papers to verify its claims. China has relied on historic arguments very much, and is often described as fleshing out its claims in historical discourse. Yet, historic argument is a double-edged sword that China should handle with extra caution.


On one hand, it is likely that historic arguments tend to be self-claimed and self-justified. Further, historic arguments generally are regarded as hindsight, for the purpose of serving certain policy goals. In other words, despite the fact that these historic incidents did occur, they were conducted generally for purposes very different from those outlined in contemporary disputes. The contextual considerations were also very different. As a result, these historic incidents tend to be selective in nature and reconfigured in the narrative, in order to serve the interests of contemporary government. This echoes the enduring inquiry of the interpretation of history and the objectivity of the interpretation.


On the other hand, historic argument is as troublesome as nationalist sentiment can be. International courts and tribunals tend to decline to deal with historic argument, rendering it a secondary position in the list of considerations when making decisions. Rather, realistic factors, such as effective controls and consistent management, are generally attached with primary importance. The logic of these tribunals and courts is that sovereignty is the one most sacrosanct claim vested upon every nation state, which stipulates that the nation state need not and should not be subordinated to any authorities claiming overlordship, in whatever manifestation, above them.



This award, as a declaratory judgment, seemingly does not require certain implementation acts to deliver its effectiveness.



To some extent, international judiciary organs assume such a supra-state role when states bring their disputes to international courts and tribunals. In particular, when states claim historic arguments, it is even more burdensome for the international courts and tribunals. To determine a contemporary dispute based on historic arguments will likely influence the compromise reached in the legal instrument, in this case, the Law of the Sea Convention which reflects a consensus among various interested groups, and a delicate balance between the obligations of different generations.


Further, a decision based on historic arguments is likely to trigger criticism that the hard-won consensus on racial equality is to be overshadowed, and in the worst case scenario, overthrown, because such a decision suggests, however implicitly, a judgement on the supremacy of one nation over another.


Pragmatic View on Implementation


Third, the implementation issue requires further consideration. China has repudiated the award since it was released. Observers generally believe that this award is likely to be unenforceable, and therefore, will lapse into dormancy. Yet, there are some points that require reconsideration when discussing the issue of implementation.


The concept of “implementation” should be distinguished from the legal term “compliance.” “Implementation” should be a broader category, and inclusive of “compliance.” In other words, when thinking about “implementation”, it should not be confined only to “compliance” in a legal sense, and should be deemed as comprising all the actions that may facilitate or result in compliance. That said, the obligation of execution remains the backbone of implementation, so as to honor the credibility of law and to defend the integrity of jurisprudence. In this sense, even with a main theme of an obligation to execute the judgment, the concept of “implementation” should be broadened to be inclusive of conduct that may result in partial compliance, or may go beyond compliance.


It is not rare that implementation itself requires certain enabling acts that give little indication as to whether compliance will eventually take place. Yet, in these scenarios where partial or non-compliance occurs, one inquiry is that if there exist other considerations when discussing the implementation issue, such as the realization of the regulatory goal underlying a certain rule, rather than the rule itself. In other words, despite the sacrosanct value attached to a legal decision in terms of credibility and integrity of the law, in reality, the effectiveness of a pronouncement is not a guarantee of its efficacy.


This paradox is overtly discernible in international courts’ judgement and tribunals’ awards, in particular, judging that international law is often described as lacking legal teeth. In the scenario of the South China Sea arbitration, this implementation issue triggers concerns.


To begin with, the tribunal’s decision is seemingly more a declaratory judgement, rather than a constitutive judgement. The former spells out the content or recognizes the existence of disputed rights, while the latter declares a new right. The former does not technically need any implementation act. In several critical issues, such as the historic right claimed under China’s nine-dash line claim and the definition of islands and rocks, the award spells out the content, scope and limitation of these concepts, without engaging technical measures deemed necessary to accomplish the analysis and deliver the effectiveness of the award. In this sense, this award, as a declaratory judgment, seemingly does not require certain implementation acts to deliver its effectiveness.


A second point is in the post-arbitration phase, implementation — be it full or partial of the award — is ultimately determined by the will of parties. It is for them to decide the place that the “juridical component” should have in their dispute, according to what proves feasible and appropriate under their existing political relationship. As a result, a comprehensive analysis of implementation may need to take into account what happens during the pre-arbitration phase or other factors that may intervene this process, such as other actors’ behavior.


In the post-arbitration phase in the South China Sea scenario, this seemingly fits the complex picture of the dispute which continues to evolve not only between China and the Philippines, but also among other claimants and stakeholders. Therefore, what can be anticipated is the much-expected negotiations between China and the Philippines over their disputes. What role would the award play in their negotiation is heavily-speculated. The Philippines will have more bargaining leverage, while China has shown its willingness to open bilateral talks with the Philippines immediately after the award was issued.


Afterword


The arbitration has come to an end, but a new era has been opened. China is facing criticism from all over the world, but it also has new opportunities to trim down unnecessary details in its claims, re-calibrate its policy goals, and re-evaluate its strategic tactics in this enduring South China Sea battle.


The South China Sea dispute has become highly politicized. Yet, the reality is, by not being able to tackle the South China Sea issue, China’s regional relations and relevant policies, such as the 21st Century Maritime Silk Road plan, may run the risk of being further attenuated, dis-credited, and to the extreme, debilitated. Creative thinking, rationality and practicality, and an open-minded attitude are required for a sustainable and beneficial resolution.


Notes


1. It was also in 2009 that China chose to take part in the first ever advisory proceedings before the International Tribunal for the Law of the Sea (ITLOS). In the proceedings before ITLOS regarding the Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the International Seabed Area, China submitted a written statement and argued that the Court ought to exercise its jurisdiction in the proceedings.


2. “The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.”

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