By Michael Sheng-ti Gau

On January 22, 2013, the Philippines initiated a compulsory arbitration against China according to Article 287 of the UN Convention on the Law of the Sea, under the procedure described by Annex VII of the treaty. The goal, as announced by the Philippines, is to settle part of the maritime disputes with China in the South China Sea and to reduce regional tensions. Taken by surprise, China refused to cooperate, arguing that the tribunal lacks jurisdiction over the disputes submitted. Compliance with the award by China is inconceivable, but the case has gone on. The court held a hearing on jurisdiction and admissibility from July 8 to 13, irrespective of China’s refusal to submit a counter-memorial or argue its case in court.

The Sino-Philippine South China Sea disputes are multi-layered. They are concerned with

1. Competing territorial claims over Scarborough Shoal and the maritime features within the Kalayaan Islands Group, a subset of the Spratly Islands;
2. Maritime boundary delimitation as the Chinese and Philippine maritime claims overlap considerably in the South China Sea;
3. The legal status of contested maritime features (whether they are islands, rocks, or low-tide elevations); and
4. The legality of China’s claim to historic rights, made via the “nine-dash line.”

Among these inter-connected disputes, the Philippines only presented to the tribunal the third and fourth layers for resolution, withholding the first and second kinds of disputes (the core disputes). So far the debates have focused on whether the parts of the disputes submitted by the Philippines fall within the subject-matter jurisdiction of the tribunal. If the tribunal rules in the affirmative, then China’s likely non-compliance with the unfavorable award given at the end of the merits phase may be seen as infringing on Article 296 of UNCLOS. However, “non-compliance by appearance” is rather a common phenomenon for both parties. Moreover, this behavior conforms to the principle of res judicata—that a judgment on the merits of a case is definitive and binding between the parties, but only on the particular questions dealt with by the case.

Looking at the un-submitted parts of the disputes (i.e. the core disputes) and their consequences helps substantiate this position. The core disputes are actually the real causes of Sino-Philippine maritime confrontations. Mere submission of the surface disputes by the Philippines is of no avail in reducing tensions. It follows that an award from the tribunal will refrain from determining or rejecting the legality of claims and activities by either party made in the un-submitted core disputes. As Bin Cheng puts it in General Principles of Law Applied by International Courts and Tribunals, “what is not res judicata between the parties has no authoritative and binding effect,” and the res judicata principle is intended “to prevent legal principles accepted by the Court in a particular case from being binding…in other disputes.” Therefore the behavior of the losing party based on its unaffected territorial or maritime boundary delimitation claims will not be inconsistent with the award and the res judicata principle, especially the limits of such a general principle.

Should the Philippines lose during the merits phase of the arbitration, any countermeasures it takes against China’s South China Sea territorial and maritime claims and related law enforcement actions would be far from non-compliance with the award. Nor would such activities violate Article 296 of UNCLOS. But it would contradict the “tension-reducing goal” declared by the Philippines from day one of the arbitration. This fact should make China’s non-participation in this essentially unappealing case more comprehensible.

Dr. Michael Sheng-ti Gau is Professor of International Law at Institute for the Law of the Sea, National Taiwan Ocean University. He can be reached by email at mikegau97@msn.com. For details of the theme of this paper, watch a youtube video of the full presentation here.