Expert: Arbitral ruling on SCS can be reversed

"Here are the thoughts of Oxford University professor Stefan Talmon."

 

Every now and then, the dispute between the Philippines and China over territorial and maritime claims in the South China Sea grabs newspaper headlines. The most recent one, of course, had to do with the presence of more than 200 Chinese vessels near the Julian Felipe Reef which prompted our Department of Foreign Affairs to fire off a barrage of diplomatic protests—one per day, according to Secretary Teodoro Locsin Jr.—and for the Philippine Coast Guard to send ships to the area to assert our sovereign rights over that part of the West Philippine Sea.

The dispute is not likely to be settled soon even as the two sides have established the Bilateral Consultation Mechanism (BCM) to discuss specific issues related to the conflicting claims. So far, the BCMs have met five times since 2017, but their joint statements after each meeting give us little indication that substantial agreements have been reached on key issues.

The Philippines insists on China's acceptance of the July 2016 ruling of the Permanent Court of Arbitration (PCA) established under the United Nations Convention on the Law of the Sea or UNCLOS. Beijing does not recognize the validity of the PCA ruling—it refused to be part of it in the first place—and claims sovereignty over nearly all of the South China Sea based on what it calls the nine-dash line.

The Philippine position was clearly articulated by President Rodrigo Duterte before the United Nations General Assembly on September 22, 2020: “The award is now part of international law, beyond compromise and beyond the reach of passing governments to dilute, diminish or abandon.”

Retired Chief Justice Artemio V. Panganiban clarifies, however, that while Unclos is a multilateral treaty and is part of international law, arbitral decisions such as that handed down by the PCA or other tribunals are, "as a rule, not parts of international law and are not precedents for future arbitrations...I do not wish to devalue arbitrations. As chair of the Philippine National Group in the PCA, I would be the last person to do that. I was just candidly stating a reality."

The views of the former Chief Justice regarding the nature of the arbitral ruling is consistent with the explanation offered by Oxford University professor Stefan Talmon, considered among the foremost experts on UNCLOS, along these lines:

"While the tribunal’s award in the South China Sea Arbitration is final in a procedural sense (procedural finality), it is not necessarily final with regard to the substantive issues involved (substantive finality). In other words, a ‘final award’ is the last award rendered on the issues in dispute between the parties; it is not necessarily the last word on the legal questions at issue. An arbitral award, as any decision by an international court or tribunal, does not cast international law in stone. Unlike most domestic legal systems international law does not know of a hierarchically organized judiciary with a single highest court at the apex. On the contrary, even the decisions of the ICJ (International Court of Justice) have no binding force except between the parties and in respect of the particular case at hand. The object of this provision is ‘to prevent legal principles accepted by the Court in a particular case from being binding also upon other States in other disputes’.

Talmon explains this in detail: "The structure of the international legal system and the fact that any decision rendered by an arbitral tribunal having compulsory jurisdiction under part XV, section 2 of the Unclos ‘shall have no binding force except between the parties and in respect of [the] particular dispute’ means that there are a number of ways in which the substantive finality of the arbitral award in the South China Sea Arbitration can be called into question."

One, judicial or arbitral pronouncements can be reversed by way of international legislation, either by the conclusion of an international treaty or by the creation of a rule of customary international law, which contradicts the finding of an international court or tribunal.

Two, judicial and arbitral pronouncements can be reversed through contrary State practice. When interpreting a treaty an international court or tribunal takes into account ‘any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation’.

Three, judicial and arbitral pronouncements on the interpretation or application of a treaty provision can be reversed through subsequent agreements between the parties regarding the interpretation or the application of its provisions.

And four, the finality of judicial and arbitral pronouncements can be called into question by other international courts and tribunals or by domestic courts adopting a different view on a certain legal question.

The professor concludes: While the award of 12 July 2016 may be the final decision in the arbitration between the Philippines and China concerning their disputes in the South China Sea, it is by no means the final word on the legal questions raised by these disputes.

Are we suggesting that the Philippines should drop its entitlements based on the arbitral ruling in the Hague? No, not at all. We could even file a case before the ICJ and try to get another favorable ruling on the same issue. I understand that former Associate Justice Antonio Carpio is considering taking this move. Will he? Let's wait and see.

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