Full coverage: South China Sea Is Indisputable Part of China

V. The Arbitral Tribunal errs in finding that the Philippines had fulfilled the obligation to “exchange views” regarding the means of disputes settlement with respect to the claims it made

The Tribunal’s exercise of jurisdiction over the Philippines’ claims is subject to the fulfillment of the precondition set in Article 283 of the Convention. That Article provides that when a dispute arises between States Parties, the parties to the dispute shall proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means. This provision reflects the spirit to pay due respect to the intention of parties to a dispute and to ensure that they have sufficient opportunities to choose means of dispute settlement. According to Article 283 of the UNCLOS and relevant international practice, the exchanges of views must be centered on issues concerning the interpretation or application of the Convention, and must be those that are conducted after the emergence of the dispute. The fulfillment of the obligation shall be measured by certain specific criteria. In the present Arbitration, the Tribunal’s determination that the Philippines had fulfilled the obligation is groundless in fact and law.

First, the Tribunal fails to identify the relevant subject-matters of the exchange of views between China and the Philippines. The exchange of views, which China and the Philippines made with respect to various issues of the South China Sea, mostly concerned the sovereignty over certain maritime features in the South China Sea, in particular Huangyan Dao (Scarborough Shoal) and Meiji Jiao (Mischief Reef), and the management and control of contingencies in the disputed areas, rather than issues concerning the interpretation or application of the UNCLOS. In the Award, the Tribunal concludes that the Philippines had fulfilled the obligation to exchange views, on the basis of two rounds of consultations that China and the Philippines conducted in 1995 and 1998, and the exchange of notes verbales surrounding the issue of Scarborough Shoal (Huangyan Dao) in April 2012. However, it also admits that the two rounds of consultations in 1995 and 1998 pertained to “sovereignty over the Spratly Islands (Nansha Islands) and certain activities at Mischief Reef (Meiji Jiao)” (Award, para.336, emphasis added); and as a matter of fact, under discussion in the 2012 notes verbales remained the territorial sovereignty over Huangyan Dao (Scarborough Shoal). Thus seen, the subject-matter of the exchange of views between China and the Philippines did not concern the interpretation or application of the UNCLOS. Therefore, it cannot be concluded that the Philippines had fulfilled the obligation to exchange views under Article 283 of the UNCLOS with respect to the subject-matter of its claims.

Second, the Tribunal relies on facts that occurred before the so-called “disputes” arose as the evidence of exchange of views on the “disputes”. The exchanges of views pertaining to a dispute must be those that are conducted subsequent to the emergence of the dispute. In its demonstration for the existence of disputes between China and the Philippines on “historic rights” and the status of maritime features, the Tribunal refers to various bilateral notes verbales exchanged between 2009 and 2011, suggesting that the so-called “disputes” arose in as early as 2009. However, in the demonstration of the two States’ exchanges of views on the “disputes”, the consultations and exchange of notes verbales that the Tribunal relied on mostly happened before 2009. While admitting the above to be the facts (See Award, para.336), the Tribunal ultimately persisted in taking them as valid acts of exchange of views (See Award, para.342) for purposes of Article 283. This is absurd.

Third, the Tribunal deliberately lowered the criteria for the fulfillment of the obligation to exchange views. Given the variety of voluntary and compulsory means of dispute settlement provided for under the UNCLOS, the exchange of views is necessary for the parties to be aware of the means to be selected. In the Chagos Arbitration, the Tribunal stressed that Article 283 “was intended to ensure that a State would not be taken entirely by surprise by the initiation of compulsory proceedings”, and it “requires that a dispute have arisen with sufficient clarity that the Parties were aware of the issues in respect of which they disagreed” (In the Matter of the Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), PCA Case No.2011-3, Award of 18 March 2015, p.149, para.382).

In the meantime, the obligation to exchange views stipulated in Article 283, as a part of voluntary choice of dispute settlement procedures, is a precondition to the initiation of compulsory procedures and reflects the drafters’ intention to give priority to dispute settlement procedures of the parties’ own choice. The obligation to exchange views is not merely a compulsory obligation, but also a priority obligation. Therefore, in performing the obligation under Article 283, the parties should be assured of having sufficient opportunities to express their preference regarding the means of dispute settlement. Therefore, the exchange of views must be meaningful and substantial consultations regarding the means of dispute settlement. As Judge P. Chandrasekhara Rao observed in 2003 in the Malaysia v. Singapore Case, “[t]he requirement of this article regarding exchange of views in not an empty formality” (Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore), Provisional Measures, ITLOS Case No.12, Order of 8 October 2003, Separate Opinion of Judge Chandrasekhara Rao, p.39, para.11). In the Southern Bluefin Tuna Case, the arbitral tribunal regarded the “prolonged, intense and serious” negotiations as fulfilling the obligation of exchange of views (Southern Bluefin Tuna Case (Australia and New Zealand v. Japan), Award on Jurisdiction and Admissibility, 4 August 2000, para.55).

The criteria for the fulfillment of the obligation to exchange views were lowered substantially by the Tribunal in the present Arbitration. For instance, on the basis of the Philippines’ note verbale to China dated 26 April 2012 and China’s reply three days later, the Tribunal concluded that the Philippines had fulfilled the obligation with respect to claims regarding the Scarborough Shoal (Huangyan Dao) (See Award, paras.340-342). Leaving aside the fact that the core of the subject-matter of the above notes verbales is the territorial sovereignty over Huangyan Dao (Scarborough Shoal) rather than a matter concerning the interpretation or application of the UNCLOS, the criteria set by the Tribunal for assessing the fulfillment of the obligation to exchange views render Article 283 of the UNCLOS practically meaningless.