This panel was convened at 9:45 am, Thursday, April 4, by its moderator, Nilfer Oral of the Faculty of Law, Istanbul Bilgi University, who introduced the panelists: Robert Beckman of the Centre for International Law, National University of Singapore; Rosalyn Higgins, former President of the International Court of Justice; Galo Carrera Hurtado of the Commission on the Limits of the Continental Shelf; Loretta Malintoppi of Eversheds LLP, Paris; and Alexander Yankov of the Tribunal for the Law of the Sea. *
The ICJ and Dispute Settlement in the Asian Seas: An Assessment
By Rosalyn Higgins ([dagger])
This panel is dealing with a very "hot topic"-many informative pages have been written on the great number of territorial and maritime disputes in the South China Sea; much government action, almost day by day, has been occurring; and the January 2013 American Journal of International Law contains a detailed Agora, from different national perspectives, on the legal and factual issues concerned. Indeed, one of our panelists, Rob Beckman, was a contributor to this Agora.
My modest task is very briefly to mention some of the key problems, and to say some words as to whether the International Court of Justice could have a useful role in settlement of the issues.
And this requires me to draw a distinction between substance and jurisdiction.
The International Court of Justice has universal subject-matter jurisdiction: it may deal with the interpretation or a treaty, any question of international law, or the existence of any fact which, if established, would constitute a breach of an international obligation. (1)
It will apply the provisions of UNCLOS where the contending states are parties thereto. It can address ("any question of international law") the relationship between UNCLOS and ownership claims, including those based on historic title.
The complicated web of disputes in the South China Sea, the East China Sea, and the Sea of Japan all relate to issues that are bread and butter for the Court (the Chinese "nine-dash line," the legal nature of which seems not fully developed by China, would present some interesting novel arguments!).
Let me very briefly outline what I mean. In the South China Sea, China and Taiwan (which occupies Taiping Island, the largest feature in the Spratlys) are at odds with each of the Philippines, Thailand, Cambodia, Malaysia, and Vietnam. In the East China Sea, there is an acrimonious and politically charged dispute between China and Japan. In the Sea of Japan, Japan and Korea are at odds. In all of these, the legal issues are very familiar to the Court. To name but a few:
(1) Sovereignty over small islands that lie at a considerable distance from continental or insular coasts.
(2) What maritime entitlements are generated by those features: which are non-generating rocks, which are islands?
(3) Overlapping maritime entitlements.
(4) The impact of physical occupation of some islands and claimed effectives by some claimants.
(5) Which maritime features under Article 121 UNCLOS are in whose continental shelf, and the legal implications.
Over the past 67 years, the ICJ has built up an impressive body of case law on maritime matters. So far as sovereignty over maritime features is concerned (and this arises with reference, inter alia, to the Spratly Islands, Senkaku/Diaoyu Islands, the Liancourt Rocks, the Paracel Islands, Scarborough Shoal, and others), one only has to recall that the Court has great experience already in examining geographical and historical evidence in the Asian region.
Thus, the decision of China in July 2012 to place the entire disputed maritime region in the South China Sea under the authority of the Chinese province of Hainan, and the passing of a law requiring foreign vessels to obtain Chinese permission before entering the disputed region are familiar enough issues for the Court.
Cases involving sovereign title and delimitation, including of overlapping maritime claims, have been a near-constant presence on the Court's docket over the decades. The Court, for example, is currently deliberating on a maritime dispute between Peru and Chile.
Claims have been made in the South China Sea that, on the one hand, claim proximity as the basis for title, and on the other, assert sovereign over small islands lying far from the continental coasts. The entitlement of disputed islands to generate an EEZ is part of what is contested. The nine-dash line would present more novel issues for the Court. It is not wholly clear what the legal function of this is claimed to be-something other than an identification of claimed boundary lines. China insists that it is compatible with UNCLOS, but founded on the historic title.
Obviously, sovereignty over maritime features is a central issue in many of the disputes in Asia. The Court has also addressed what maritime features are not capable of generating maritime entitlements, including, in Qatar v. Bahrain (2001), having to determine an issue not covered in UNCLOS. Are the Scarborough Shoal, Ieyodo/Suyan Reef, Cuarteron Reef, and Fiery Cross Reef islands low-tide elevations or submerged banks?
This is not the occasion to go through the Court's voluminous case law on maritime matters. I will merely refer to Indonesia/Malaysia (2002) and Malaysia/Singapore (2008) as reminders that the Court is experienced in examining geographic and historical evidence in Southeast Asia.
Many of the disputes in Southeast Asia relate, directly or indirectly, to oil and gas. The Court is familiar with this, although it is generally reserved about treating oil and gas claims or factors as "relevant circumstances," which may alter a line provisionally drawn...