The curious case of Itu Aba and Spratly Islands: Epochal ruling by an International Court (Permanent Court of Arbitration) on South China Sea dispute under UNCLOS (Philippines v. China) (Part 3 of 4)

On the China’s claim of ‘nine-dash line’ to support its case, the tribunal observed that it first appeared on an official Chinese map in 1948 when the Ministry of the Interior of the then Republican Government of China published a “Map Showing the Location of the Various Islands in the South Sea”. A similar line had also appeared in privately produced cartography as early as 1933. In the original form, the map featured 11 dashes. The two dashes in the Gulf of Tonkin were removed in 1953, rendering it a ‘nine-dash line’, and the line appeared consistently in that nine-dash form in official Chinese cartography since that date. The length and precise placement of individual dashes, however, do not appear to be entirely consistent among different official depictions of the line.

Also in 2009, China sent two Notes Verbales to the UN Secretary-General in response to Malaysia and Vietnam’s Joint Submission of the preceding day to the Commission on the Limits of the Continental Shelf (CLCS) wherein China stated that it has indisputable sovereignty over the islands in the South China Sea and the adjacent waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof. The above position was consistently held by the Chinese Government, and is widely known by the international community. Appended to China’s notes was a map depicting the same ‘nine-dash line’.

The Tribunal held that on the basis of China’s conduct, China claims rights to the living and non-living resources within the ‘nine-dash line’, but (apart from the territorial sea  generated by any islands) does not consider that those waters form part of its territorial sea or internal waters.

Also as between the Philippines and China, the Convention defines the scope of maritime entitlements in the South China Sea, which may not extend beyond the limits imposed therein. The Tribunal concluded that, as between the Philippines and China, China’s claims to historic rights, or other sovereign rights or jurisdiction, with respect to the maritime areas of the South China Sea encompassed by the relevant part of the ‘nine-dash line’ were held contrary to the Convention and without lawful effect to the extent that they exceed the geographic and substantive limits of China’s maritime entitlements under the Convention. The Tribunal concluded that the Convention superseded any historic rights or other sovereign rights or jurisdiction in excess of the limits imposed therein.

The curious case of Itu Aba and Spratly Islands: Epochal ruling by an International Court (Permanent Court of Arbitration) on South China Sea dispute under UNCLOS (Philippines v. China) (Part 2 of 4)

The Arbitral Tribunal had earlier issued its unanimous award on the jurisdiction issue. According to Article 288(4) of the Convention, in the event of a dispute as to whether a court or tribunal has jurisdiction, the matter has to be settled by decision of that court or tribunal. Also Article 9 of Annex VII to the Convention requires that where a Party does not appear before the Tribunal, the arbitral tribunal must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact as well as in law. It held that Philippines and China were parties to the Convention and that the provisions for the settlement of disputes, including through arbitration, formed an integral part of it.  Although the Convention specifies certain limitations and exceptions to the subject matter of the disputes that may be submitted to compulsory settlement, it does not permit other reservations, and a State may not except itself generally from the Convention’s mechanism for the resolution of disputes. The Tribunal also rejected the claim of China alleging abuse of the Convention holding that mere act of unilaterally initiating arbitration in itself cannot constitute an abuse of the Convention.

China contended that the Parties’ dispute is actually about sovereignty over the islands of the South China Sea and therefore not a matter concerning the Convention. It also contended that the Parties’ dispute was actually about the delimitation of the maritime boundary between them and therefore excluded from dispute settlement by an exception set out in the Convention that States may activate by declaration.  China contended that it had already activated the exception for disputes concerning sea boundary delimitations when it made a declaration in 2006.

The Tribunal observed that though there was a dispute between the Parties regarding sovereignty over islands, but yet the matters submitted to arbitration by the Philippines did not concern sovereignty. On the second issue the Tribunal observed that a dispute concerning whether a State possesses an entitlement to a maritime zone is a distinct matter from the delimitation of maritime zones in an area in which they overlap.  While a wide variety of issues are commonly considered in the course of delimiting a maritime boundary, it does not follow that a dispute over each of these issues is necessarily a dispute over boundary delimitation.  Accordingly, the Tribunal held that the claims presented by the Philippines do not concern sea boundary delimitation and are not, therefore, subject to the exception to the dispute settlement provisions of the Convention.

The Tribunal thus held that China’s non-appearance in the proceedings did not deprive the Tribunal of jurisdiction and Philippines’ act of initiating this arbitration did not constitute an abuse of process. It also found that the 2002 China–ASEAN Declaration on Conduct of the Parties in the South China Sea, the joint statements of the Parties, the Treaty of Amity and Cooperation in Southeast Asia, and the Convention on Biological Diversity, did not preclude recourse to the compulsory dispute settlement procedures available the Convention.

The curious case of Itu Aba and Spratly Islands: Epochal ruling by an International Court (Permanent Court of Arbitration) on South China Sea dispute under UNCLOS (Philippines v. China) (Part 1 of 4)

On July 12, a five-judge tribunal in Hague delivered a landmark award on maritime entitlements in the South China Sea. The arbitration concerned disputes between Philippines and China regarding the legal basis of maritime rights and entitlements in the South China Sea, the status of certain geographic features in the South China Sea, and the lawfulness of certain actions taken by China in the South China Sea.

Both Philippines and China are parties to the 1982 United Nations Convention on the Law of the Sea (Convention or UNCLOS). It has even been ratified by 168 parties. The Convention was adopted in order to settle all issues relating to the law of the sea. But the Convention does not address the sovereignty of States over land territory. Also it does contain provisions concerning the delimitation of maritime boundaries. The Convention includes a system for the peaceful settlement of disputes which is set out in Part XV of the Convention, which provides for a variety of dispute settlement procedures, including compulsory arbitration in accordance with a procedure contained in Annex VII to the Convention. It was pursuant to Part XV of and Annex VII to the Convention that the Philippines commenced the arbitration against China in 2013. China had made a declaration in 2006 to exclude maritime boundary delimitation from its acceptance of compulsory dispute settlement, which the Convention expressly permitted for maritime boundaries. The Tribunal thus refrained from delimiting any maritime boundary between the Parties or involving any other State bordering on the South China Sea.

Primarily Philippines sought to resolve a dispute concerning the source of maritime rights and entitlements in the South China Sea. Philippines sought a declaration from the Tribunal that China’s rights and entitlements in the South China Sea must be based on the Convention and not on any claim to historic rights as claimed by China. It further sought a declaration that China’s claim to rights within the ‘nine-dash line’ marked on Chinese maps were without any lawful effect. It further asked the Tribunal to resolve a dispute concerning the entitlements to maritime zones that would be generated under the Convention by Scarborough Shoal and certain maritime features in the Spratly Islands that were claimed by both the Philippines and China. The Spratly Islands is a constellation of small islands and coral reefs in the southern portion of the South China Sea.  It is the site of longstanding territorial disputes among various of the littoral States of the South China Sea. Considered as a risk to navigation, it is identified on nautical charts as the “dangerous ground”!

The Convention provide that submerged banks and low-tide elevations are incapable on their own of generating any entitlements to maritime areas and that rocks which cannot sustain human habitation or economic life of their own do not generate an entitlement to an exclusive economic zone of 200 nautical miles or even to a continental shelf. Philippines sought a declaration that all of the features claimed by China in the Spratly Islands and Scarborough Shoal, fall within one or the other of these categories and that none of these features generates an entitlement to an exclusive economic zone or to a continental shelf.

Though China did not participate in the proceedings, yet in its Position Paper China argued that the Tribunal lacked jurisdiction because the essence of the subject-matter of the arbitration is the territorial sovereignty over the relevant maritime features in the South China Sea and China and the Philippines had agreed, through bilateral instruments and the Declaration on the Conduct of Parties in the South China Sea, to settle their relevant disputes through negotiations. It further stated that the disputes submitted by the Philippines would constitute an integral part of maritime delimitation between the two countries.  In the international sphere, China has taken the position that it has indisputable sovereignty over the South China Sea Islands and the adjacent waters. China’s sovereignty and relevant rights in the South China Sea, formed in the long historical course have been reaffirmed by China’s domestic laws on many occasions and protected under international law including the Convention. China has further taken the stand that in the issues of territorial sovereignty and maritime rights and interests it will never accept any solution imposed on it or any unilateral resort to a third-party dispute settlement since as a sovereign state and a State Party to the Convention it is entitled to choose the means and procedures of dispute settlement of its own will. As per China, since the 1990s China and Philippines have repeatedly reaffirmed in bilateral documents that they shall resolve relevant disputes through negotiations and consultations. The Declaration on the Conduct of Parties in the South China Sea explicitly states that the sovereign states directly concerned undertake to resolve their territorial and jurisdictional disputes by peaceful means through friendly consultations and negotiations.

‘Universal Jurisdiction’ enters African continent: The landmark verdict of the Extraordinary African Chambers (Senegal) in the Hissène Habré “Africa’s Pinochet” case.

After a long and tortuous wait for more than 25 long years, justice has been finally delivered to tens of thousands of victims of Hissène Habré. The case moved from domestic to regional to International Court of Justice and was finally decided by an African court formed specially for this trial, the Extraordinary African Chambers, with its seat in Dakar, the capital city of Senegal on May 30, 2016. Hissène Habré was President of the Republic of Chad from 1982 to 1990 when he was deposed by Idriss Déby Itno. Habré has been living in exile in Senegal ever since. Habré was first indicted by a Senegalese judge in 2000 when a group of Chadian victims filed a complaint against Habré in Senegal. But the appellate courts dismissed the case on the ground that Senegalese courts lacked competence to try crimes committed abroad.

Some Habré victims who were Belgian citizens of Chadian origin, then filed a case against Habré in Belgium in 2000. The Belgian authorities investigated the case for four years and in 2005 the Belgian investigating judge issued an international warrant in absentia for the arrest of Habré, indicted as the perpetrator or co-perpetrator, of serious violations of international humanitarian law, torture, genocide, crimes against humanity and war crimes, on the basis of which Belgium requested the extradition of Habré from Senegal. But in November 2005, the Chambre d’accusation of the Dakar Court of Appeal ruled against Belgium’s extradition request, holding that as a court of ordinary law it could not extend its jurisdiction to matters relating to the investigation or prosecution of a Head of State for acts allegedly committed in the exercise of his functions.

In July 2006, the African Union called on Senegal to prosecute Habré on behalf of Africa before its own courts. Senegalese law was amended to give the country’s courts explicit universal jurisdiction over international crimes, including torture and crimes against humanity. Then the Court of Justice of the Economic Community of West African States (ECOWAS) ruled that Habré should be tried before a “special ad hoc procedure of an international character.” But Senegal again withdrew from the negotiations.

Then Belgium bought the matter before the International Court of Justice which found that the Republic of Senegal, by failing to make immediately a preliminary inquiry into the facts relating to the crimes allegedly committed by Habré and also by failing to submit the case of Habré to its competent authorities for the purpose of prosecution, had breached its obligation under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. It thus held that the Republic of Senegal must, without further delay, submit the case of Habré to its competent authorities for the purpose of prosecution, if it does not extradite him. The new Senegalese government of Macky Sall (after the ouster of the Abdoulaye Wade who was considered as shielding  Habré from prosecution) reacted quickly to the ICJ judgment and negotiations resumed between Senegal and the AU which lead to an agreement to create the Extraordinary African Chambers to conduct proceedings within the Senegalese judicial system. The Extraordinary Chambers were then instituted in Dakar.

The process before the Extraordinary African Chambers was governed by its own Statute and the Senegalese Code of Criminal Procedure. The chambers have four levels. It consists of an Investigative Chamber with four Senegalese investigative judges, an Indicting Chamber of three Senegalese judges, a Trial Chamber, and an Appeals Chamber. The Trial Chamber and the Appeals Chamber each have two Senegalese judges and a president from another African Union member state.

On 16 February 2015, the Court charged Habré with the crimes of torture, homicide, executions, illegal detention, breach of physical integrity, torture, and abduction of civilians. There were various allegations including the repression of political opponents, the population in the the south, the Hagarai, and the Zagawa. After Habré took power, he began to undertake mass arrests. Initially, these were carried out against political opponents but later any Chadian citizen suspected of being part of the opposition was arrested. A 1992 Chadian Truth Commission accused Habré’s government of systematic torture and said that 40,000 people died during his rule. Most abuses were carried out by his political police, the Documentation and Security Directorate (DDS). This included extrajudicial arrests and interrogations conducted by the DDS and the BSIR, followed by incarceration in N’Djamena in DDS prisons where systematic torture was undertaken.

The Court held that there were attacks against the civil population in Chad constituting the crime of torture and crimes against humanity. Also women were forced to have sexual relationships with the DDS officers, prisons authorities, and soldiers of the BSIR which amounted to torture, rape, and crimes against humanity. There were also crimes against humanity for sexual slavery regarding the offenses in the camps. The Court thus found Habré guilty of the crimes against humanity of rape, forced slavery, murder, mass executions, kidnapping and disapearing, torture and the autonomous crime of torture. It further found him guilty of war crimes of murder, torture, inhuman treatments and illegal detention. He has been awarded life imprisonment. It is for the first time that an African Union backed court had tried and convicted a former ruler for human rights abuses.

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