Part VII - Cultural Heritage Law and Law of the Sea

19 Protecting Cultural Heritage during an Occupation Enforcing Compliance with the 1954 Hague Convention and the Case of the Temple Preah Vihear

Alice Lopes Fabris

19.1 Introduction

Cultural property has always been a target in armed conflicts. From the 1870 French–German war to the recent conflict in Ukraine, cultural property has been destroyed during military hostilities, even if it is protected by international humanitarian law. To try to increase the protection of the cultural heritage of humankind, the international community has adopted the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (the 1954 Hague Convention) in the aftermath of the Second World War. The Convention stipulates the obligation to safeguard and respect cultural property in armed conflict and during a military occupation. However, the effectiveness of this Convention is often disputed. Violations of the Convention have yet to be brought before an international court, even if courts have dealt with the destruction of historical monuments.¹

One interesting case study on the application of the Convention concerns the Preah Vihear Temple. Situated in Cambodia near its border with Thailand, the Temple is composed of a series of sanctuaries with a complex history that can be traced to the ninth century.² In 1954, the Temple’s area was occupied by Thailand,³ starting a fifty-five-year border dispute,⁴ which almost escalated into armed conflict in 2008.⁵ During this period, several international forums were seized with the protection of the Temple, including: the International Court of Justice (ICJ), United Nations Security Council (UNSC), United Nations Educational, Scientific and Cultural Organization (UNESCO) and a Joint Border Commission established by Cambodia and Thailand. This chapter will assess the contribution of all of these processes and agencies to the protection of cultural property in armed conflict with reference to this study.

Dealing with the related territorial sovereignty dispute between Cambodia and Thailand in the 1960s, the ICJ held that the Temple was in Cambodian territory and that Thailand was under an obligation to withdraw any military or police force stationed there.⁶ Following this decision, UNESCO also dealt with the conflict. As the main international organisation dedicated to protecting cultural heritage, UNESCO’s purposes and functions are to ‘maintain, increase and diffuse knowledge by assuring the conservation and protection of the world’s inheritance of books, works of art and monuments of history and science, and recommending to the nations concerned the necessary international conventions’.⁷ As will be narrated later in this chapter, in April 1966, four years after the ICJ judgment, the Permanent Delegation of the Kingdom of Cambodia to UNESCO contacted the UNESCO Director-General concerning clashes at the Temple, which, according to the Cambodian Government, had damaged the historical monument.⁸ Cambodia alleged that Thailand had violated the obligation to respect the Temple,⁹ a customary international norm codified in the 1954 Hague Convention, and that Thailand had failed to comply with other obligations under the Convention.¹⁰ However, the UNESCO Director-General conveyed the view that the UN Secretary-General would provide a more adequate response.¹¹

The Temple of Preah Vihear was added in 2008 to the World Heritage List established by the World Heritage Convention, following a request by Cambodia in 2007.¹² However, Thailand contested the extent to which the land around the Temple was also to be protected and claimed that the protective zone that Cambodia had established around the Temple was in Thai territory. The Temple’s area as included in the World Heritage List excluded this zone. The continued conflict on the location of the Thai–Cambodian border was the object of a second ICJ judgment in 2013 interpreting the 1962 decision. In this second proceeding, the Court once more did not mention the 1954 Hague Convention and only cited the 1972 UNESCO World Heritage Convention as a reminder to the Parties that they should co-operate in matters related to World Cultural Heritage.¹³

This case study on the overlapping competence of UNESCO, the ICJ and the UN Secretary-General, highlights the shortcomings of the existing international forums as vehicles to help protect cultural property in armed conflict, and to enforce compliance with relevant international law. First, this chapter will analyse the original ICJ proceedings, including the arguments of the Parties and the law applied by the Court, to demonstrate how cultural heritage law was overlooked. Then, the chapter will examine UNESCO’s actions, as the main international organisation dedicated to protecting cultural heritage. The limits of UNESCO’s actions to enforce international obligations in this particular case will be demonstrated, as will the influence of international politics on the actions of international organisations. Finally, the ICJ proceedings of 2013 will be studied.

19.2 The Original Case before the ICJ

Situated on the border between Thailand and Cambodia, in a 154.7-hectare area, the Temple of Preah Vihear was dedicated to Shiva. The first testimonies of the Temple date to the ninth century, when the monument was founded, and it was finished in the eleventh century.¹⁴ It is composed of various sanctuaries on the edge of a plateau that dominates the plain of Cambodia. As stated by UNESCO: ‘the site is exceptional for the quality of its architecture, which is adapted to the natural environment and the religious function of the temple, as well as for the exceptional quality of its carved stone ornamentation.’¹⁵ The Temple was included on the World Heritage List in 2008 on the basis it is ‘an outstanding masterpiece of Khmer architecture’. The sovereignty over the Temple’s surrounding area, however, remained then still disputed.

In 1954, the year of Cambodian independence, Thailand occupied the area of the Temple. First, it should be noted that, even though Cambodia declared its independence on 9 November 1953, it became officially independent only in 1954. At the time, the Cambodian Government saw Thailand as one of the ‘greatest threats to Cambodia[’s] survival’.¹⁶

On 6 October 1959, the Cambodian Government submitted a case before the ICJ requesting (i) Thailand withdraw the armed forces that it had installed in 1954 in the ruins of the Temple and (ii) that the territorial sovereignty of the Temple belonged to Cambodia.¹⁷ The Cambodian Government highlighted that it was

not driven by any political, strategic or economic ulterior motive. It intends that the authentic Khmer Temple of Preah Vihear, placed by the delimitation agreements on the Cambodian side of the border, should be piously preserved as part of the spiritual, moral, and cultural heritage of the country.¹⁸

In its 1962 judgment, the Court recognised that the 1904 Franco–Siamese Treaty had established the frontier in dispute, following the work of a Mixed Delimitation Commission. According to the map used in the dispute, the Temple area was in Cambodian territory. The Court found that the map had been accepted by Thailand and concluded that the Temple was indeed situated on Cambodian territory. The Court also held that ‘Thailand is under an obligation to withdraw any military or police forces, or other guards or keepers, stationed by her at the Temple, or in its vicinity on Cambodian territory’,¹⁹ and ‘is under an obligation to restore to Cambodia any objects of the kind specified in Cambodia’s fifth Submission which may, since the date of the occupation of the Temple by Thailand in 1954, have been removed from the Temple or the Temple area by the Thai authorities’.²⁰

In the written proceedings before the ICJ, both States argued the importance of the Temple for the cultural heritage of humanity as an example of Khmer art and heritage. It should be noted that Cambodia became a member of UNESCO on 3 July 1951, before its formal independence, but ratified the 1954 Hague Convention for the protection of cultural property in the event of an armed conflict only on 4 April 1962, after the application to the ICJ.

On the one hand, according to Cambodia’s pleadings before the Court, the Temple is part of the country’s spiritual, moral and cultural heritage.²¹ As such, the Cambodian Government has summitted several documents that refer to the Temple as a Cambodian monument,²² including a Minute de la Lettre du Directeur de l’École française d’Extrême-Orient au Gouverneur Général de l’Indochine that recognised the Temple as a Protected Monument.²³

On the other hand, the Thai Government contested the religious importance of the Temple for Cambodians since, according to its memorial, ‘the temple is a Brahminic monument, whereas Thailand and Cambodia are now both Buddhist countries’.²⁴ Thailand also argued that

[i]t played so small a part in the religious life of either people that by the 19th century, it had been forgotten, and it was the Thai Prince Sanphasit who rediscovered it in 1899 … . Even after its rediscovery, the temple remained isolated and received only occasional visitors. Visitors from Cambodia were specially few, because it is difficult to get to the heights of the temple from Cambodia, there being only one very steep path up the eastern side of the cliff.²⁵

Furthermore, according to Thailand, the fact that the Temple was authentically Khmer did not automatically give Cambodia sovereignty since, for instance, one can see Roman heritage throughout Europe, and not only in Italy.²⁶

The Court recognised in its judgment the importance of the Temple as cultural heritage, as highlighted by both Parties:

The Temple of Preah Vihear is an ancient sanctuary and shrine situated on the borders of Thailand and Cambodia. Although now partially in ruins, this Temple has a considerable artistic and archaeological interest and is still used as a place of pilgrimage.²⁷

However, during the oral and written proceedings, the Parties invoked neither conventional nor customary international law on the protection of historical monuments against military activities to denounce or justify the presence of troops in the Temple. The pleadings focussed on the question of territorial sovereignty.²⁸ It should be noted that the 1954 Hague Convention could not be applied since Cambodia had ratified the Convention only in 1962. However, at the time, the protection of cultural property was established in customary international law. We might ask why the Court did not refer to this body of law when analysing the legality of Thailand’s actions.

The 1907 Hague Convention (IV) respecting the Laws and Customs of War on Land and its Annex, ‘Regulations Concerning the Laws and Customs of War on Land’ was also potentially applicable in the case, if the following provisions could be considered customary norms. Article 27 of the Regulations states that ‘in sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments …, provided they are not being used at the time for military purposes’. Moreover, Article 56 prohibits ‘all seizure of, destruction or willful damage done to institutions of this character, historic monuments, works of art and science’.

The fact that the Parties did not refer to the 1954 Hague Convention, to customary international law or to the 1907 Hague Convention need not have prevented the Court from considering this body of law. According to the principle recognised in the Lotus case by the Permanent Court of International Justice in 1927,²⁹ and reaffirmed by the ICJ,³⁰ the Court is not limited to the arguments that the Parties to a dispute present in the written and oral proceedings. However, the Parties had made no claims to which this law might be relevant. On the merits, the Court highlighted that

[t]he subject of the dispute submitted to the Court is confined to a difference of view about sovereignty over the region of the Temple of Preah Vihear. To decide this question of territorial sovereignty, the Court must have regard to the frontier line between the two States in this sector.³¹

The Cambodian Government’s claims were confined to questions of sovereignty, while also asking that the Kingdom of Thailand ‘withdraw the armed forces that it has installed since 1954 in the ruins of the Temple of Preah Vihear’.³² The law on the special protection of cultural property in the event of an armed conflict was not invoked. An additional factor at play may have been that, as Cambodia had so recently come to independence, the Court was particularly inclined to focus on the question of territorial sovereignty and take into account also the conflict in Vietnam then taking place.³³ After ratifying the 1954 Hague Convention, Cambodia, however, went on to seek from UNESCO the protection of its cultural property.

19.3 The Case before UNESCO

Thailand refused to enforce the ICJ judgment for months. However, six months after the judgment, and following a complaint by Cambodia regarding Thailand’s non-compliance with the judgment, Thailand withdrew its armed forces from the Temple area.³⁴ However, four years later, Thailand intensified its military presence in the region. On 3 April 1966, the Cambodian Government reported that nine Cambodian guards were attacked by an estimated fifty individuals from the Thai armed forces. The site was not retaken by the Cambodian armed forces until the night of 5 to 6 April 1966. Moreover, the Thai armed forces fired against the Preah Vihear Temple almost every day from 11 April, causing considerable damage to the monument and sculptures. One month after this series of incidents in the area surrounding the Temple, Cambodia requested UNESCO protect it. Cambodia noted that ‘the persistence of these facts would risk the total destruction of this jewel of Khmer art, which is at the same time a heritage of the whole humanity’,³⁵ and made a formal request for UNESCO in the following terms:

In order to save this temple from disaster, the Permanent Delegation of Cambodia to UNESCO, in accordance with the instructions given by its Government, would like to request the Director-General of the United Nations Educational, Scientific and Cultural Organization to

1. communicate these facts to the States Parties to the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict

2. assist in seeking ways and means to save the Temple of Preah Vihear from these destructive acts.³⁶

The organisation’s ability to respond to such a request was debated within UNESCO.³⁷ Even though the 1954 Hague Convention stipulated two Articles that establish procedures to assist States Parties in the protection of an endangered cultural property – the conciliation procedure provided by Article 22 and the assistance of UNESCO stipulated by Article 23 – the application of such Articles was still relatively new. Cambodia’s request for assistance did not mention explicitly any Article of the 1954 Hague Convention.

19.4 The 1954 Hague Convention Procedures for Compliance

The 1954 Hague Convention was a response from the international community to the massive destruction of art and historical monuments during the Second World War.³⁸ The Convention aimed to establish an international regime to prevent damage to cultural property during international armed conflicts and occupation.³⁹

This Convention protects, inter alia:

1. (a) movable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of buildings which, as a whole, are of historical or artistic interest; works of art; manuscripts, books and other objects of artistic, historical or archaeological interest … .⁴⁰

Two main obligations are stipulated: to safeguard and to respect cultural property. The first obligation, established in Article 3, concerns the preparation in time of peace for the protection of cultural property in times of war. In addition, it concerns positive action to be undertaken by the State in which the cultural property is located. The second obligation relates to negative actions. Parties are to

[refrain] from any use of the property and its immediate surroundings or of the appliances in use for its protection for purposes which are likely to expose it to destruction or damage in the event of armed conflict; and [refrain] from any act of hostility, directed against such property.⁴¹

Thus, during hostilities States must take all necessary steps to spare cultural property from destruction, to the extent military necessity allows. This includes not conducting any military activities in the vicinity of cultural property or using cultural property in a way that transforms it into a military objective.⁴² Moreover, Article 5 of the 1954 Hague Convention includes obligations for an occupying State to ‘support the competent national authorities of the occupied country in safeguarding and preserving its cultural property’, and to ‘take measures to preserve cultural property situated in occupied territory and damaged by military operations, take the most necessary measures of preservation in close co-operation with such authorities, among others’.⁴³

This Convention also stipulates two procedures to assist in the protection of cultural property in the event of an armed conflict: the conciliation procedure established by Article 22 and the assistance of UNESCO as provided by Article 23. Both Articles were inspired by certain common Articles of the four 1949 Geneva Conventions, that is, the Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949, the Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949, the Convention (III) Relative to the Treatment of Prisoners of War of 12 August 1949 and the Convention (IV) Relative to the Protection of Civilian Persons in Time of War of 12 August 1949.

19.4.1 Article 22 of the 1954 Hague Convention: Conciliation Procedure

Article 22 was established to resolve any conflict between States arising from the application of the 1954 Hague Convention. Initially, the experts drafting the 1954 Hague Convention contemplated a solution referring disputes on the Convention’s application to the ICJ. However, this option was renounced since States seemed reluctant to provide for this as only a low number of States had accepted the ICJ jurisdiction.⁴⁴ In the end, States decided to adopt a provision for conciliation based on the formula for the exercise of good offices in common Articles 11/11/11/12 respectively of the four 1949 Geneva Conventions.

For analysis of Articles 11/11/11/12 of the 1949 Geneva Conventions, one can refer to the 2016 International Committee of the Red Cross Commentaries to the 1949 Geneva Convention (‘2016 ICRC Commentaries’). A first version of the commentaries published in the 1950s is considered ‘a major reference for the application and interpretation of these treaties’.⁴⁵ The new version of the Commentary to the First Geneva Convention, published in 2016, aims to update the 1950 Commentaries ‘in order to document developments and provide up-to-date interpretations’.⁴⁶ Table 19.1 sets out the text of Articles 11/11/11/12 alongside the text of Article 22 of the 1954 Hague Convention.

Table 19.1 Comparative table of Article 11 of the Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949 and Article 22 of the Convention on the Protection of Cultural Property in the Event of an Armed Conflict of 14 May 1954

First Geneva Convention of 1949

1954 Hague Convention

Article 11 In cases where they deem it advisable in the interest of protected persons, particularly in cases of disagreement between the Parties to the conflict as to the application or interpretation of the provisions of the present Convention, the Protecting Powers shall lend their good offices with a view to settling the disagreement. For this purpose, each of the Protecting Powers may, either at the invitation of one Party or on its own initiative, propose to the Parties to the conflict a meeting of their representatives, in particular of the authorities responsible for the wounded and sick, members of medical personnel and chaplains, possibly on neutral territory suitably chosen. The Parties to the conflict shall be bound to give effect to the proposals made to them for this purpose. The Protecting Powers may, if necessary, propose for approval by the Parties to the conflict, a person belonging to a neutral Power or delegated by the International Committee of the Red Cross, who shall be invited to take part in such a meeting.

Article 22. Conciliation procedure 1. The Protecting Powers shall lend their good offices in all cases where they may deem it useful in the interests of cultural property, particularly if there is disagreement between the Parties to the conflict as to the application or interpretation of the provisions of the present Convention or the Regulations for its execution. 2. For this purpose, each of the Protecting Powers may, either at the invitation of one Party, of the Director-General of the United Nations Educational, Scientific and Cultural Organization, or on its own initiative, propose to the Parties to the conflict a meeting of their representatives, and in particular of the authorities responsible for the protection of cultural property, if considered appropriate on suitably chosen neutral territory. The Parties to the conflict shall be bound to give effect to the proposals for meeting made to them. The Protecting Powers shall propose for approval by the Parties to the conflict a person belonging to a neutral Power or a person presented by the Director-General of the United Nations Educational, Scientific and Cultural Organization, which person shall be invited to take part in such a meeting in the capacity of Chairman.

According to the 2016 ICRC Commentaries,⁴⁷ in International Law, ‘conciliation was originally conceived as a method of peaceful settlement of disputes between States’.⁴⁸ Thus, it ‘usually involves powers of investigation and active participation in finding a solution to the dispute that is acceptable to all Parties to the procedure’.⁴⁹ However, it is not binding. As for the good offices to be provided on the basis of the Geneva Conventions, these do ‘not necessarily suppose a disagreement between the Parties involved, but may be used, more generally, each time that it is “advisable in the interest of protected persons”’.⁵⁰ Moreover,

The purpose of Article 11 is to determine the conditions for establishing a dialogue between Parties to an international armed conflict. Paragraph 1 invites Protecting Powers to facilitate such a dialogue through their ‘good offices’. Paragraph 2 describes one possible way to proceed, namely the organization of a meeting of the representatives of the Parties to the conflict. Article 11 does not, however, suppose the creation of a panel of experts tasked with examining the dispute and proposing the terms of a settlement, as would be the case under the traditional conciliation procedure. In other words, the mechanisms established under Article 11 may involve less formal diplomatic means, as indicated by the notion of ‘good offices’ in paragraph 1.⁵¹

This type of ‘good offices’⁵² is also created by the 1954 Hague Convention, but this time in the best interest of the protection of cultural property. According to Jiri Toman, under Article 22, States do not interpret the Convention or the Regulations but resolve disagreements between the Parties on the application or interpretation of the Convention and the Regulations.⁵³

Article 22 of the 1954 Hague Convention does not stipulate the type of good offices to be applied, with paragraph 2 only describing one example. This Article provides an avenue for belligerents to have their conflict mediated during a meeting presided over by a neutral third party, as illustrated in Figure 19.1. In this meeting, proposals can be presented to the belligerents to better protect the cultural property in question. The meeting can, for instance, be a forum to discuss the evacuation of cultural property or the establishment of safe havens.⁵⁴ This Article depends for its operation, however, on the appointment of a Protecting Power, a neutral third party agreed by the belligerents who will preside over their negotiations.⁵⁵

Figure 19.1 Procedure of conciliation under the 1954 Hague Convention

States and UNESCO might avoid the application of this Article since reliance on good offices based on the four 1949 Geneva Conventions could be more appropriate. The 1949 Geneva Conventions’ good offices procedure would deal with multiple issues over a range of topics and can include the protection of cultural property – the protection of cultural property is present in the 1977 Protocols to the Geneva Conventions. However, according to the ICRC, ‘the mechanism established under Article 11 has to date never been used’.⁵⁶ According to the 2016 Commentaries:

The non-use of the conciliation procedure is a direct consequence of the lack of effectiveness of the system of Protecting Powers. Protecting Powers have been appointed on only five occasions since the adoption of the Geneva Conventions in 1949 and they have never had the opportunity to apply their formal competence based on Article 11.⁵⁷

Similar reasoning could be applied to the system under Article 22; non-use of the conciliation procedure under the 1954 Hague Convention could be ‘a direct consequence of the lack of effectiveness of the system of Protecting Powers’.⁵⁸

19.4.2 Article 23 of the 1954 Hague Convention: Assistance of UNESCO

Article 23 envisages UNESCO’s technical assistance, broadening UNESCO’s mandate to protect cultural property in the event of an armed conflict. This Article is one of the fundamental provisions on which later legal work concerning the protection of cultural property has been built. From the first propositions of an organisation or rule to protect historical monuments and works of art, the necessity of an impartial organism or State to assist belligerents is often present.⁵⁹ States and authorities have often called for the creation of a Red Cross for historical monuments and works of art.⁶⁰ According to Jiri Toman’s Commentaries, the first paragraph of Article 23 is inspired by Article 9/9/9/10 respectively of the 1949 Geneva Conventions.⁶¹ Table 19.2 sets out the text of Articles 9/9/9/10 alongside the text of Article 23.

Table 19.2 Comparative table of Article 9 of the Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949 and Article 23 of the Convention on the Protection of Cultural Property in the Event of an Armed Conflict of 14 May 1954

First Geneva Convention of 1949

1954 Hague Convention

Article 9 The provisions of the present Convention constitute no obstacle to the humanitarian activities which the International Committee of the Red Cross or any other impartial humanitarian organization may, subject to the consent of the Parties to the conflict concerned, undertake for the protection of wounded and sick, medical personnel and chaplains, and for their relief.

Article 23. Assistance of UNESCO 1. The High Contracting Parties may call upon the United Nations Educational, Scientific and Cultural Organization for technical assistance in organizing the protection of their cultural property, or in connexion with any other problem arising out of the application of the present Convention or the Regulations for its execution. The Organization shall accord such assistance within the limits fixed by its programme and by its resources. 2. The Organization is authorized to make, on its own initiative, proposals on this matter to the High Contracting Parties.

Having again as an example the work of the ICRC, the authors of Article 23 intended to exclude any assistance from UNESCO of a political or military character:⁶² UNESCO could assist States inter alia in the creation of National Committees for the Protection of Cultural Property; affixing distinctive signs to identify historical monuments; the construction of safe havens; and in the elaboration of protecting measures such as plans for bombardments.⁶³ This assistance is limited, however, to UNESCO’s programme and budget. It cannot create extraordinary expenses for the organisation or State Parties. Moreover, this Article appears to exclude the belligerents from the process, which was interpreted by the UK Government during the conference for the Convention adoption as a violation of State sovereignty.⁶⁴ This exclusion was rejected by States who understood that the suggestions and proposals made by UNESCO will still depend on the approval of the concerned State.⁶⁵ Figure 19.2 illustrates the workings of the assistance procedure.

Figure 19.2 UNESCO assistance under the 1954 Hague Convention

One interesting example of UNESCO assistance occurred in 1956 and 1957, when Professor Gérard Garitte, at the request of the UNESCO Member States, carried out a mission to Egypt and Israel. He prepared a detailed report on the state of the monastery of Saint Catherine (Sinai) and made several suggestions for its protection.⁶⁶

It is, therefore, within this technical, even apolitical, mandate that UNESCO should seek to attempt to resolve disputes.⁶⁷ However, whereas Article 22 stipulated the possibility for a meeting between Parties presided over by a Protecting Power appointed by both Parties, Article 23 can be applied whenever UNESCO or other States have a concern for the protection of cultural property, without the necessity to appoint a neutral party – the neutral party can be UNESCO itself. A supplementary step – negotiations to agree on a Protecting Power – is thus suppressed. However, Cambodia did not invoke explicitly Article 23 of the 1954 Hague Convention when seeking assistance from UNESCO to protect the Temple of Preah Vihear. It should be mentioned that another, later convention, the Convention Concerning the Protection of the World Cultural and Natural Heritage (the 1972 World Heritage Convention), adopted on 16 November 1972, also provides for UNESCO assistance in relation to World Cultural Heritage included in the World Heritage List.⁶⁸ This UNESCO assistance is often granted.

19.5 UNESCO’s Response to Cambodia’s Request

After receiving the Cambodian request for assistance, the UNESCO Director-General asked his legal adviser for recommendations on how to proceed. A memo dated 4 May 1966 analysed the implementation mechanism of the 1954 Hague Convention:

The control of [the application of the 1954 Hague Convention] is entrusted, under these conditions, to authorities (protecting powers, commissioners general, etc.) which are only designated when this conflict arises. This control is carried out according to a mechanism which is only implemented at that time and which does not currently exist.

Nothing in the note of the Delegation of Cambodia appears to state [the situations that may attract the application of the Convention. However, a request to safeguard the Temple] is not necessarily limited to the 1954 Convention.

In any case, there is a provision in [the Convention], Article 23, which provides that the Contracting Parties may call upon the technical assistance of the Organization in respect of any problem arising from the application of this instrument.

I believe that in the absence of a control mechanism provided for in the Convention, it is up to the Director-General to inform the Thai Government of the protest he has received, to express his concern for the preservation of the temple and to ask Thailand to respond to the allegations.⁶⁹

According to advice provided to the Director-General, a ‘fact-finding’ mission – that is, technical assistance with the objective of assessing the factual circumstances that endangered the cultural property – ‘would go beyond the strict framework of the application of the 1954 Convention but … would seem to correspond to its spirit’.⁷⁰ However, after a study of the potential political consequences of UNESCO’s intervention, and given that the case had been submitted to the UN Secretary-General by the Cambodian Government; the Director-General decided against UNESCO involvement.⁷¹ Several UN missions were sent to the region between 1958 and 1968.⁷² For its part, the UNSC also has appointed a special representative of the Secretary-General to both countries to review the situation and propose solutions.⁷³

Thus, even if UNESCO is the specialised organisation for the protection of cultural heritage, the UNESCO Director-General understood that the UN Secretary-General had more means and tools to respond to the conflict. According to the Director-General, a more comprehensive solution that included the protection of cultural property, civilians and civilian property was preferred.

A similar decision to refer the protection of cultural heritage to the UN Secretary-General was taken during the conflicts in the Balkans:⁷⁴

The Director-General of UNESCO, Mr Koïchiro Matsuura, has however clearly defined on several occasions what should be the exact role of the Organization in [situations of armed conflicts]: not to intervene during the period before the conflict, to try to prevent it, or after the end of the fighting to try to rebuild a peace process between the community, throughout appropriate action in the various fields of competence of UNESCO.⁷⁵

UNESCO has, however, granted some assistance to Cambodia in another conflict, with Vietnam. On 8 June 1970, the Permanent Delegate to UNESCO sent a letter to the Director-General expressly requesting assistance under Article 23 of the 1954 Hague Convention.⁷⁶ This time, UNESCO provided assistance to Cambodia for the protection of historical monuments. A technical mission was sent to Cambodia to assess necessary measures to protect cultural property and the following recommendations were made: (a) to send a mission to assist in the safe packing and storage of valuable objects, (b) to send a mission to advise Cambodian authorities on methods to be used to protect cultural property against fire and the effects of bombardments, and (c) to appoint a high-ranking technical adviser to supervise operations from the technical point of view. This assistance demonstrates UNESCO can sometimes intervene in ongoing conflicts, however, the assistance provided will be limited to the Party that made such a request and UNESCO should not interfere in ongoing hostilities. Thus, UNESCO has continued to preserve its position as a neutral agency.

A gap in available information about the situation of the protection of Cambodian cultural heritage follows this request. This may be due to the civil war that started in 1970, the establishment of the Khmer Rouge regime (1975–1979) and the ‘tutelage’ of Cambodia by the Vietnamese who withdrew their armed forces only in 1989.⁷⁷ In the ICJ reinterpretation proceedings Cambodia acknowledged that it did not protest the Thai occupation of an area surrounding the Temple ‘during the period of armed conflict in Cambodia or during the succeeding years’.⁷⁸

19.6 Request for Inscription of the Temple on the UNESCO World Heritage List

Cambodia’s request for the Temple’s inscription in the UNESCO World Heritage List was made in 2007 and submitted that ‘the entire promontory of Preah Vihear, as well as the hill of Phnom Trap immediately to the west of the promontory’, were within Cambodian territory.⁷⁹ The Cambodian Government submitted that the Temple and a buffer zone – an area necessary to the application ‘to give an added layer of protection to the property’⁸⁰ – were both within its territory. Thailand contested the Cambodian submission and argued that the border submitted by Cambodia was inaccurate. The Thai Government added to the listing procedure a different map that included a buffer zone on Thai territory. The International Council on Monuments and Sites (ICOMOS) study undertaken for the inscription of the Temple in the World Heritage List observed that

the precise location of the frontier between Cambodia and Thailand to the north of the nominated site is currently the subject of a dispute between the two States Parties. The property nominated … and parts of its buffer zone lay partly within the disputed area.⁸¹

The site as inscribed in July 2008 excluded the disputed area,⁸² maybe as an easy solution to assure the inclusion of the Temple without any further delay. However, following the site’s inscription, several incidents took place in the area surrounding the Temple, endangering it. Two UNESCO assistances (as per Article 13 of the 1972 World Heritage Convention⁸³) were approved for the Temple Preah Vihear: one assistance for the Conservation and Management of the Preah Vihear Temple adopted in 2009 and one emergency assistance for the World Heritage property ‘Temple of Preah Vihear’ adopted in 2011.⁸⁴

19.7 Referral to the UN Security Council and Establishment of a Joint Border Commission

The UNSC has also been called to act in this conflict. On 18 July 2008, the Permanent Representative of Cambodia to the United Nations addressed a letter to the President of the Security Council. In this letter, the Cambodian Permanent Representative recalled the inscription of the Temple in the World Heritage List and alleged that

[on 15 July 2008] about 50 Thai soldiers crossed into Keo Sikha Kiri Svara pagoda, located inside Cambodian territory, about 300 metres from the Temple of Preah Vihear. By 16 and 17 July 2008, the number of Thai soldiers on the grounds of the pagoda had increased to 480.

In a letter of 21 July 2008, the Cambodian Permanent Representative asked the President of the UNSC to convene an urgent meeting.⁸⁵ In a letter of 22 July 2008 from the Permanent Representative of Thailand addressed to the President of the Security Council, the Thai Government asked for bilateral consultations and negotiations.⁸⁶ A Joint Border Commission, created by a memorandum of understanding,⁸⁷ was thus established to survey and demarcate the entire Thai–Cambodian border.⁸⁸ However, after years of on-again-off-again talks, bilateral diplomacy met a standstill ‘because the approval of the minutes, apparently a minor matter, became a highly politicised issue in Thailand’.⁸⁹

No final and peaceful solution was achieved through this forum. In February 2011, soldiers from Thailand and Cambodia clashed once again in the area surrounding the Temple. According to a UNSC Report, ‘the clashes may have been prompted by rising tensions associated with the sentencing by a Cambodian court on 1 February of two members of a Thai nationalist movement to up to eight years in prison after finding them guilty of espionage.’⁹⁰ At the same time, the UNESCO Director-General expressed concern over the escalation of violence between Thailand and Cambodia.⁹¹ For the protection of the Temple of Preah Vihear, UNESCO sent a mission to assess the state of the Temple⁹² and convened a meeting with Thai and Cambodian prime ministers to discuss measures to protect the Temple.⁹³

19.8 Request for the Interpretation of the 1962 ICJ Judgment

On 28 April 2011, Cambodia submitted to the ICJ a request for interpretation of the 1962 judgment in the Case Concerning the Temple of Preah Vihear. The Cambodian request concerned the meaning and scope of the 1962 judgment, particularly concerning the territorial scope of the second operative paragraph – ‘that Thailand is under an obligation to withdraw any military or police forces, or other guards or keepers, stationed by her at the Temple, or in its vicinity on Cambodian territory’ – namely the territorial extent of the ‘vicinity’ of the Preah Vihear Temple. In 1962, when Thailand withdrew its armed forces deployed in the Temple area, it built a ‘barbed wire fence which divided the Temple ruins from the rest of the promontory of Preah Vihear’.⁹⁴ Such a fence was considered by the Cambodian Government as ‘incompatible with the 1962 judgment’.

On 18 July 2011, the ICJ rendered a provisional measure ordering ‘both Parties [to] immediately withdraw their military personnel currently present in the provisional demilitarised zone and refrain from any military presence within that zone and from any armed activity directed at that zone’.⁹⁵ On 11 November 2013 the Court gave judgment on the question of interpretation of its 1962 decision. The Court stated that ‘Cambodia had sovereignty over the whole territory of the promontory of Preah Vihear … and that, in consequence, Thailand was under an obligation to withdraw from that territory the Thai military or police forces, or other guards or keepers, that were stationed there’.⁹⁶

In the Court’s judgment of 11 November 2013, the religious and cultural significance of the Temple for the peoples of the region was recognised, and the Court recalled that ‘under Article 6 of the World Heritage Convention, to which both States are Parties, Cambodia and Thailand must co-operate between themselves and with the international community in the protection of the site since it is listed as a World Heritage’.⁹⁷ Moreover, it stated that

… each State is under an obligation not to ‘take any deliberate measures which might damage directly or indirectly’ such heritage. In the context of these obligations, the Court wishe[d] to emphasize the importance of ensuring access to the Temple from the Cambodian plain.⁹⁸

This time round the ICJ referred to international legal obligations to protect cultural heritage and to the importance of the Temple as such. The 1954 Hague Convention is not cited, only the 1972 World Heritage Convention. Maybe the expected demarcation of the border consistent with the 1962 judgment pre-empted the idea that international law on the protection of cultural property in armed conflict, or occupation, would apply, since it is forbidden to deploy military forces in another State’s territory. Judge Cançado Trindade extensively explored the cultural significance of this Temple in his Separate Opinion, demonstrating a special interest in the field, and it may be due to his interest and influence that the Court emphasized the importance of protecting the Temple as cultural heritage.⁹⁹ No more clashes between Thailand and Cambodia have been reported since 2011,¹⁰⁰ however, the decrease of tensions is thought to be due to the general improvement in bilateral relations.¹⁰¹

19.9 Conclusion

UNESCO is the main organisation dealing with the protection of cultural heritage; thus, States often request assistance from UNESCO in the international protection of cultural heritage in times of crisis. However, UNESCO’s ability to provide a satisfactory response seems limited. Over the years, certain States have asked for UNESCO to help them ensure compliance with the 1954 Hague Convention. Most of the steps taken by UNESCO focus on prevention rather than intervention, as implied in the Jiri Toman’s Commentaries to the 1954 Hague Convention on the Procedure for Conciliation and Technical Assistance, and are employed only when States involved in the disaster, crises or conflict agree. Requests can be refused for political reasons, as was the case with Cambodia in 1966 and in the Balkans conflict.

Even if the Temple of Preah Vihear case was referred to be dealt with through the office of the UN Secretary-General and by the UN Security Council, UNESCO as the related specialised agency should have played a more important role. In this particular case, only the ICJ has been able to directly address the legal dispute on the territory sovereignty – it has ruled that the Temple is on Cambodian territory, a fact recognised by international organisations and States. However, compliance with the ICJ’s decisions has also met difficulties. Despite several UN missions sent to the region and the establishment of a Joint Border Commission, no long-lasting solution has been found. The action by the UNSC and United Nations General Assembly (UNGA), through missions sent in loco, did not provide a permanent solution, and tensions between both States remained.

Nowadays, a synergy between organisations is proposed to provide better protection of cultural property in times of conflict. In this sense, United Nations peacekeeping forces have also acted to protect tangible and intangible cultural heritage.¹⁰² This approach has sometimes been successful, for instance in the case of Cyprus. Though not involved in a situation of active conflict, the creation in 2009 of the Technical Committee on Cultural Heritage for the protection of cultural heritage in Cyprus is an example of an operative partnership between different actors, including the European Union and the UNDP.¹⁰³ However, once again, the main problem – how to enforce compliance in practice – was not addressed. The best answer to these difficult situations may lie in the broader context of bilateral diplomacy. For the Preah Vihear Temple case, the strengthening of Cambodian–Thai relations, notably economic relations, has stabilised the conflict, even if the two countries usually avoid addressing the issue regarding the border.¹⁰⁴

20 The South China Sea Arbitration Navigating Compliance Strategies through the Lens of Raya and the Last Dragon

Mary Jude Cantorias Marvel

20.1 Introduction

This chapter offers an analysis of the South China Sea (SCS) Arbitration (The Republic of the Philippines v The People’s Republic of China) (SCS Arbitration) and the corresponding arbitral award (the Award),¹ using a popular animated film as a lens. The film is Disney’s Raya and the Last Dragon (Raya), which tells the story of the fictional land of Kumandra, a once-prosperous nation, and its peaceful and united people, where hundreds of years ago, magical dragons lived harmoniously amongst humans. Then evil spirits called the Druun mysteriously appeared and began to ravage the once wealthy unified nation. The people of Kumandra, distrusting each other, splintered into five warring nations/tribes: Fang, Heart, Tail, Spine, and Talon. It is against the backdrop of these fictional nations fighting each other for scarce resources that I approach this analysis. Law and Film has become a relatively mature discipline, and within the broader field of “law-in-film,” there is now extensive scholarship that studies the impact of film in shaping our expectations of legal processes and how the public at large view law and justice.² It has been said that film is an effective tool to communicate ideas³ and the emotional impact of a film may shape public opinion. The conflict in Raya effectively communicates that conflict over scarce resources and overlapping territories cannot be resolved by aggression, mutual distrust, and lack of cooperation. This chapter analogizes the themes in Raya with the factual background of the SCS Arbitration with the aim of reshaping international support to help bring about compliance with the Award. While the 1982 United Nations Convention on the Law of the Sea (UNCLOS or the Convention) lacks a compliance mechanism, this chapter envisages that the Convention’s conciliation procedure may offer a way forward if China does not voluntarily comply with the Award.

The first part of this chapter will introduce the SCS Arbitration, conducted under Annex VII of the UNCLOS, and discuss the enforcement of such awards. The second part of the chapter will explore further whether the Award may be capable of “enforcement,” if necessary, through alternative, more practical means. The third and final part of this chapter will present a path for a cooperative process that reimagines bringing China back to the table in light of the dispute resolution strategies and tactics used in Raya and their potential to inspire renewed efforts towards a settled outcome.

20.2 The Annex VII Arbitration between the Philippines and China

As a voluntary dispute resolution mechanism where the parties submit their dispute to one or more arbitrators who render a binding arbitral award, arbitration is further distinguished by the principle of party autonomy. However, arbitration can only effectively function within the framework of a legal system establishing some “coercive” rules. In inter-State arbitration, these coercive rules will not always extend to the types of recognition and enforcement processes seen in international commercial arbitration. The Award issued in favor of the Philippines in the SCS Arbitration has yet to be enforced or even recognized by China. The Philippines finds itself in a conundrum as the recipient of a binding arbitral award against China that, to this day, lacks an avenue of enforcement.

The Philippines initiated the SCS Arbitration proceedings on 22 January 2013,⁴ invoking Article 287 of the UNCLOS, to which both the Philippines and China are party. The Convention provides compulsory third-party dispute settlement when parties cannot settle a dispute by negotiation, conciliation, or other peaceful means. States that do not make a written declaration setting out their choice of procedure for dispute resolution are deemed to have accepted Annex VII arbitration, as is the case between China and the Philippines.⁵ Accordingly, the SCS Arbitration was heard by an arbitral tribunal operating under UNCLOS Annex VII.

The Philippines requested the constitution of the tribunal under Annex VII (the Tribunal) and on 22 January 2013 appointed the first Tribunal member under Article 3(b) of Annex VII of the Convention. On 23 March 2013, the International Tribunal for the Law of the Sea (ITLOS) President appointed the second Tribunal member for China upon the Philippines’ request pursuant to Articles 3(c) and 3(e), which empower the ITLOS President to make such an appointment when a party fails to choose their party-appointed arbitrator within the allowed period.⁶ Article 3(e) requires the ITLOS President to make such an appointment from a list of arbitrators maintained by the UN Secretary-General within thirty days of receiving such a request and in consultation with the parties. China did not participate in this process. Thereafter, the Philippines requested the President of ITLOS to appoint the three remaining members of the Tribunal under Article 3(d) and (e). On 24 April 2013, the President of ITLOS completed the constitution of the five-member tribunal, including the appointment of the Tribunal President. On 5 July 2013, the President of the duly constituted Tribunal requested the Permanent Court of Arbitration (PCA) to serve as registry for the proceedings,⁷ which the PCA accepted, and the Philippines acceded to. Consistent with its stance that the Tribunal had no jurisdiction in the case, China neither confirmed nor refused approval of the PCA registry appointment.⁸ The seat of arbitration was in the Netherlands.⁹

The Philippines filed the arbitration to address aspects of the legal dispute between the parties’ respective rights and entitlements in the South China Sea after failed bilateral and multilateral negotiations (involving other Association of Southeast Asian Nations (ASEAN) member States) and consultations with China.¹⁰ Meanwhile, the Philippines ably characterized the subject matter in these proceedings as involving only the interpretation and application of relevant UNCLOS provisions and thus falling well within the jurisdiction of the Tribunal. The Philippines argued that China’s claim to “historic rights,” together with China’s “nine-dash line” and associated action, was effectively preventing the Philippines from exercising its rights under the Convention, to wit:

The nine-dash line embraces over two million km¹¹ of maritime space, more than 60 percent of the totality of the South China Sea, one of the largest and most important semi-enclosed seas in the world, that is abutted by no less than seven coastal States. China’s assertion of these purported “historic rights,” and its recent efforts to enforce them, have unlawfully interfered with the enjoyment and exercise by the Philippines of its rights under UNCLOS.¹²

China, through public statements, diplomatic correspondence, and proactively, by way of China’s occupation or control of eight maritime features in the SCS, had claimed “sovereign rights and jurisdiction over the waters, seabed and subsoil of the South China Sea”¹³ outside the entitlements allowed under UNCLOS but claimed by China to fall within its territory as encompassed by the “nine-dash line.” According to China, “its ‘historic rights,’ which are said to pre-date and exist apart from the Convention, entitled it alone to exercise ‘sovereign rights’ in these areas, including the exclusive right to exploit living and non-living resources, and to prevent exploitation by other coastal States, even in areas within 200 nautical miles (nm) of their coasts.”¹⁴ The Philippines alleged that China’s exaggerated maritime claims and attempts to enforce them were contrary to the Convention and without lawful effect and had violated the Philippines’ rights under the Convention.¹⁵ The Philippines went on to argue both:

(a) that any rights that China may have had in the maritime areas of the South China Sea beyond those provided for in the Convention were extinguished by China’s accession to the Convention, and (b) that China never had historic rights in the waters of the South China Sea.¹⁶

The Philippines expertly crafted its submission not as one concerning territorial sovereignty or maritime boundary delimitation but rather as a request for the determination of whether certain “insular features in the South China Sea were either rocks (entitled to a 12 nm territorial sea), low-tide elevations with no territorial sea, or islands (entitled to a 200 nm zone),”¹⁷ even though sovereignty over the features in question remained disputed between the parties.

The Tribunal held it had jurisdiction to decide the South China Sea case under UNCLOS.¹⁸ Thus, the issues raised by the Philippines were determined to be arbitrable and within the Tribunal’s remit.¹⁹ On 12 July 2016, the Tribunal issued its unanimous merits Award.

Commentators have hailed the Award as a “landmark,” the most crucial part of which is the Tribunal’s finding that “China’s claim to ‘historic rights’ to the living and non-living resources within the ‘nine-dash line’ is incompatible with the Convention to the extent that it exceeds the limits of China’s maritime zones as provided for by the Convention.”²⁰ Interpreting the text of the Convention, the Tribunal held that the Convention grants exclusive sovereign rights in favor of the coastal State to the living and non-living resources within its exclusive economic zone and that, under the Convention, claims of sovereign rights over living and non-living resources would generally be incompatible with claims of historic rights to the same resources, specifically if such historic rights are claimed to be exclusive, as in China’s case.²¹ The Tribunal concluded that by its text, the Convention has comprehensively addressed the rights of other (coastal) States within the areas of the exclusive economic zone and continental shelf and leaves no space for an assertion of historic rights.²² The Tribunal further concluded that upon China’s accession to the Convention “any historic rights that China may have had to the living and non-living resources within the ‘nine-dash line’ were superseded, as a matter of law and as between the Philippines and China, by the limits of the maritime zones provided for by the Convention.”²³

The invalidity of China’s “nine-dash line” implied a recognition of the integrity of the Philippines’ full 200 nm exclusive economic zone (EEZ) in the West Philippine Sea. In effect, the Award affirms that the Philippines’ maritime area is in fact bigger than the combined land area of all its islands and that all the living and non-living resources, such as fish, gas, oil, and other natural resources, in this huge maritime area belong to this archipelagic State – the Philippines.²⁴ Additionally, the Award would, in ordinary circumstances, also be expected to secure the freedom of the high seas in this part of the world. The waters and fish in the high seas, including the mineral resources outside the extended continental shelf, unequivocally now form part of the global commons,²⁵ and are therefore res communis.

As an offshoot of the invalidity of the “nine-dash line,” the Philippines’ other claims were also predominantly decided in its favor. The other salient points of the Award may be broadly categorized as involving a ruling on either “the status of certain maritime features in the South China Sea or the legality of Chinese activities in the South China Sea.”²⁶

The Tribunal ruled that the Spratly Islands do not generate an EEZ because they are not islands in a strict legal sense but are instead categorized as rocks²⁷ or low-tide elevations. The Tribunal concluded that the high-tide features in the Spratly Islands (including Itu Aba, Thitu, West York, Spratly Island, South-West Cay, and North-East Cay);²⁸ the high-tide features at Scarborough Shoal;²⁹ the high-tide features at Johnson Reef, Cuarteron Reef, and Fiery Cross Reef;³⁰ the high-tide features at Gaven Reef (North) and McKennan Reef, are all considered rocks.³¹ They are not, in their own natural condition and without relying on external human intervention, capable of sustaining human habitation within the meaning of Article 121(3) of the Convention, nor of sustaining an economic life of their own, and thus have no EEZ nor continental shelf.³²

Having already invalidated the “nine-dash line,” the Tribunal also concluded that there is no legal basis under the Convention for China’s claim of any entitlement to maritime zones in the area of Mischief Reef, Second Thomas Shoal, and Subi Reef. Being low-tide elevations, they generate no entitlement to maritime zones of their own that would overlap with the entitlement of the Philippines to an EEZ and continental shelf generated from baselines on the island of Palawan.³³ Mischief Reef and Second Thomas Shoal are well within the Philippines’ 200 nm off Palawan Island. As between the Philippines and China, Mischief Reef and Second Thomas Shoal lie within the Philippines’ EEZ and continental shelf.³⁴

As the Convention is clear on coastal State rights in EEZs and on continental shelves,³⁵ the Tribunal held that China had breached UNCLOS provisions and violated the Philippines’ sovereign rights to its EEZ and continental shelf,³⁶ as underpinned by the events and acts committed by China in the years leading up to the filing of the arbitral proceedings, such as

interfering with the Philippine fishing and hydrocarbon exploration; constructing artificial islands; failing to prevent Chinese fishermen from fishing in the Philippines’ EEZ. China also interfered with Philippine fishermen’s traditional fishing rights near Scarborough Shoal … China’s construction of artificial islands at seven features in the Spratly Islands, as well as illegal fishing and harvesting by Chinese nationals, violate UNCLOS obligations to protect the marine environment. Finally, Chinese law enforcement vessels unlawfully created a serious risk of collision by physically obstructing Philippine vessels at Scarborough Shoal in 2012. China has aggravated and extended the disputes through its dredging, artificial island-building, and construction activities.³⁷

Although the Award is binding,³⁸ the UNCLOS does not provide for an enforcement mechanism, unlike for instance, the World Trade Organization (WTO) dispute settlement mechanism, which has the WTO Dispute Settlement Body (DSB). The DSB is the official WTO body with powers to monitor disputants’ compliance with dispute settlement reports/rulings and to authorize, upon request by the party invoking the dispute settlement procedures, suspension of concessions or other obligations under the covered agreements if no satisfactory compensation has been agreed within the mandated period.³⁹

The UNCLOS and the WTO Agreements have notable similarities in their structure and scope in that they are both multilateral agreements having a broad mandate and reach. They both include arbitration as a dispute resolution mechanism that the parties may choose to resolve their disputes.⁴⁰ But, while these similarities exist, significant differences remain concerning enforcement. Where a dispute settlement report has been adopted, and the losing WTO Member fails to correct its breach of the relevant WTO rules, the DSB can authorize the prevailing State party to take appropriate countermeasures.⁴¹ Disputes over the scope of such measures may themselves be the subject of Panel and Appellate Body proceedings.⁴² Such measures are not made available to State parties as part of the UNCLOS dispute settlement regime,⁴³ although general international law will continue to apply. In respect of damage caused by pollution of the marine environment, States are to ensure the availability of compensation through their domestic legal systems⁴⁴ and to cooperate in the implementation and development of international law on liability and compensation.⁴⁵

Arbitration under UNCLOS can also be compared and contrasted with investor-state arbitration. In both UNCLOS and International Conve-ntion for the Settlement of Investment Disputes (ICSID Convention) an award of a tribunal is binding on all parties to the proceedings and each party must comply with it pursuant to its terms.⁴⁶ However, in respect of ICSID arbitration, if a party fails voluntarily to comply with an award, the other party can seek to have the pecuniary obligations recognized and enforced in the courts of any ICSID member State as though the award were a final judgment of that State’s courts.⁴⁷ There is no similar mechanism available in UNCLOS.⁴⁸

This is not however to suggest that this type of remedy (i.e., imposition of countermeasures as in the WTO) or legal process (enforcement action in respect of pecuniary obligations before a national court as in investment treaty arbitration) would be helpful or even effective in the SCS Arbitration. The latter does not involve trade issues or pecuniary obligations, and economic sanctions or judgments in respect of unmade payments do not seem appropriate.

Nevertheless, the Award in favor of the Philippines remains final and binding between the parties and must be complied with by the parties to the dispute.⁴⁹ The Award is without appeal as the parties had not agreed to an appellate procedure in advance.⁵⁰ Failure by one State party to participate does not change nor affect the final and binding nature of the Award.

20.3 Compliance Mechanisms for the SCS Arbitral Award

Years after the UNCLOS was adopted, scholars like Professor Robin Churchill have suggested that UNCLOS should have included the type of non-compliance procedure now found in several multilateral environmental agreements (MEAs).⁵¹ Professor Churchill has further elaborated that

UNCLOS suffers from widespread systemic non-compliance, e.g. illegitimate baselines, claims to coastal State jurisdiction in the contiguous zone and EEZ in excess of that permitted by UNCLOS, IUU fishing, sub-standard ships etc. The UNCLOS dispute settlement system has not (yet) really been used to address such non-compliance. To have included in UNCLOS the less confrontational non-compliance procedures (NCPs) of MEAs would have potentially been a very useful tool to address such non-compliance.⁵²

In the case of the SCS dispute, would the non-adversarial nature of NCPs have led to a creative path in addressing, for example, the issues of the “nine-dash line” claim based on China’s so-called “historic rights” and of China’s encroachment on the Philippines’ EEZ?

Non-compliance mechanisms (NCMs) may be considered a better alternative to the more traditional and adversarial dispute settlement mechanisms that may be resorted to under UNCLOS, such as the ICJ, ITLOS, and even Annex VII arbitration. Although the primary aim of NCMs is not dispute settlement, they nonetheless often produce that effect.⁵³ This may be attributed to the following: firstly, they provide a reportorial mechanism on how State parties implement their treaty commitments; secondly, if there are allegations of acts of non-compliance, they offer a venue for examining these incidents; and thirdly NCMs offer mechanisms for direct support to address these incidents.⁵⁴

When the Philippines filed the arbitral proceedings in 2013, an NCM was not available. However, the Philippines’ foreign policy (then led by the late President Benigno Aquino) was to obtain an unequivocal and enduring ruling that would outline the rights of the Philippines to its EEZ and its continental shelf, and recognize its citizens’ unhampered rights to the fish, oil, gas, and other natural resources in these zones for its own use and benefit. The Chinese government’s strategy, on the other hand, was to seek to muster international support for its stance as well as garner political capital from its own citizens.

The economic and military might of China seem daunting to a smaller developing State like the Philippines, but the SCS Arbitral Award has given the Philippines political and moral leverage. However, although the Philippines obtained the best possible outcomes from this arbitration against China, the nature of the claims raised by the Philippines lend themselves to a most difficult enforcement or compliance process: for example, in respect of the claim of sovereign rights as compared with China’s “nine-dash line” claim to “historic rights”; EEZ boundaries; classification of a land feature as either an “island” or rock; the claimed violation by China of its international navigation and marine conservation treaty obligations during law enforcement and land reclamation activities;⁵⁵ illegal fishing and harvesting by Chinese nationals; and violation of UNCLOS obligations to protect the marine environment.⁵⁶ The issues raised by the Philippines did not entail trade or investment interests, but rather “largely non-economic calculations.”⁵⁷ Such interests are not easily quantifiable in monetary terms, unlike for example a commercial dispute involving a mining contract and its interpretation or application, which might be unilaterally submitted to binding arbitration,⁵⁸ and dealt with through a monetary award. A claimant making these kinds of claims, as the Philippines did, is generally looking for a resumption of compliance by the other party rather than compensation. At the same time, the claims went beyond ordinary claims of maritime pollution or violations of marine conservation that might more obviously have been susceptible to multilateral NCPs, if such procedures had been available, or simply to “performance review information (self-reporting)”;⁵⁹ or where improved compliance might be brought about through direct support such as by providing technical and financial assistance.⁶⁰

As a push-back of sorts, without an outright butting of heads with China, the Philippines can and must continue to exercise its rights and jurisdiction over its 200 nm EEZ and its 12 nm territorial sea. Entering into multilateral arrangements with other neighbouring coastal States on the conservation and management of living resources in the high seas⁶¹ could arguably be viewed as a form of unilateral “enforcement,” as a confirmatory act of the ruling that China’s “nine-dash line” claim is inconsistent with UNCLOS and that the high seas, as part of res communis, shall be enjoyed as a global commons.⁶² The conclusion of a new agreement on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (ABNJ) emphasizes that the “high seas and marine ABNJ are open for legitimate and reasonable use by all States, and may not be appropriated to the exclusive sovereignty of any one State.”⁶³

Further, UNCLOS does include provisions on support for developing State parties⁶⁴ to assist them in discharging their primary marine environmental obligations, including technical assistance.⁶⁵ Such assistance may be provided in the form of scientific, educational, and other technical assistance programmes aimed at marine environmental conservation and marine pollution control and prevention;⁶⁶ as well as “marine research and exploitation of the deep seabed; providing available scientific information relevant to the conservation of fish stocks and catch and fishing statistics.”⁶⁷ This assistance could help the Philippines advance its marine science technological capacity or even strengthen the country’s existing technology infrastructure for the exploration and exploitation of its marine resources,⁶⁸ its EEZ, and continental shelf. This would help the Philippines exercise its rights under UNCLOS, consistent with the SCS Arbitration Award.

20.4 Reimagining Compliance: Film and Reality

Having envisaged aspects of a unilateral “enforcement” of the Philippines’ rights under the SCS Arbitral Award, we may now examine the potential for China’s cooperative compliance. Reimagining even a powerful State like China voluntarily complying with the Award is not far-fetched. China has quite a history of voluntarily complying with its international obligations, and, despite appearances, still aims to be seen as a rules-based player. China is not completely immune to the reputational costs of completely disregarding the Award and “compliance with the arbitral award may also be in China’s national interests.”⁶⁹ China did participate in the arbitral proceedings in certain ways, despite its repeated claims that it did not recognize the Tribunal’s jurisdiction and all the proceedings therein. Indeed one writer describes China’s non-participation as only “nominal.”⁷⁰ China’s behavior during the arbitration and after the Award was issued showed China maintaining “informal communications with the tribunal to partially comply with some requirements during the proceedings.”⁷¹ For instance, although China did not submit a counter-memorial to the Tribunal, it issued a position paper (identifying what China said it believed were the reasons for the Tribunal’s lack of jurisdiction) corresponding to the Tribunal’s timeline on 7 December 2014. China’s embassy in the Netherlands requested, by way of a note verbale deposited with the PCA, as the registry, that its position paper be forwarded to the Tribunal. Finally, China reiterated all of its counter-arguments in a remark by the spokesperson of the Ministry of Foreign Affairs (MFA) released on 24 August 2015.⁷²

China is not oblivious to how the international community will react to a hardline stance of complete non-compliance. Proof of this is seen in China’s efforts to garner international support for its claims. Indeed, public opinion has mattered to China because at the time of the proceedings, it alleged that it had the support of about sixty-five other States, of which, eventually, thirty-one would publicly confirm, and four would deny this.⁷³ When a ruling was issued, five States opposed the Award, and nine States would not mention the Award, but issued neutral statements. At the same time, thirty-three gave positive statements without necessarily calling for China to comply, and only seven outrightly called for the parties to comply.⁷⁴ As of 2020, Vietnam and Malaysia tacitly supported the Award by rejecting China’s “historic rights,” while Indonesia “endorsed” the Award, with Taiwan stating that “any claim inconsistent with international law should not be accepted.”⁷⁵ As at August 2, 2021, the Asia Maritime Transparency Initiative and the Center for Strategic and International Studies had “identified 8 governments that have publicly called for the ruling to be respected, 35 that have issued generally positive statements noting the verdict but have stopped short of calling for the parties to abide by it, and 8 that have publicly rejected it.”⁷⁶

Meanwhile, the United States continues to assert a foreign policy consistent with the law as the Tribunal viewed it. The US Navy conducts ongoing freedom of navigation operations and naval exercises with allies and partners and the US Air Force has ramped up military surveillance flights in the region. India aligns with US policy, supporting freedom of navigation and overflight in the SCS and deploying its Indian Navy warship to the SCS. Japan has recognized the Award by performing anti-submarine drills in the SCS.⁷⁷ All these activities underscore the “geo-strategic significance”⁷⁸ of the SCS – a “strategic maritime link between the Indian Ocean and the Pacific Ocean stretching from the Strait of Malacca to the Strait of Taiwan.”⁷⁹ The SCS connects the eight South-East Asian countries of Brunei, Cambodia, Indonesia, Malaysia, the Philippines, Singapore, Thailand, and Vietnam; as well as China and Taiwan “into global trade flows and is essential for their livelihoods and food security.”⁸⁰ Viewed through this lens, the SCS conflict patently reflects a desire from all parties (including the nominal parties who submitted position papers or indirectly benefitted from the Award) to ensure the integrity of their territories, bearing in mind their respective national interests, as permitted under the UNCLOS.

The SCS Arbitral Award gives the disputants a reality test. The Award makes it clear that, by international law standards, the rules favor one party or are less favorable to the other, and international opinion may thus be influenced to retract or confirm public support. Therefore, public opinion (or international support) is central to a reimagined path of voluntary compliance by China with its international law obligations, or cooperation, as it were. While China has exerted certain efforts to influence international public opinion through think-tanks releasing position papers and other scholarly legal articles, there are also different modes of approach to such problems. Storytelling – compelling storytelling – can influence the discourse that shapes public perception (even international support), in general, and specifically concerning the SCS Arbitration. “The intermingling of truth and fiction in legal discourse is nothing new … and the best, most compelling stories are the ones that adapt familiar narrative forms featuring recognizable character types driven by ordinary feelings, motives, and desires.”⁸¹

In Raya, the answer to the question of “How does one go back to the negotiating table?” was hardly clear-cut. Still, the film eventually reached its primary goal – to have everyone cooperate to defeat the Druuns and give everyone an acceptable and fair slice of the proverbial pie. Although the situation in relation to the SCS Arbitration appears to be untidy, as in Raya, the Award can be used as a tool not to force “cooperation” from China but to impress upon China that it is to its best (reputational) interest to follow a path of cooperation.

In Raya, the Heart tribe and its chief became the “guardians” of the ancient Dragon Gem that not only kept evil Druuns away but also served to remind the peoples of Kumandra of their past, and of how the Druuns had ravished their lands, laying them to waste. The peace in Kumandra was fragile and kept barely intact by the Dragon Gem. Despite the advantage of having in its possession the Dragon Gem, the Heart tribe wanted to reach out to the other four tribes to ensure continuing peace in the region. The Heart tribe lowered its defenses and invited the leaders of the other tribes with their delegates to “share a meal.” However, Heart trusted all the opposing parties without caution, without an exit plan, and certainly without obtaining as much information as they could about the conflict and the negotiating positions and intentions of the other tribal chiefs. While everyone was busy enjoying the festivities, the only daughter of the Fang tribe’s tribal chief tried to steal the Dragon Gem from its highly secured vault. As the Heart tribe tried to stop the thief, other tribe leaders and their delegates made their own attempts to steal the Dragon Gem, which broke into pieces. This paved the way for the Druuns to resurface and lay waste to Kumandra once again.

The situation is different in the SCS dispute. The Award itself is the Philippines’ “shared meal” strategy – here is a paradigm that is rooted in international law and that the (international) “public” can get behind. However, the Philippines’ “shared meal” strategy is rules-based, and the Philippines is fully informed of everyone’s interests and positions, unlike in the film. In effect, and ironically enough, the Award itself becomes a source of expectations for compliance with international law, now or through future legal processes. After the Award was issued, China released a statement, a portion of which stated that

Pending final settlement, China is also ready to make every effort with the states directly concerned to enter into provisional arrangements of a practical nature, including joint development in relevant maritime areas, in order to achieve win–win results and jointly maintain peace and stability in the South China Sea.⁸²

This statement reflects that China does understand, and indeed recognizes, that the arbitral Award forms part of a broader paradigm in the South China Sea region. Every coastal State impacted by this Award may look to it as an authoritative statement of rights and obligations.

One potential pathway forward reimagines bringing China back to the table through conciliation. Conciliation is a well-established international dispute resolution process: “The main purpose of conciliation is to lead the parties to reach an amicable settlement of their dispute; its function is not to settle a dispute by applying law per se, but rather to bring the parties to an agreement by way of negotiation and compromise.”⁸³ Conciliation is also an UNCLOS process and in fact one of the options that other Filipino experts suggested, after the Philippines filed the arbitral claim, would have been preferable. Consider for instance the successful UNCLOS conciliation launched by East Timor with Australia,⁸⁴ that the latter opposed initially but which eventually led to an amicable agreement between the parties with the assistance of the Conciliation Commission.⁸⁵ There is nothing in the UNCLOS rules that prevents any State party from resorting to other “informal” conciliatory measures or even voluntary modes of compliance, even after a binding arbitral award has been issued, as in the case of the SCS Arbitral Award.

An audio-visual experience of a story can be an effective tool, and a film such as Raya and the Last Dragon may help us in distilling pathways forward to bring all concerned parties towards a settlement. A film can show heroes and anti-heroes and develop a narrative that persuades the public to choose sides. Although Raya was the apparent central character and the Heart tribe were presented as the “good side,” the movie nonetheless characterized the anti-heroine (Namaari of the Fang tribe) as likeable and someone the public can also support if she chooses to do the “right” thing. In the end, both Raya and Namaari were essential cogs in the machinery that would restore Kumandra to its peoples.