1 00:00:00,060 --> 00:00:07,970 I want to talk today about tactical admissions in international litigation. 2 00:00:07,970 --> 00:00:17,980 And I think it's probably best to start with a definition of what I mean by tactical admission. 3 00:00:17,980 --> 00:00:25,320 By admitting a certain fact or point of law that is in. 4 00:00:25,320 --> 00:00:35,170 Parties, a party can put a court or tribunal into a position to rule on the basis of that 5 00:00:35,170 --> 00:00:43,540 fact or point of law without having to take a decision on the disputed point. 6 00:00:43,540 --> 00:00:54,460 And of course, also without taking any evidence from that. But such admissions are not unusual in international litigation. 7 00:00:54,460 --> 00:01:04,480 For example, a party may admit the relevant coast for the purpose of maritime delimitation. 8 00:01:04,480 --> 00:01:12,370 A party may admits that a certain rule forms part of customary international law, 9 00:01:12,370 --> 00:01:26,170 or a party may admit that another party is or another state is, a party to a certain treaty. 10 00:01:26,170 --> 00:01:35,620 If a fact or point of law is accepted only for the purposes of the legal proceedings, 11 00:01:35,620 --> 00:01:46,150 and only with the aim to allow the Tribunal to reach a decision favourable to the party making the admission, 12 00:01:46,150 --> 00:01:52,630 such an admission may be termed a tactical admission. 13 00:01:52,630 --> 00:01:57,250 Tactical missions must be distinguished from ordinary, 14 00:01:57,250 --> 00:02:12,370 even if arguments where the party still leaves it to the court or tribunal to decide on whether the premise is fulfilled or not. 15 00:02:12,370 --> 00:02:24,820 I want to illustrate tactical missions by going back to the now infamous South China Sea arbitration. 16 00:02:24,820 --> 00:02:30,490 A lot has been written about the case, and it is fairly recent. 17 00:02:30,490 --> 00:02:41,380 So considering that this is an expert audience, I assume I don't need to give you any details of the case as such. 18 00:02:41,380 --> 00:02:48,830 So I want to go straight to the point. In its submission, Number 10, 19 00:02:48,830 --> 00:03:00,800 the Philippines requests that the arbitral tribunal to declare that I quote China has unlawfully prevented Philippine 20 00:03:00,800 --> 00:03:13,460 fishermen from pursuing a livelihood by interfering with traditional fishing activities at Scarborough Shoal. 21 00:03:13,460 --> 00:03:25,360 Scarborough Shoal is a high tide feature that generates its own entitlement to a territorial sea. 22 00:03:25,360 --> 00:03:41,730 During the proceedings, the Philippines clarified that the activities allege all occurred within the 12 nautical mile territorial sea. 23 00:03:41,730 --> 00:03:50,370 Finding that Scarborough Shoal had been a traditional fishing ground for fishermen of many nationalities. 24 00:03:50,370 --> 00:04:03,320 The tribunal declared that China had through the operation of its official vessels in the area from May 2012 onwards. 25 00:04:03,320 --> 00:04:15,880 Unlawfully prevented fishermen from the Philippines from engaging in traditional fishing at Scarborough Shoal. 26 00:04:15,880 --> 00:04:28,480 As the tribunal, as you know, was not competent to pronounce on the question of sovereignty over the islands in the South China Sea, 27 00:04:28,480 --> 00:04:34,720 it's tried to sidestep any decision or comment on sovereignty over Scarborough 28 00:04:34,720 --> 00:04:45,030 Shoal and the question in whose territorial sea the relevant incidents happened. 29 00:04:45,030 --> 00:04:52,860 The tribunal expressly stated that it did not have to rule on the question of sovereignty because it 30 00:04:52,860 --> 00:05:04,870 considered that the Philippines submission number 10 was based on one of two alternative premises. 31 00:05:04,870 --> 00:05:15,870 It then continued, and I quote. If on the one hand, the Philippines is sovereign over Scarborough Shoal, 32 00:05:15,870 --> 00:05:27,510 then the surrounding waters would constitute a territorial sea of the Philippines with all that follows from it. 33 00:05:27,510 --> 00:05:33,870 If, on the other hand, China is sovereign over Scarborough Shoal, 34 00:05:33,870 --> 00:05:39,840 the premise of the Philippines submission is that China has failed to respect the 35 00:05:39,840 --> 00:05:48,450 traditional fishing rights of Filipino fishermen within China's territorial sea. 36 00:05:48,450 --> 00:05:57,150 Now, this was a misrepresentation of the Philippines position by the tribunal. 37 00:05:57,150 --> 00:06:07,260 The written and oral pleadings show that the Philippines based its submission solely on the second premise, 38 00:06:07,260 --> 00:06:13,730 namely that China was sovereign over Scarborough Shoal. 39 00:06:13,730 --> 00:06:16,040 For example, the Philippines stated, 40 00:06:16,040 --> 00:06:29,870 I quote submission number 10 assumes that Scarborough Shoal is quote long and only for the purposes of these proceedings under Chinese sovereignty, 41 00:06:29,870 --> 00:06:35,550 and that it is entitled to a territorial sea. 42 00:06:35,550 --> 00:06:41,280 The Philippines also declared that it challenged neither China's alleged sovereignty 43 00:06:41,280 --> 00:06:49,570 over Scarborough Shoal nor its nominal right to a 12 mile territorial sea. 44 00:06:49,570 --> 00:06:58,090 Admission of Chinese sovereignty was necessary because the Philippines argued that 45 00:06:58,090 --> 00:07:04,360 by preventing Filipino fishermen from fishing in the waters of Scarborough Shoal, 46 00:07:04,360 --> 00:07:13,810 China violated Article two paragraphs three of outlaws the United Nations Convention on the Law of the Sea. 47 00:07:13,810 --> 00:07:22,210 According to that provision, a state exercises sovereignty over its territorial sea. 48 00:07:22,210 --> 00:07:29,860 Subject to this convention and two other rules of international law. 49 00:07:29,860 --> 00:07:41,110 So China could have violated Article two, paragraph three only in its own territorial sea. 50 00:07:41,110 --> 00:07:50,980 The Philippines argued that one of the other rules of international law was the customary international law rule that 51 00:07:50,980 --> 00:08:06,050 required a state to respect long and uninterrupted fishing by the nationals of another state in its territorial sea. 52 00:08:06,050 --> 00:08:14,000 The Philippines correctly based its argument on the premise of Chinese sovereignty over Scarborough Shoal, 53 00:08:14,000 --> 00:08:21,260 as there is no rule of customary international law that protects the traditional fishing rights of 54 00:08:21,260 --> 00:08:32,570 private individuals in the territorial sea of their own state against interference by foreign state. 55 00:08:32,570 --> 00:08:46,210 The arbitral tribunal also based its findings on the protection of traditional fishing rights of foreign nationals in a state's territorial sea. 56 00:08:46,210 --> 00:08:56,410 The tribunal stated, and I quote again, the international law relevant to traditional fishing would apply equally to fishing by 57 00:08:56,410 --> 00:09:02,830 Chinese fishermen in the event that the Philippines were sovereign over Scarborough Shoal. 58 00:09:02,830 --> 00:09:11,500 As to fishing by Filipino fishermen in the event that China, we are sovereign. 59 00:09:11,500 --> 00:09:16,900 Why is this statement as such is undoubtedly correct? 60 00:09:16,900 --> 00:09:23,360 It does not cover the situation of the tribunal's first premise. 61 00:09:23,360 --> 00:09:30,750 Filipino fishermen fishing in the territorial sea of the Philippines. 62 00:09:30,750 --> 00:09:37,500 Filipino fishermen fishing in the territorial sea of the Philippines are indirectly protected 63 00:09:37,500 --> 00:09:46,930 against outside interference by the Philippines sovereignty over its territorial sea. 64 00:09:46,930 --> 00:09:54,310 Individual fishermen do not have any separate right of protection under customary 65 00:09:54,310 --> 00:10:01,560 international law vis-a-vis other states in the territorial sea of their own. 66 00:10:01,560 --> 00:10:11,610 So while paying lip service to the first premise, the tribunal did not deal with it any further in its reasoning. 67 00:10:11,610 --> 00:10:23,430 The tribunal seised only on the Article two paragraph three argument and held that the rules of international law on the treatment of the best 68 00:10:23,430 --> 00:10:35,010 the rights of foreign nationals to fall squarely within the abow rules of international law applicable to the territorial sea under Article two, 69 00:10:35,010 --> 00:10:36,960 paragraph three. 70 00:10:36,960 --> 00:10:51,260 In fact, the Tribunal based its decision solely on the second premise, namely that China had territorial sovereignty over Scarborough Shoal. 71 00:10:51,260 --> 00:11:00,710 The second premise was the only one I would admit I would submit within the tribunal's jurisdiction. 72 00:11:00,710 --> 00:11:12,560 As sovereignty over Scarborough Shoal was disputed between the parties and the tribunal was not competent to rule on questions of sovereignty, 73 00:11:12,560 --> 00:11:19,340 it could not base its decision on the assumption of the incidents taking place within the 74 00:11:19,340 --> 00:11:28,650 Philippines territorial sea without prejudicing the question of sovereignty over Scarborough Shoal. 75 00:11:28,650 --> 00:11:39,120 Now, this all may explain why the Philippines submitted for tactical reasons that the tribunal may assume that 76 00:11:39,120 --> 00:11:49,490 Scarborough Shoal is quote long and only for the purposes of these proceedings under Chinese sovereignty. 77 00:11:49,490 --> 00:11:58,490 This submission was in marked contrast to its general claim to sovereignty over Scarborough Shoal, for example, 78 00:11:58,490 --> 00:12:09,950 in a document published in April 2012 that is less than nine months prior to the institution of arbitration proceedings. 79 00:12:09,950 --> 00:12:19,160 The Philippines Department of Foreign Affairs stated that Scarborough Shoal was an integral part of the Philippine 80 00:12:19,160 --> 00:12:29,040 territory and that it exercised full sovereignty and jurisdiction over the rocks of Scarborough Shoal. 81 00:12:29,040 --> 00:12:40,050 It followed that it also had sovereignty over the 12 nautical mile territorial waters. 82 00:12:40,050 --> 00:12:49,710 The tribunal could base its decision on the second premise of Chinese sovereignty only because 83 00:12:49,710 --> 00:12:57,100 the Philippines accepted for tactical reason that China was sovereign over Scarborough Shoal. 84 00:12:57,100 --> 00:13:06,460 As this admission coincided with China's claim, the premise was no longer in dispute between the parties, 85 00:13:06,460 --> 00:13:11,970 all that and thus could be taken for granted by the Tribunal. 86 00:13:11,970 --> 00:13:23,630 The tribunal thus did not have to rule on the question of sovereignty, which anyway would have been outside its jurisdiction. 87 00:13:23,630 --> 00:13:31,340 On the basis of admitted Chinese sovereignty, the tribe. 88 00:13:31,340 --> 00:13:47,310 China, as the coastal state, had unlawfully prevented Filipino fishermen from engaging in traditional fishing in its territorial sea around the show. 89 00:13:47,310 --> 00:13:58,230 Let me now examine whether the Philippines tactical admission was in violation of its duty to act in good faith, 90 00:13:58,230 --> 00:14:06,240 the principle of good faith is a general principle of international law governing the relations between states. 91 00:14:06,240 --> 00:14:14,740 It requires states to perform their obligations and exercise their rights in good faith. 92 00:14:14,740 --> 00:14:20,340 And Klaus has codified the principle in Article 300, 93 00:14:20,340 --> 00:14:30,510 requiring states parties to fulfil in good faith the obligations assumed under the convention and to exercise 94 00:14:30,510 --> 00:14:40,170 their rights recognised in the convention in a manner which would not constitute an abuse of rights. 95 00:14:40,170 --> 00:14:46,080 One of the obligations assumed under the convention is to settle any dispute 96 00:14:46,080 --> 00:14:53,840 between the parties concerning the interpretation or application of force. 97 00:14:53,840 --> 00:15:04,640 The Philippines was thus under no obligation to conduct the South China Sea situation in good faith. 98 00:15:04,640 --> 00:15:18,260 My Swiss colleague, Robert Cole wrote in his entry on general principles of procedural law in the commentary on the ICJ statute that the principle 99 00:15:18,260 --> 00:15:29,720 of good faith develops particular legal effects whenever states have a qualified relationship of confidence with one another, 100 00:15:29,720 --> 00:15:36,000 such as in the context of an arbitral procedure. 101 00:15:36,000 --> 00:15:45,030 Others have said that in legal proceedings, the principle of good faith demands honesty and fairness. 102 00:15:45,030 --> 00:15:52,390 It prohibits the abuse of rights and the taking of unfair advantage. 103 00:15:52,390 --> 00:16:03,660 It also precludes states from adopting a position that does not reflect the genuine position for purely tactical reasons. 104 00:16:03,660 --> 00:16:12,720 Such conduct may deprive the proceedings of their value and undermine the integrity of the legal process. 105 00:16:12,720 --> 00:16:23,100 Let me quote Vice President Alfaro in his separate opinion in the Temple of Prayer, we are case. 106 00:16:23,100 --> 00:16:30,300 A state party to an international litigation is bound by its previous acts or 107 00:16:30,300 --> 00:16:38,600 attitude when they are in contradiction with its claims in the litigation. 108 00:16:38,600 --> 00:16:51,700 Inconsistency between claims or allegations put forward by a state and its previous conduct in connexion, there is is not admissible. 109 00:16:51,700 --> 00:17:01,960 The primary foundation of this principle is the good faith that must prevail in international relations in as much as it as 110 00:17:01,960 --> 00:17:14,280 inconsistency of conduct or opinion on the part of a state to the prejudice of another is incompatible with good faith. 111 00:17:14,280 --> 00:17:24,840 Now, this was echoed more recently in the Chevron case by decided by an exit arbitral tribunal, 112 00:17:24,840 --> 00:17:30,880 which of course included a former holder of the titular chair at Oxford. 113 00:17:30,880 --> 00:17:35,610 Vaughan. The tribunal stated And I quote again, 114 00:17:35,610 --> 00:17:44,670 the duty of good faith precludes clearly inconsistent statements deliberately made for one party's material 115 00:17:44,670 --> 00:17:55,620 advantage or to the other's material prejudice that adversely affect the legitimacy of the arbitral process. 116 00:17:55,620 --> 00:18:06,360 In other words, no party to this government, no party to this arbitration can have it both ways full blown hot and cold. 117 00:18:06,360 --> 00:18:13,290 To affirm a thing at one time and deny that same thing at another time. 118 00:18:13,290 --> 00:18:19,960 According to the mere exigencies of the moment. 119 00:18:19,960 --> 00:18:26,600 A party to a dispute may generally concede a point of law or fact. 120 00:18:26,600 --> 00:18:28,090 However, 121 00:18:28,090 --> 00:18:41,230 if this is done only for the purpose of the proceedings and in contradiction to its established position in order to prejudice the other party, 122 00:18:41,230 --> 00:18:50,400 this will constitute an abuse of rights which signifies a want of good faith. 123 00:18:50,400 --> 00:19:01,560 By basing its submission number 10 on an assumption that was apparently contrary to its long-held position on sovereignty over Scarborough Shoal, 124 00:19:01,560 --> 00:19:07,450 the Philippines undermined the integrity of the arbitral proceedings. 125 00:19:07,450 --> 00:19:18,690 In fact, it presented at the tribunal was an artificial rather than the real dispute in order to score victory. 126 00:19:18,690 --> 00:19:26,330 The true position of a party, however, cannot be ignored in assessing its case. 127 00:19:26,330 --> 00:19:34,820 Judge Montoya said in the Diallo case that a court or tribunal cannot content itself 128 00:19:34,820 --> 00:19:42,230 with a purely tactical mission paid by a party playing cat and mouse with it. 129 00:19:42,230 --> 00:19:49,180 It is duty bound to decide the case on the basis of the party's real position. 130 00:19:49,180 --> 00:19:56,180 Otherwise, it risks losing its judicial integrity. 131 00:19:56,180 --> 00:20:02,960 The International Court of Justice itself pointed out in the North or in Cameroons case that the court 132 00:20:02,960 --> 00:20:13,590 may be under a duty to decline to exercise jurisdiction in order to maintain its judicial character. 133 00:20:13,590 --> 00:20:21,720 The court, not the parties, must be the guardian of the court's judicial integrity. 134 00:20:21,720 --> 00:20:26,470 In light of the Philippines display of bad faith. 135 00:20:26,470 --> 00:20:34,390 Considerations of judicial propriety should have moved the arbitral tribunal to determine proprio 136 00:20:34,390 --> 00:20:45,000 motu to that submission number 10 constituted an abuse of legal process and declare it inadmissible. 137 00:20:45,000 --> 00:20:59,330 This course of action is expressly foreseen in Article 294, paragraph one of uncross with regards to disputes referred to in Article 297. 138 00:20:59,330 --> 00:21:02,180 With regard to other disputes, 139 00:21:02,180 --> 00:21:16,760 the refusal to rule on a dispute can be based on the inherent power of any court or tribunal to dismiss an abusive application. 140 00:21:16,760 --> 00:21:26,850 Let me now examine the long term effects of tactical admissions and what that means for the Philippines. 141 00:21:26,850 --> 00:21:38,690 The question of sovereignty over Scarborough Shoal was not addressed by the tribunal, either in the operative part of the award or in its reasoning. 142 00:21:38,690 --> 00:21:49,550 There is thus no question of the Philippines tactical admission becoming binding on the parties to the dispute by virtue of the tribunal's decision. 143 00:21:49,550 --> 00:21:56,530 There is thus no question of race you Jakarta. Legal effects, if any. 144 00:21:56,530 --> 00:22:06,400 Must therefore result directly from the Philippines declaration itself. 145 00:22:06,400 --> 00:22:16,000 Now, the Philippines tactical mission could qualify as a binding unilateral declaration. 146 00:22:16,000 --> 00:22:28,570 The International Law Commission noted that states may find themselves bound by the unilateral behaviour on the international claim. 147 00:22:28,570 --> 00:22:31,880 One of the best known examples of such behaviour, 148 00:22:31,880 --> 00:22:44,260 giving rise to a binding legal obligation is the declaration of Norway's Foreign Minister Nils Klaus Elan that the Norwegian 149 00:22:44,260 --> 00:22:55,620 government would not make any difficulties in the settlement of the question of Danish sovereignty over the whole of Greenland. 150 00:22:55,620 --> 00:23:02,180 In Norway later attempted to claim certain territories in eastern Greenland for itself. 151 00:23:02,180 --> 00:23:08,060 Denmark brought a case before the Permanent Court of International Justice, 152 00:23:08,060 --> 00:23:19,870 arguing that the declaration constituted a binding admission by Norway that Greenland was subject to Danish sovereignty. 153 00:23:19,870 --> 00:23:27,220 The court ruled that the so-called elan declaration gave rise to an obligation 154 00:23:27,220 --> 00:23:35,080 to refrain from contesting Danish sovereignty over Greenland as a whole. 155 00:23:35,080 --> 00:23:44,620 The International Court of Justice, of course, confirmed that declarations concerning legal or factual situations may indeed have 156 00:23:44,620 --> 00:23:53,150 effect of creating legal obligations for the state on whose behalf they are made. 157 00:23:53,150 --> 00:24:00,980 Written and oral declarations during legal proceedings may give rise to a legally binding obligation 158 00:24:00,980 --> 00:24:11,150 on the part of the admitting state to refrain from contesting the admitted point of fact or law. 159 00:24:11,150 --> 00:24:24,530 However, such declarations are only legally binding if they manifest the state's intention or will to bind itself. 160 00:24:24,530 --> 00:24:36,720 The legal effect of such declarations is to be determined by taking account of their content and the factual circumstances in which they were made. 161 00:24:36,720 --> 00:24:47,940 In case of doubt, as to the legally binding character of a declaration, a restrictive interpretation is called for. 162 00:24:47,940 --> 00:24:54,060 The Philippines made it quite clear that it had no intention of being bound to its admission of 163 00:24:54,060 --> 00:25:03,520 Chinese sovereignty over Scarborough Shoal beyond the South China Sea arbitration by adding. 164 00:25:03,520 --> 00:25:10,550 The qualifier quote none, and only for the purposes of these proceedings. 165 00:25:10,550 --> 00:25:21,030 It was obvious that the declaration was simply litigation tactics with no relation to its actual position. 166 00:25:21,030 --> 00:25:32,070 The admission thus could not give rise to an obligation to refrain from contesting Chinese sovereignty over Scarborough Shoal in the future. 167 00:25:32,070 --> 00:25:46,680 In other words, by its tactical admission, the Philippines did not deport itself from asserting sovereignty over the show itself. 168 00:25:46,680 --> 00:25:58,560 Well, may also think of the Philippines in future, perhaps being stopped from denying Chinese sovereignty over Scarborough Shoal. 169 00:25:58,560 --> 00:26:04,640 Unilateral declarations may give rise to an obstacle by conduct. 170 00:26:04,640 --> 00:26:14,800 The principle prevents a state from contesting a position by reason of past inconsistent conduct. 171 00:26:14,800 --> 00:26:25,100 As you all know, estoppel is a general principle of international law that rests on the principle of good faith and consistency. 172 00:26:25,100 --> 00:26:36,980 It does not depend on the will of the state. It provides a basis for obligations other than the intention to be bound. 173 00:26:36,980 --> 00:26:42,980 It's binding force results from the state's conduct. 174 00:26:42,980 --> 00:26:52,580 A stopper made by the stage to a position previously taken with regard to a factual or legal situation 175 00:26:52,580 --> 00:27:02,550 that is create an obligation not to take a position inconsistent with its previous position. 176 00:27:02,550 --> 00:27:05,130 Estoppel does, at least in principle, 177 00:27:05,130 --> 00:27:17,860 could bar the Philippines from taking contradictory and from taking a contradictory position on the question of sovereignty over Scarborough Shoal. 178 00:27:17,860 --> 00:27:27,400 The ICJ has identified at least two essential elements required by estoppel. 179 00:27:27,400 --> 00:27:32,640 First, there must be a clear and unequivocal. 180 00:27:32,640 --> 00:27:47,370 Couldn't. On state. Forms of estoppel in municipal. 181 00:27:47,370 --> 00:27:56,810 So in international law does not distinguish between representations. 182 00:27:56,810 --> 00:28:00,430 Regarding declarations of law. 183 00:28:00,430 --> 00:28:11,190 The Philippines declaration of us would clearly cover representations on questions of territorial sovereignty over Scarborough Shoal. 184 00:28:11,190 --> 00:28:24,330 Second, the other state must have relied upon the representation to its detriment or to the advantage of the state making the representation. 185 00:28:24,330 --> 00:28:33,900 The element of reliance requires that the state changed its position or did something it would not have done. 186 00:28:33,900 --> 00:28:49,050 But for the representation. The state does not rely on the representation if it has no reason to change its behaviour. 187 00:28:49,050 --> 00:28:56,970 The Philippines declaration that Scarborough Shoal was quite long and only for the purposes of these proceedings under 188 00:28:56,970 --> 00:29:07,230 Chinese sovereignty was by no means a clear and unequivocal admission of Chinese sovereignty over Scarborough Shoal, 189 00:29:07,230 --> 00:29:13,740 which would allow China to place any reliance on that declaration. 190 00:29:13,740 --> 00:29:19,740 There is also no indication that China, in reliance on the Philippines admission, 191 00:29:19,740 --> 00:29:31,120 changed its position on Scarborough Shoal to its detriment or suffered some prejudice in relation in reliance on such admission. 192 00:29:31,120 --> 00:29:41,210 In fact, China's position on Scarborough Shoal was the same after the arbitration as it was before. 193 00:29:41,210 --> 00:29:45,740 The conditions for the stopper. Well, that's not meant. 194 00:29:45,740 --> 00:30:00,970 Consequently, the Philippines is not stopped from claiming against China sovereignty over Scarborough Shoal or disputing Chinese sovereignty. 195 00:30:00,970 --> 00:30:14,460 One may also well may also ask whether the Philippines admission could have created legitimate expectations on the part of China. 196 00:30:14,460 --> 00:30:16,170 It has been said, for example, 197 00:30:16,170 --> 00:30:28,260 that the principle of good faith protects the legitimate expectations of a state that acts in reliance upon the representation of another state. 198 00:30:28,260 --> 00:30:40,950 Now, as you all know, the ICJ ruled recently in the case concerning obligation to negotiate access to the Pacific Ocean in 2018, 199 00:30:40,950 --> 00:30:45,450 that there exists in general international law, 200 00:30:45,450 --> 00:30:56,790 no principle that would give rise to an obligation on the basis of what would be considered a legitimate expectation. 201 00:30:56,790 --> 00:31:07,230 So outside international investment law, there is no such concept of legitimate expectation internationally in any case, 202 00:31:07,230 --> 00:31:17,520 in our case in the South China Sea arbitration, there is no indication that China relied on the Philippines that permission. 203 00:31:17,520 --> 00:31:31,730 This brings me to the most promising, but also the most controversial concept the rule of preclusion of inconsistent position. 204 00:31:31,730 --> 00:31:36,530 The rule operates within the domain of judicial proceedings. 205 00:31:36,530 --> 00:31:47,480 It has a long history in regard to the conduct of dispute resolution, including arbitration under international law. 206 00:31:47,480 --> 00:31:56,300 Under the rule, a state party to legal proceedings is precluded from taking a legal position. 207 00:31:56,300 --> 00:32:04,760 Inconsistent with that, it has previously taken on the same issue. 208 00:32:04,760 --> 00:32:12,980 The rule reflects Latin maxims, such as the near Contra Factom programme. 209 00:32:12,980 --> 00:32:20,240 No one may set himself in contradiction to his own previous conduct and allegations. 210 00:32:20,240 --> 00:32:29,850 Contrave are known already, and just one making contradictory statements is not to be heard. 211 00:32:29,850 --> 00:32:39,600 For example, in the case of the SS Lisman, the claimant had admitted in the course of the judicial proceedings in the British 212 00:32:39,600 --> 00:32:48,120 Province court that the seizure of goods and the detention of the ship were lawful. 213 00:32:48,120 --> 00:33:00,430 In the subsequent arbitration, the arbitrator held that the claimant was precluded from claiming that these acts now were unlawful. 214 00:33:00,430 --> 00:33:06,730 The rule of preclusion of inconsistent positions is often referred to by to say 215 00:33:06,730 --> 00:33:15,400 that a party to legal proceedings cannot blow hot and cold at the same time. 216 00:33:15,400 --> 00:33:24,220 This principle can be traced back in English case law to the 18th century. 217 00:33:24,220 --> 00:33:32,380 In 1862, the Court of Exchequer referred to the broad principle that a man shall not be 218 00:33:32,380 --> 00:33:39,760 allowed to blow hot and cold to a firm at one time and to deny it another, 219 00:33:39,760 --> 00:33:51,130 saying that the principle has its basis in common sense and common justice and whether it is called estoppel or by any other name. 220 00:33:51,130 --> 00:34:00,430 It is one which courts of law have in modern times most usefully adopted. 221 00:34:00,430 --> 00:34:09,430 The rule of preclusion of inconsistent positions has also been referred to as judicial estoppel. 222 00:34:09,430 --> 00:34:15,410 Based on the terminology used in US municipal law. 223 00:34:15,410 --> 00:34:24,540 And though the US doctrine of judicial estoppel apology is equitably barred from asserting. 224 00:34:24,540 --> 00:34:31,560 Brewery to its position taken in earlier judicial proceedings. 225 00:34:31,560 --> 00:34:44,430 While the substance of the rule in international law and in U.S. municipal law is the same, the terminology of judicial estoppel is confusing. 226 00:34:44,430 --> 00:34:59,590 The profusion of inconsistent positions is an independent category of inconsistent conduct, which does not give rise to an estoppel strict sense. 227 00:34:59,590 --> 00:35:07,210 Commenting on the fur seal arbitration between the United States and the United Kingdom, 228 00:35:07,210 --> 00:35:15,520 where the British government had successfully pointed to inconsistent positions of the United States on the question 229 00:35:15,520 --> 00:35:26,590 of alleged British recognition of Russia's claims to exclusive jurisdiction over sealed fisheries in the Bering Sea. 230 00:35:26,590 --> 00:35:37,390 Arnold McNair later, Lord McNair stated there was some advantage in showing inconsistencies in the positions of the other state, 231 00:35:37,390 --> 00:35:42,040 but that this was not estoppel by name, 232 00:35:42,040 --> 00:35:51,900 but that it showed that international jurisprudence had a place for the principle that a state cannot blow hot and cold. 233 00:35:51,900 --> 00:35:56,730 Elegance, Kuntar, they are known and uses. 234 00:35:56,730 --> 00:36:06,210 Unlike a stop, a strict two sensible conclusion of inconsistent positions does not require detrimental 235 00:36:06,210 --> 00:36:13,020 reliance on the position previously taken by the other party to the proceedings. 236 00:36:13,020 --> 00:36:23,400 Rather, a state is precluded from taking inconsistent positions by virtue of the principle of good faith alone. 237 00:36:23,400 --> 00:36:33,240 The rule of preclusion of inconsistent positions is considered a general principle of law in terms of Article 38, 238 00:36:33,240 --> 00:36:41,430 paragraph 1c of the ICJ statute grounded on good faith. 239 00:36:41,430 --> 00:36:48,120 The purpose of the rule of preclusion of inconsistent position is to protect the 240 00:36:48,120 --> 00:36:57,120 integrity of the judicial process by precluding successive contradictory statements. 241 00:36:57,120 --> 00:37:01,830 Parties are barred from deliberately changing positions, 242 00:37:01,830 --> 00:37:14,380 according to the exigencies of the moment or from a certain contradictory positions for tactical gain. 243 00:37:14,380 --> 00:37:25,690 While the rule of preclusion of inconsistent positions has been frequently invoked by states before and applied by international courts and tribunals, 244 00:37:25,690 --> 00:37:38,010 there seem to be no clear criteria for its application. The U.S. Supreme Court identified several factors which typically inform the decision of 245 00:37:38,010 --> 00:37:47,520 the courts on whether to apply the US doctrine of judicial estoppel in a particular case. 246 00:37:47,520 --> 00:37:55,980 First, a party's position must be clearly inconsistent with its earlier position. 247 00:37:55,980 --> 00:38:07,500 Second, the party must have succeeded in persuading a court to accept that party's earlier position so that judicial acceptance of an 248 00:38:07,500 --> 00:38:19,300 inconsistent position in a later proceeding would create the perception that either the first or the second court was misled. 249 00:38:19,300 --> 00:38:29,770 Accident success in a prior proceeding. A party that's later inconsistent position introduces no risk of inconsistent 250 00:38:29,770 --> 00:38:37,590 court determinations and thus poses little threat to traditional integrity. 251 00:38:37,590 --> 00:38:44,430 A third consideration is whether the party seeking to assert an inconsistent position 252 00:38:44,430 --> 00:38:53,160 would derive an unfair advantage or impose an unfair detriment on the opposing party, 253 00:38:53,160 --> 00:39:04,460 if not precluded. I would suggest that these factors may equally serve as guidance for international courts and tribunals when 254 00:39:04,460 --> 00:39:18,910 deciding on whether a state party is precluded from taking a certain position in successive judicial proceedings. 255 00:39:18,910 --> 00:39:28,270 While promising the Philippines tactical mission of Chinese sovereignty over Scarborough Shoal does not bar the country from 256 00:39:28,270 --> 00:39:40,050 subsequently taking the position in judicial proceedings either against China or any other state that it is sovereign over the sole. 257 00:39:40,050 --> 00:39:47,760 First, this position would not be clearly inconsistent with its earlier position in the South China Sea arbitration 258 00:39:47,760 --> 00:39:58,060 that Scarborough Shoal was quote long and only for the purposes of these proceedings under Chinese sovereignty. 259 00:39:58,060 --> 00:40:05,590 While the Philippines may actually have gained an unfair advantage by its tactical admission in that arbitration, 260 00:40:05,590 --> 00:40:11,230 the Tribunal did not expressly base its decision on that admission so that 261 00:40:11,230 --> 00:40:17,170 there would be no question of judicial acceptance of an inconsistent position. 262 00:40:17,170 --> 00:40:27,740 In a later proceedings. Let me now turn to the last possible effect of tactical admission. 263 00:40:27,740 --> 00:40:34,040 Tactical admissions may play a role in the consideration of evidence. 264 00:40:34,040 --> 00:40:43,970 While a previous admission will not automatically lead to a reversal of the burden of proof in later proceedings, 265 00:40:43,970 --> 00:40:52,600 inconsistent positions may weaken the state's case on grounds of inconsistency. 266 00:40:52,600 --> 00:40:53,530 For example, 267 00:40:53,530 --> 00:41:06,890 it has been held that there is a general rule of evidence that contradictory statements of an interesting party should be construed against that part. 268 00:41:06,890 --> 00:41:15,740 It has also been suggested that if there is controversy about the facts which constitute the subject matter of the admission, 269 00:41:15,740 --> 00:41:27,070 then the admission is of significance in showing the likelihood of the truth of the facts covered by the admission. 270 00:41:27,070 --> 00:41:31,630 So while the Philippines tactical admissions of Chinese sovereignty over Scarborough 271 00:41:31,630 --> 00:41:39,700 Shoal does not prevent it from claiming sovereignty over the shoal itself, 272 00:41:39,700 --> 00:41:49,560 it may make such claims more difficult to prove in future proceedings. 273 00:41:49,560 --> 00:41:58,080 So where does that leave us with regard to the admission of Chinese sovereignty over Scarborough Shoal? 274 00:41:58,080 --> 00:41:59,430 So, so in the admission, 275 00:41:59,430 --> 00:42:10,410 will not legally bar the Philippines from claiming sovereignty over this whole struggle in future negotiations or legal proceedings with China. 276 00:42:10,410 --> 00:42:21,140 However. The tactical admission produced and rather unintended negative consequence for the Philippines. 277 00:42:21,140 --> 00:42:26,060 The admission prompted the tribunal to declare that I quote, 278 00:42:26,060 --> 00:42:35,910 China has unlawfully prevented fishermen from the Philippines from engaging in traditional fishing at Scarborough Shoal. 279 00:42:35,910 --> 00:42:41,220 While this was widely hailed as another victory for the Philippines. 280 00:42:41,220 --> 00:42:51,540 The declaration, actually, well, this declaration actually puts the Philippines on the back foot, both legally and politically. 281 00:42:51,540 --> 00:43:05,630 Prior to the South China Sea arbitration, the dispute between the Philippines and China was all about territorial sovereignty over Scarborough Shoal. 282 00:43:05,630 --> 00:43:14,050 The Philippines never asserted traditional fishing rights of Filipino fishermen within 12 nautical miles of Scarborough Shoal. 283 00:43:14,050 --> 00:43:23,900 This is explained by the fact that an assertion of such rights was not necessary because all Filipino fishermen fishing activities 284 00:43:23,900 --> 00:43:36,490 would have been protected against Chinese interference by the paeans sovereignty over the channel and its territorial sea. 285 00:43:36,490 --> 00:43:47,260 With the tribunal's ruling on submission number 10, the public's perception of the dispute over Scarborough Shoal shifted from Philippines 286 00:43:47,260 --> 00:43:55,030 territorial sovereignty to traditional fishing rights for Filipino fishermen. 287 00:43:55,030 --> 00:44:01,650 The media noted after the tribunal published its award. 288 00:44:01,650 --> 00:44:10,800 That's the tribunal had reaffirmed manilla's sovereign rights over several reefs in the Spratly Islands, 289 00:44:10,800 --> 00:44:21,750 while at the same time noting that the tribunal had declared Scarborough Shoal a traditional fishing ground for Filipinos and Chinese, 290 00:44:21,750 --> 00:44:28,260 as well as fishermen from many other countries. After the tribunal ruling, 291 00:44:28,260 --> 00:44:39,470 the Philippines government started to implement restrictions on fishing in the 12 nautical mile territorial sea around Scarborough Shoal. 292 00:44:39,470 --> 00:44:51,290 On the 3rd of August 2016, the Philippines presidential spokesperson declared that Scarborough Shoal was only for artisanal fishing, 293 00:44:51,290 --> 00:44:58,220 not for commercial fishing in a 12 nautical miles around Scarborough Shoal. 294 00:44:58,220 --> 00:45:10,460 China seem to be quite happy with the ruling on the submission number 10 in October 2016, it was reported that for the first time since 2012, 295 00:45:10,460 --> 00:45:19,680 Chinese Coast Guard ships allowed Filipinos to fish again in the waters inside Scarborough Shoal. 296 00:45:19,680 --> 00:45:29,880 As the dispute could now be portrayed as a question of the exercise of traditional fishing rights in China's territorial sea, 297 00:45:29,880 --> 00:45:40,030 there was no need to exclude Filipino fishermen any longer in order to assert Chinese sovereignty over the sole. 298 00:45:40,030 --> 00:45:47,020 While the tactical admission provided a basis for the tribunal's declaration that China's unprovoked China 299 00:45:47,020 --> 00:45:55,420 unlawfully prevented fishermen from the Philippines from engaging in traditional fishing at Scarborough Shoal, 300 00:45:55,420 --> 00:46:07,030 it came at a high price. Not only will the Philippines fishing rights downgraded from exclusive sovereign rights. 301 00:46:07,030 --> 00:46:13,800 Of a state to non-exclusive traditional rights of private individual. 302 00:46:13,800 --> 00:46:24,320 But the tribunal's ruling also suggested that these traditional rights existed in the waters of another state. 303 00:46:24,320 --> 00:46:32,780 Thereby at least implicitly confirming China's claim of sovereignty over Scarborough Shoal. 304 00:46:32,780 --> 00:46:36,072 Thank you very much.