I want to talk today about tactical admissions in international litigation.
And I think it's probably best to start with a definition of what I mean by tactical admission.
By admitting a certain fact or point of law that is in.
Parties, a party can put a court or tribunal into a position to rule on the basis of that
fact or point of law without having to take a decision on the disputed point.
And of course, also without taking any evidence from that. But such admissions are not unusual in international litigation.
For example, a party may admit the relevant coast for the purpose of maritime delimitation.
A party may admits that a certain rule forms part of customary international law,
or a party may admit that another party is or another state is, a party to a certain treaty.
If a fact or point of law is accepted only for the purposes of the legal proceedings,
and only with the aim to allow the Tribunal to reach a decision favourable to the party making the admission,
such an admission may be termed a tactical admission.
Tactical missions must be distinguished from ordinary,
even if arguments where the party still leaves it to the court or tribunal to decide on whether the premise is fulfilled or not.
I want to illustrate tactical missions by going back to the now infamous South China Sea arbitration.
A lot has been written about the case, and it is fairly recent.
So considering that this is an expert audience, I assume I don't need to give you any details of the case as such.
So I want to go straight to the point. In its submission, Number 10,
the Philippines requests that the arbitral tribunal to declare that I quote China has unlawfully prevented Philippine
fishermen from pursuing a livelihood by interfering with traditional fishing activities at Scarborough Shoal.
Scarborough Shoal is a high tide feature that generates its own entitlement to a territorial sea.
During the proceedings, the Philippines clarified that the activities allege all occurred within the 12 nautical mile territorial sea.
Finding that Scarborough Shoal had been a traditional fishing ground for fishermen of many nationalities.
The tribunal declared that China had through the operation of its official vessels in the area from May 2012 onwards.
Unlawfully prevented fishermen from the Philippines from engaging in traditional fishing at Scarborough Shoal.
As the tribunal, as you know, was not competent to pronounce on the question of sovereignty over the islands in the South China Sea,
it's tried to sidestep any decision or comment on sovereignty over Scarborough
Shoal and the question in whose territorial sea the relevant incidents happened.
The tribunal expressly stated that it did not have to rule on the question of sovereignty because it
considered that the Philippines submission number 10 was based on one of two alternative premises.
It then continued, and I quote. If on the one hand, the Philippines is sovereign over Scarborough Shoal,
then the surrounding waters would constitute a territorial sea of the Philippines with all that follows from it.
If, on the other hand, China is sovereign over Scarborough Shoal,
the premise of the Philippines submission is that China has failed to respect the
traditional fishing rights of Filipino fishermen within China's territorial sea.
Now, this was a misrepresentation of the Philippines position by the tribunal.
The written and oral pleadings show that the Philippines based its submission solely on the second premise,
namely that China was sovereign over Scarborough Shoal.
For example, the Philippines stated,
I quote submission number 10 assumes that Scarborough Shoal is quote long and only for the purposes of these proceedings under Chinese sovereignty,
and that it is entitled to a territorial sea.
The Philippines also declared that it challenged neither China's alleged sovereignty
over Scarborough Shoal nor its nominal right to a 12 mile territorial sea.
Admission of Chinese sovereignty was necessary because the Philippines argued that
by preventing Filipino fishermen from fishing in the waters of Scarborough Shoal,
China violated Article two paragraphs three of outlaws the United Nations Convention on the Law of the Sea.
According to that provision, a state exercises sovereignty over its territorial sea.
Subject to this convention and two other rules of international law.
So China could have violated Article two, paragraph three only in its own territorial sea.
The Philippines argued that one of the other rules of international law was the customary international law rule that
required a state to respect long and uninterrupted fishing by the nationals of another state in its territorial sea.
The Philippines correctly based its argument on the premise of Chinese sovereignty over Scarborough Shoal,
as there is no rule of customary international law that protects the traditional fishing rights of
private individuals in the territorial sea of their own state against interference by foreign state.
The arbitral tribunal also based its findings on the protection of traditional fishing rights of foreign nationals in a state's territorial sea.
The tribunal stated, and I quote again, the international law relevant to traditional fishing would apply equally to fishing by
Chinese fishermen in the event that the Philippines were sovereign over Scarborough Shoal.
As to fishing by Filipino fishermen in the event that China, we are sovereign.
Why is this statement as such is undoubtedly correct?
It does not cover the situation of the tribunal's first premise.
Filipino fishermen fishing in the territorial sea of the Philippines.
Filipino fishermen fishing in the territorial sea of the Philippines are indirectly protected
against outside interference by the Philippines sovereignty over its territorial sea.
Individual fishermen do not have any separate right of protection under customary
international law vis-a-vis other states in the territorial sea of their own.
So while paying lip service to the first premise, the tribunal did not deal with it any further in its reasoning.
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
the rights of foreign nationals to fall squarely within the abow rules of international law applicable to the territorial sea under Article two,
paragraph three.
In fact, the Tribunal based its decision solely on the second premise, namely that China had territorial sovereignty over Scarborough Shoal.
The second premise was the only one I would admit I would submit within the tribunal's jurisdiction.
As sovereignty over Scarborough Shoal was disputed between the parties and the tribunal was not competent to rule on questions of sovereignty,
it could not base its decision on the assumption of the incidents taking place within the
Philippines territorial sea without prejudicing the question of sovereignty over Scarborough Shoal.
Now, this all may explain why the Philippines submitted for tactical reasons that the tribunal may assume that
Scarborough Shoal is quote long and only for the purposes of these proceedings under Chinese sovereignty.
This submission was in marked contrast to its general claim to sovereignty over Scarborough Shoal, for example,
in a document published in April 2012 that is less than nine months prior to the institution of arbitration proceedings.
The Philippines Department of Foreign Affairs stated that Scarborough Shoal was an integral part of the Philippine
territory and that it exercised full sovereignty and jurisdiction over the rocks of Scarborough Shoal.
It followed that it also had sovereignty over the 12 nautical mile territorial waters.
The tribunal could base its decision on the second premise of Chinese sovereignty only because
the Philippines accepted for tactical reason that China was sovereign over Scarborough Shoal.
As this admission coincided with China's claim, the premise was no longer in dispute between the parties,
all that and thus could be taken for granted by the Tribunal.
The tribunal thus did not have to rule on the question of sovereignty, which anyway would have been outside its jurisdiction.
On the basis of admitted Chinese sovereignty, the tribe.
China, as the coastal state, had unlawfully prevented Filipino fishermen from engaging in traditional fishing in its territorial sea around the show.
Let me now examine whether the Philippines tactical admission was in violation of its duty to act in good faith,
the principle of good faith is a general principle of international law governing the relations between states.
It requires states to perform their obligations and exercise their rights in good faith.
And Klaus has codified the principle in Article 300,
requiring states parties to fulfil in good faith the obligations assumed under the convention and to exercise
their rights recognised in the convention in a manner which would not constitute an abuse of rights.
One of the obligations assumed under the convention is to settle any dispute
between the parties concerning the interpretation or application of force.
The Philippines was thus under no obligation to conduct the South China Sea situation in good faith.
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
of good faith develops particular legal effects whenever states have a qualified relationship of confidence with one another,
such as in the context of an arbitral procedure.
Others have said that in legal proceedings, the principle of good faith demands honesty and fairness.
It prohibits the abuse of rights and the taking of unfair advantage.
It also precludes states from adopting a position that does not reflect the genuine position for purely tactical reasons.
Such conduct may deprive the proceedings of their value and undermine the integrity of the legal process.
Let me quote Vice President Alfaro in his separate opinion in the Temple of Prayer, we are case.
A state party to an international litigation is bound by its previous acts or
attitude when they are in contradiction with its claims in the litigation.
Inconsistency between claims or allegations put forward by a state and its previous conduct in connexion, there is is not admissible.
The primary foundation of this principle is the good faith that must prevail in international relations in as much as it as
inconsistency of conduct or opinion on the part of a state to the prejudice of another is incompatible with good faith.
Now, this was echoed more recently in the Chevron case by decided by an exit arbitral tribunal,
which of course included a former holder of the titular chair at Oxford.
Vaughan. The tribunal stated And I quote again,
the duty of good faith precludes clearly inconsistent statements deliberately made for one party's material
advantage or to the other's material prejudice that adversely affect the legitimacy of the arbitral process.
In other words, no party to this government, no party to this arbitration can have it both ways full blown hot and cold.
To affirm a thing at one time and deny that same thing at another time.
According to the mere exigencies of the moment.
A party to a dispute may generally concede a point of law or fact.
However,
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,
this will constitute an abuse of rights which signifies a want of good faith.
By basing its submission number 10 on an assumption that was apparently contrary to its long-held position on sovereignty over Scarborough Shoal,
the Philippines undermined the integrity of the arbitral proceedings.
In fact, it presented at the tribunal was an artificial rather than the real dispute in order to score victory.
The true position of a party, however, cannot be ignored in assessing its case.
Judge Montoya said in the Diallo case that a court or tribunal cannot content itself
with a purely tactical mission paid by a party playing cat and mouse with it.
It is duty bound to decide the case on the basis of the party's real position.
Otherwise, it risks losing its judicial integrity.
The International Court of Justice itself pointed out in the North or in Cameroons case that the court
may be under a duty to decline to exercise jurisdiction in order to maintain its judicial character.
The court, not the parties, must be the guardian of the court's judicial integrity.
In light of the Philippines display of bad faith.
Considerations of judicial propriety should have moved the arbitral tribunal to determine proprio
motu to that submission number 10 constituted an abuse of legal process and declare it inadmissible.
This course of action is expressly foreseen in Article 294, paragraph one of uncross with regards to disputes referred to in Article 297.
With regard to other disputes,
the refusal to rule on a dispute can be based on the inherent power of any court or tribunal to dismiss an abusive application.
Let me now examine the long term effects of tactical admissions and what that means for the Philippines.
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.
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.
There is thus no question of race you Jakarta. Legal effects, if any.
Must therefore result directly from the Philippines declaration itself.
Now, the Philippines tactical mission could qualify as a binding unilateral declaration.
The International Law Commission noted that states may find themselves bound by the unilateral behaviour on the international claim.
One of the best known examples of such behaviour,
giving rise to a binding legal obligation is the declaration of Norway's Foreign Minister Nils Klaus Elan that the Norwegian
government would not make any difficulties in the settlement of the question of Danish sovereignty over the whole of Greenland.
In Norway later attempted to claim certain territories in eastern Greenland for itself.
Denmark brought a case before the Permanent Court of International Justice,
arguing that the declaration constituted a binding admission by Norway that Greenland was subject to Danish sovereignty.
The court ruled that the so-called elan declaration gave rise to an obligation
to refrain from contesting Danish sovereignty over Greenland as a whole.
The International Court of Justice, of course, confirmed that declarations concerning legal or factual situations may indeed have
effect of creating legal obligations for the state on whose behalf they are made.
Written and oral declarations during legal proceedings may give rise to a legally binding obligation
on the part of the admitting state to refrain from contesting the admitted point of fact or law.
However, such declarations are only legally binding if they manifest the state's intention or will to bind itself.
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.
In case of doubt, as to the legally binding character of a declaration, a restrictive interpretation is called for.
The Philippines made it quite clear that it had no intention of being bound to its admission of
Chinese sovereignty over Scarborough Shoal beyond the South China Sea arbitration by adding.
The qualifier quote none, and only for the purposes of these proceedings.
It was obvious that the declaration was simply litigation tactics with no relation to its actual position.
The admission thus could not give rise to an obligation to refrain from contesting Chinese sovereignty over Scarborough Shoal in the future.
In other words, by its tactical admission, the Philippines did not deport itself from asserting sovereignty over the show itself.
Well, may also think of the Philippines in future, perhaps being stopped from denying Chinese sovereignty over Scarborough Shoal.
Unilateral declarations may give rise to an obstacle by conduct.
The principle prevents a state from contesting a position by reason of past inconsistent conduct.
As you all know, estoppel is a general principle of international law that rests on the principle of good faith and consistency.
It does not depend on the will of the state. It provides a basis for obligations other than the intention to be bound.
It's binding force results from the state's conduct.
A stopper made by the stage to a position previously taken with regard to a factual or legal situation
that is create an obligation not to take a position inconsistent with its previous position.
Estoppel does, at least in principle,
could bar the Philippines from taking contradictory and from taking a contradictory position on the question of sovereignty over Scarborough Shoal.
The ICJ has identified at least two essential elements required by estoppel.
First, there must be a clear and unequivocal.
Couldn't. On state. Forms of estoppel in municipal.
So in international law does not distinguish between representations.
Regarding declarations of law.
The Philippines declaration of us would clearly cover representations on questions of territorial sovereignty over Scarborough Shoal.
Second, the other state must have relied upon the representation to its detriment or to the advantage of the state making the representation.
The element of reliance requires that the state changed its position or did something it would not have done.
But for the representation. The state does not rely on the representation if it has no reason to change its behaviour.
The Philippines declaration that Scarborough Shoal was quite long and only for the purposes of these proceedings under
Chinese sovereignty was by no means a clear and unequivocal admission of Chinese sovereignty over Scarborough Shoal,
which would allow China to place any reliance on that declaration.
There is also no indication that China, in reliance on the Philippines admission,
changed its position on Scarborough Shoal to its detriment or suffered some prejudice in relation in reliance on such admission.
In fact, China's position on Scarborough Shoal was the same after the arbitration as it was before.
The conditions for the stopper. Well, that's not meant.
Consequently, the Philippines is not stopped from claiming against China sovereignty over Scarborough Shoal or disputing Chinese sovereignty.
One may also well may also ask whether the Philippines admission could have created legitimate expectations on the part of China.
It has been said, for example,
that the principle of good faith protects the legitimate expectations of a state that acts in reliance upon the representation of another state.
Now, as you all know, the ICJ ruled recently in the case concerning obligation to negotiate access to the Pacific Ocean in 2018,
that there exists in general international law,
no principle that would give rise to an obligation on the basis of what would be considered a legitimate expectation.
So outside international investment law, there is no such concept of legitimate expectation internationally in any case,
in our case in the South China Sea arbitration, there is no indication that China relied on the Philippines that permission.
This brings me to the most promising, but also the most controversial concept the rule of preclusion of inconsistent position.
The rule operates within the domain of judicial proceedings.
It has a long history in regard to the conduct of dispute resolution, including arbitration under international law.
Under the rule, a state party to legal proceedings is precluded from taking a legal position.
Inconsistent with that, it has previously taken on the same issue.
The rule reflects Latin maxims, such as the near Contra Factom programme.
No one may set himself in contradiction to his own previous conduct and allegations.
Contrave are known already, and just one making contradictory statements is not to be heard.
For example, in the case of the SS Lisman, the claimant had admitted in the course of the judicial proceedings in the British
Province court that the seizure of goods and the detention of the ship were lawful.
In the subsequent arbitration, the arbitrator held that the claimant was precluded from claiming that these acts now were unlawful.
The rule of preclusion of inconsistent positions is often referred to by to say
that a party to legal proceedings cannot blow hot and cold at the same time.
This principle can be traced back in English case law to the 18th century.
In 1862, the Court of Exchequer referred to the broad principle that a man shall not be
allowed to blow hot and cold to a firm at one time and to deny it another,
saying that the principle has its basis in common sense and common justice and whether it is called estoppel or by any other name.
It is one which courts of law have in modern times most usefully adopted.
The rule of preclusion of inconsistent positions has also been referred to as judicial estoppel.
Based on the terminology used in US municipal law.
And though the US doctrine of judicial estoppel apology is equitably barred from asserting.
Brewery to its position taken in earlier judicial proceedings.
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.
The profusion of inconsistent positions is an independent category of inconsistent conduct, which does not give rise to an estoppel strict sense.
Commenting on the fur seal arbitration between the United States and the United Kingdom,
where the British government had successfully pointed to inconsistent positions of the United States on the question
of alleged British recognition of Russia's claims to exclusive jurisdiction over sealed fisheries in the Bering Sea.
Arnold McNair later, Lord McNair stated there was some advantage in showing inconsistencies in the positions of the other state,
but that this was not estoppel by name,
but that it showed that international jurisprudence had a place for the principle that a state cannot blow hot and cold.
Elegance, Kuntar, they are known and uses.
Unlike a stop, a strict two sensible conclusion of inconsistent positions does not require detrimental
reliance on the position previously taken by the other party to the proceedings.
Rather, a state is precluded from taking inconsistent positions by virtue of the principle of good faith alone.
The rule of preclusion of inconsistent positions is considered a general principle of law in terms of Article 38,
paragraph 1c of the ICJ statute grounded on good faith.
The purpose of the rule of preclusion of inconsistent position is to protect the
integrity of the judicial process by precluding successive contradictory statements.
Parties are barred from deliberately changing positions,
according to the exigencies of the moment or from a certain contradictory positions for tactical gain.
While the rule of preclusion of inconsistent positions has been frequently invoked by states before and applied by international courts and tribunals,
there seem to be no clear criteria for its application. The U.S. Supreme Court identified several factors which typically inform the decision of
the courts on whether to apply the US doctrine of judicial estoppel in a particular case.
First, a party's position must be clearly inconsistent with its earlier position.
Second, the party must have succeeded in persuading a court to accept that party's earlier position so that judicial acceptance of an
inconsistent position in a later proceeding would create the perception that either the first or the second court was misled.
Accident success in a prior proceeding. A party that's later inconsistent position introduces no risk of inconsistent
court determinations and thus poses little threat to traditional integrity.
A third consideration is whether the party seeking to assert an inconsistent position
would derive an unfair advantage or impose an unfair detriment on the opposing party,
if not precluded. I would suggest that these factors may equally serve as guidance for international courts and tribunals when
deciding on whether a state party is precluded from taking a certain position in successive judicial proceedings.
While promising the Philippines tactical mission of Chinese sovereignty over Scarborough Shoal does not bar the country from
subsequently taking the position in judicial proceedings either against China or any other state that it is sovereign over the sole.
First, this position would not be clearly inconsistent with its earlier position in the South China Sea arbitration
that Scarborough Shoal was quote long and only for the purposes of these proceedings under Chinese sovereignty.
While the Philippines may actually have gained an unfair advantage by its tactical admission in that arbitration,
the Tribunal did not expressly base its decision on that admission so that
there would be no question of judicial acceptance of an inconsistent position.
In a later proceedings. Let me now turn to the last possible effect of tactical admission.
Tactical admissions may play a role in the consideration of evidence.
While a previous admission will not automatically lead to a reversal of the burden of proof in later proceedings,
inconsistent positions may weaken the state's case on grounds of inconsistency.
For example,
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.
It has also been suggested that if there is controversy about the facts which constitute the subject matter of the admission,
then the admission is of significance in showing the likelihood of the truth of the facts covered by the admission.
So while the Philippines tactical admissions of Chinese sovereignty over Scarborough
Shoal does not prevent it from claiming sovereignty over the shoal itself,
it may make such claims more difficult to prove in future proceedings.
So where does that leave us with regard to the admission of Chinese sovereignty over Scarborough Shoal?
So, so in the admission,
will not legally bar the Philippines from claiming sovereignty over this whole struggle in future negotiations or legal proceedings with China.
However. The tactical admission produced and rather unintended negative consequence for the Philippines.
The admission prompted the tribunal to declare that I quote,
China has unlawfully prevented fishermen from the Philippines from engaging in traditional fishing at Scarborough Shoal.
While this was widely hailed as another victory for the Philippines.
The declaration, actually, well, this declaration actually puts the Philippines on the back foot, both legally and politically.
Prior to the South China Sea arbitration, the dispute between the Philippines and China was all about territorial sovereignty over Scarborough Shoal.
The Philippines never asserted traditional fishing rights of Filipino fishermen within 12 nautical miles of Scarborough Shoal.
This is explained by the fact that an assertion of such rights was not necessary because all Filipino fishermen fishing activities
would have been protected against Chinese interference by the paeans sovereignty over the channel and its territorial sea.
With the tribunal's ruling on submission number 10, the public's perception of the dispute over Scarborough Shoal shifted from Philippines
territorial sovereignty to traditional fishing rights for Filipino fishermen.
The media noted after the tribunal published its award.
That's the tribunal had reaffirmed manilla's sovereign rights over several reefs in the Spratly Islands,
while at the same time noting that the tribunal had declared Scarborough Shoal a traditional fishing ground for Filipinos and Chinese,
as well as fishermen from many other countries. After the tribunal ruling,
the Philippines government started to implement restrictions on fishing in the 12 nautical mile territorial sea around Scarborough Shoal.
On the 3rd of August 2016, the Philippines presidential spokesperson declared that Scarborough Shoal was only for artisanal fishing,
not for commercial fishing in a 12 nautical miles around Scarborough Shoal.
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,
Chinese Coast Guard ships allowed Filipinos to fish again in the waters inside Scarborough Shoal.
As the dispute could now be portrayed as a question of the exercise of traditional fishing rights in China's territorial sea,
there was no need to exclude Filipino fishermen any longer in order to assert Chinese sovereignty over the sole.
While the tactical admission provided a basis for the tribunal's declaration that China's unprovoked China
unlawfully prevented fishermen from the Philippines from engaging in traditional fishing at Scarborough Shoal,
it came at a high price. Not only will the Philippines fishing rights downgraded from exclusive sovereign rights.
Of a state to non-exclusive traditional rights of private individual.
But the tribunal's ruling also suggested that these traditional rights existed in the waters of another state.
Thereby at least implicitly confirming China's claim of sovereignty over Scarborough Shoal.
Thank you very much.