The Tribunal's Award in the 'South China Sea Arbitration' Initiated by the Philippines Is Null and Void

Editor's Note: On 10 June 2016, the Chinese Society of International Law (CSIL) released a paper entitled The Tribunal's Award in the "South China Sea Arbitration" Initiated by the Philippines Is Null and Void. The executive summary of the paper is as follows:

On 22 January 2013, the Philippines unilaterally initiated arbitration with respect to certain issues in the South China Sea ("Arbitration"). China has maintained its solemn position that it would neither accept nor participate in the Arbitration, having stated that the tribunal constituted at the unilateral request of the Philippines ("Arbitral Tribunal" or "Tribunal") manifestly has no jurisdiction.

On 29 October 2015, the Tribunal issued its Award on Jurisdiction and Admissibility ("Award on Jurisdiction" or "Award"), in which it found that it had jurisdiction over some of the Submissions made by the Philippines, and reserved consideration of its jurisdiction with respect to the other Submissions to the merits phase. This finding is full of errors in both the determination of fact and the application of law.

Chinese sailors take part in a rescue drill in the South China Sea. Yang Guanyu / Xinhua

I. The Tribunal errs in finding that the claims made by the Philippines constitute disputes between China and the Philippines concerning the interpretation or application of the UNCLOS

According to the United Nations Convention on the Law of the Sea ("UNCLOS" or "Convention"), the jurisdiction of the Tribunal is limited to "disputes concerning the interpretation or application of this Convention". To establish its jurisdiction in the present Arbitration, the Tribunal must be satisfied that disputes exist between China and the Philippines with respect to the claims made by the Philippines, and that the disputes, if they existed, concern the interpretation or application of the UNCLOS.

In international practice, to determine the existence of a dispute, it must be first demonstrated that specific subject-matters on which the parties disagree have come into existence before the judicial or arbitral proceedings are initiated, and further demonstrated that there is "clash of propositions" or "point of contention" on the same subject-matter or claim.

In its Submission No. 3, the Philippines argues that Scarborough Shoal (Huangyan Dao) generates no entitlement to an exclusive economic zone or continental shelf. In its Submission No. 4, it argues that Mischief Reef (Meiji Jiao), Second Thomas Shoal (Ren'ai Jiao) and Subi Reef (Zhubi Jiao) are low-tide elevations that do not generate entitlement to a territorial sea, exclusive economic zone or continental shelf. In its Submission No. 6, the Philippines argues that Gaven Reef (Nanxun Jiao) and Mckennan Reef (Ximen Jiao) (including Hughes Reef (Dongmen Jiao)) are low-tide elevations that do not generate entitlement to a territorial sea, exclusive economic zone or continental shelf. In its Submission No. 7, it argues that Johnson Reef (Chigua Jiao), Cuarteron Reef (Huayang Jiao) and Fiery Cross Reef (Yongshu Jiao) generate no entitlement to an exclusive economic zone or continental shelf.

In order to prove that these claims constitute disputes between China and the Philippines, the Tribunal must show, with factual proof, that prior to the initiation of arbitration the Philippines had made such claims to China and the claims had been positively opposed by China. The Tribunal should have done this, but it did not.

In fact, there exists no real "clash of propositions" between China and the Philippines with respect to the Philippines' Submissions. China has always maintained and enjoyed territorial sovereignty over and maritime entitlements of the Zhongsha Islands (including Huangyan Dao (Scarborough Shoal)) and the Nansha Islands (including the above-mentioned eight features such as Meiji Jiao (Mischief Reef)), each in their entirety. The Philippines formulates its claims regarding the status and maritime entitlements of certain individual features as separate ones. The two States have never exchanged views with respect to the subject-matters concerned in the Philippines' Submissions. These facts reflect that the propositions of China and the Philippines concern different issues and do not pertain to the same subject-matters. With no positively opposed disagreements, the relevant claims do not constitute disputes between China and the Philippines. However, the Tribunal distorts China's arguments and erroneously finds that there exist disputes between China and the Philippines with respect to the latter's relevant claims.

Even if a claim constituted a dispute, the Arbitral Tribunal would still have no jurisdiction over it if it does not concern the interpretation or application of the UNCLOS. When dealing with the Philippines' Submissions No. 1 and 2, the Tribunal finds that the relevant dispute between China and the Philippines is "a dispute about historic rights in the framework of the Convention". However, "historic rights" had come into existence long before the conclusion of the UNCLOS. They originated from and are governed by general international law including customary international law, and rules of customary international law regarding "historic rights" operate in parallel with the UNCLOS. Accordingly, disputes concerning "historic rights" do not concern the interpretation or application of the Convention. The Tribunal makes a sweeping conclusion that the relevant claims constitute a dispute concerning the interpretation or application of the UNCLOS, without identifying specific provisions to which the "dispute" relates, and whether a real link exists between the "dispute" and the specific provisions of the Convention. The Tribunal's conclusion is thus groundless in law.

II. By exercising jurisdiction over subject-matters about territorial sovereignty in essence, the Arbitral Tribunal acts ultra vires, beyond the authorization of the UNCLOS

The Philippines' claims concern, in essence, territorial sovereignty over several maritime features in the South China Sea. The resolution of the claims would require a determination of territorial sovereignty over relevant maritime features in the first place. And the real object of the Philippines' claims and practical effect of dealing with them would inevitably have a significant impact on the territorial sovereignty claims of both China and the Philippines. The Tribunal finds that none of the Philippines' Submissions reflect disputes concerning sovereignty over maritime features. This finding, however, not only contravenes the principle that "the land dominates the sea" in international law, but are also contrary to the provisions of the Convention on maritime entitlements.

The objective link between the Philippines' claims and the issue of territorial sovereignty over certain maritime features in the South China Sea is such that a decision on the latter is the precondition to deciding on the former and the Tribunal errs in treating the Philippines' claims in isolation from sovereignty.

In its Submissions No. 1 and 2, the Philippines argues that China's maritime claims in the South China Sea have exceeded the extent allowed under the UNCLOS. In practice, however, without first having determined China's territorial sovereignty over the maritime features in the South China Sea, the Arbitral Tribunal will not be in a position to determine what maritime rights China enjoys and the extent to which China may claim maritime rights therein, not to mention whether China's claims exceed the extent allowed under the Convention.

The Philippines' Submissions No. 3 through 7 concern the status and maritime entitlements of certain maritime features. According to international law, including the UNCLOS, the maritime entitlements generated by a maritime feature belong to the costal State that has sovereignty over the feature, rather than the feature itself. The UNCLOS, in its regulations on territorial sea, contiguous zone, exclusive economic zone and continental shelf, explicitly ties the maritime entitlements to the coastal State in respect of the maritime zone in question. If the status and maritime entitlements of a feature are considered in isolation from its holder's sovereignty, there will be no "real" disputant party, as a subject of international law, and such claims can not constitute a "real" dispute. Moreover, whether or not low-tide elevations can be appropriated is a question of territorial sovereignty in itself. Thus, with the issue of sovereignty over the features undetermined, the Tribunal puts the cart before the horse by determining that it has jurisdiction over the above Submissions.

The Philippines' Submissions No. 8 through 14 concern the lawfulness of China's activities in the South China Sea. In practice, however, to determine the lawfulness of China's activities in the South China Sea, the Tribunal has to first decide on the holder of maritime entitlements with respect to the maritime zones where the activities took place, which derives from the sovereignty over the land territory. It would be impossible to deal with the above Submissions without first ascertaining the territorial sovereignty over the features in question.

The Arbitral Tribunal selectively neglects the real object and practical effect of the Philippines' initiation of the Arbitration, namely to deny China's territorial sovereignty in the South China Sea.

There is abundant evidence showing that the real object of the Philippines in initiating the South China Sea Arbitration is to deny China's territorial sovereignty over Huangyan Dao (Scarborough Shoal) and the Nansha Islands. For instance, on 22 January 2013, the Philippine Department of Foreign Affairs released a Q&A on the arbitral proceedings, which explicitly described the purpose of the case as "to protect our national territory and maritime domain" and stressed not "surrendering our national sovereignty".

The Arbitral Tribunal also fails to evaluate objectively the practical effect of its processing of the Philippines' claims on China's territorial sovereignty in the South China Sea. China has always enjoyed sovereignty over the Nansha Islands in its entirety. The islands, reefs, islets and shoals etc., as inseparable components of the Nansha Islands, all form part of China's land territory. The Nansha Islands, taken as a whole, is capable of generating a territorial sea, exclusive economic zone and continental shelf. The Philippines' claims that features such as Mischief Reef (Meiji Jiao), Second Thomas Shoal (Ren'ai Jiao) and Subi Reef (Zhubi Jiao) are low-tide elevations which are incapable of appropriation, and requests the Tribunal to decide on the status and maritime entitlements of a small number of selected maritime features of China's Nansha Islands. If the Tribunal takes jurisdiction over and supports the claims, it will amount to an attempt to deny China's territorial sovereignty over the Nansha Islands as a whole.

III. The Tribunal disregards the fact that there exists an issue of maritime delimitation between China and the Philippines, distorts Article 298 of the UNCLOS, and acts ultra vires to exercise jurisdiction over claims concerning maritime delimitation

There exist between China and the Philippines a delimitation geographical framework and overlapping claims of maritime entitlements. None of the nine features in the South China Sea that are concerned in the Philippines' Submissions is over 400 nautical miles from the baseline of the Philippine archipelago. As China has been all long taking the Zhongsha Islands and the Nansha Islands as a unitary whole, respectively, to claim territorial sea, exclusive economic zone and continental shelf, while the Philippines has been claiming such rights based on its coast, there is obviously an issue of maritime delimitation between the two States. Any determination of the status and maritime entitlements of features will have an inevitable effect on the future delimitation between them. The Philippines' claims regarding the status and maritime entitlements of features constitute an integral part of maritime delimitation between China and the Philippines. In 2006, China made a declaration in line with Article 298 of the Convention, explicitly excluding "disputes concerning sea boundary delimitation" from the applicability of compulsory procedures, including arbitration.

The term of "disputes concerning sea boundary delimitation" under Article 298 of the UNCLOS includes, but is not limited to, "disputes over maritime boundary delimitation itself". The Tribunal, in an attempt to cut the objective link between the status and maritime entitlements of features on the one hand, and maritime delimitation on the other, narrows the interpretation of this term down to "disputes over maritime boundary delimitation itself". This is not in line with international law, international practice and the teachings of publicists, and is inconsistent with the drafters' intention to limit the application of compulsory procedures by Article 298.

IV. The Tribunal disregards the fact that there exist between China and the Philippines agreements to settle the relevant disputes through negotiation, distorts Article 281 of the UNCLOS, and erroneously exercises jurisdiction over the claims

The Tribunal's exercise of jurisdiction over the Philippines' claims is subject to fulfillment of the terms in Article 281 of the Convention. This article provides that if the Parties have agreed to seek settlement of the dispute by a peaceful means of their own choice, the dispute settlement procedures provided for in the Convention apply only where no settlement has been reached by recourse to such means and the agreement between the parties does not exclude any further procedure.

Article 281 of the Convention employs the term "agreement" without prescribing any limitation on form. The terms of "have agreed to" and "agreement", as interpreted in accordance with their ordinary meaning pursuant to the customary rule of treaty interpretation as reflected in Article 31 of the 1969 Vienna Convention on the Law of Treaties, refer to the unanimous expression of intentions or consensus. They stress the act of consensus itself, rather than the form or vehicle which gives expression to the consensus.

A series of bilateral instruments issued jointly by China and the Philippines and the Declaration on the Conduct of Parties in the South China Sea ("DOC") jointly signed by both States confirm the consensus of settling disputes in the South China Sea through negotiations, which constitute an agreement under Article 281 of the UNCLOS excluding any means of third-party dispute settlement procedure.

The Tribunal holds that neither the bilateral instruments nor the DOC constitute binding agreements between China and the Philippines, and proceeds on the basis to determine that there exists no agreement between the two States on the means of dispute settlement. This is a distortion of the term "agreement". Its approach runs counter to the ordinary meaning of the relevant provisions of the UNCLOS and its drafters' intention.

V. The Tribunal errs in finding that the Philippines had fulfilled the obligation to "exchange views" on the means of dispute settlement with regard to the claims it made

The Tribunal's exercise of jurisdiction over the Philippines' claims is also subject to the fulfillment of the precondition set in Article 283 of the Convention. This article requires that when a dispute arises between States Parties concerning the interpretation or application of the UNCLOS, the parties to the dispute shall proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means.

In the present Arbitration, the Tribunal confuses the subject-matters of the exchange of views, taking the consultations and exchange of notes verbales between China and the Philippines on the sovereignty over certain maritime features in the South China Sea as the evidence for the exchange of views with respect to disputes concerning the interpretation or application of the UNCLOS. The Tribunal relies on facts that occurred before the so-called "disputes" arose as the evidence of exchange of views on the "disputes". It deliberately lowers the criteria for the fulfillment of the obligation to exchange views, thus rendering Article 283 of the UNCLOS practically meaningless.

VI. The Tribunal is neither objective nor impartial, and its Award deviates from the object and purpose of the dispute settlement mechanism of the UNCLOS and impairs the integrity and authority of the Convention

The UNCLOS is "a package-deal instrument". In the present Arbitration, the integrity of the UNCLOS is impaired by the Tribunal which interprets and applies the relevant provisions in such a manner that it isolates the issue of the status and maritime entitlements of certain features from the sovereignty over the features, and from maritime delimitation. The Tribunal applies double standards in the interpretation and application of the relevant rules, acts partially in determining the facts, and does not comply with internationally prevalent rules in the admission of evidence.

The Tribunal makes every effort to expand and misuse its power arbitrarily. The vicious precedent that it sets may open the "floodgate of abuse lawsuits" regarding maritime disputes, which will impair not only China's vital and lawful rights and interests, but also the vital interests of States Parties in peaceful settlement of disputes under the UNCLOS, especially the right to freely choose the means of dispute settlement. Accordingly, it will damage the international legal order of the oceans and harm the overall interest of the international community.

The fundamental purpose of the dispute settlement mechanism under the UNCLOS is to contribute to the settlement of maritime disputes peacefully. Vital to the achievement of the above objectives is to interpret and apply the dispute settlement mechanism under the UNCLOS in good faith and in a comprehensive and integral manner, and to find the facts and admit the evidence in due diligence and in accordance with the law. In the present case, however, the Tribunal fails to fulfill the above requirements and acts ultra vires. As a result, the disagreements between China and the Philippines on relevant issues in the South China Sea have not been resolved but further intensified, and the tense situation in the South China Sea has not been alleviated but aggravated. These acts of the Tribunal run counter to the fundamental purpose of peaceful settlement of disputes of the UNCLOS.

In conclusion, the Tribunal's establishment of jurisdiction over the Philippines' claims is thoroughly erroneous. It is obvious that what the Tribunal has made is essentially a political decision. The Tribunal's exercise of jurisdiction ultra vires has been questioned by a large number of scholars of international law from China and abroad. Ex injuria jus non oritur. Any decision that the Tribunal may make on the substantive issues will not have any legal effect.

(China Daily 06/11/2016 page4)