III. The Arbitral 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

Even assuming, arguendo, the Philippines’ claims constitute disputes between China and the Philippines concerning the interpretation or application of the UNCLOS, the Tribunal still may not exercise its jurisdiction over the disputes, as the resolution of these disputes forms an integral part of the maritime delimitation between China and the Philippines and they have been excluded from the applicability of compulsory procedures, including arbitration, by China’s 2006 Declaration made under Article 298 of the Convention.

Pursuant to Article 298 of the UNCLOS, a State Party may declare in writing that it does not accept any one or more of the procedures provided for in Section 2, Part XV of the Convention, including arbitration, with respect to disputes concerning the interpretation or application of Articles 15, 74 and 83 relating to sea boundary delimitation (Article 298(1)(a)), disputes involving historic bays or titles (Article 298(1)(a)), disputes concerning military activities or law enforcement activities (Article 298(1)(b)), and disputes in respect of which the Security Council is exercising the functions assigned to it by the Charter of the United Nations (“the UN Charter”) (Article 298(1)(c)). The exceptions made pursuant to Article 298 are opposable to other States Parties. In other words, other States Parties may not initiate compulsory procedures against a State Party with respect to the above subject-matters which it has excluded by declaration, and the Tribunal has no jurisdiction over them. In 2006, China declared that “[t]he Government of the People’s Republic of China does not accept any of the procedures provided for in Section 2 of Part XV of the Convention with respect to all the categories of disputes referred to in paragraph 1 (a) (b) and (c) of Article 298 of the Convention”, which clearly excludes disputes concerning maritime delimitation and other subject-matters from the applicability of compulsory procedures.

With a view to circumventing the jurisdictional hurdle posed by China’s 2006 Declaration and to justifying its jurisdiction over relevant claims made by the Philippines, the Arbitral Tribunal disregards the fact that between China and the Philippines there exists an issue of maritime delimitation, and narrows the interpretation of the term “disputes concerning or relating to sea boundary delimitation” in Article 298 down to “disputes over maritime boundary delimitation itself”. Such moves are groundless in fact or law.

1. The Arbitral Tribunal ignores the fact that between China and the Philippines there exists an issue of maritime delimitation

China pointed out in its Position Paper that “[t]here exists an issue of maritime delimitation between the two States. Given that disputes between China and the Philippines relating to territorial sovereignty over relevant maritime features remain unresolved, the two States have yet to start negotiations on maritime delimitation. They have, however, commenced cooperation to pave the way for an eventual delimitation” (Position Paper, para.59). In its Award, the Tribunal deliberately ignores this fact, and finds that the Philippines’ claims do not concern maritime delimitation between the two States (See Award, paras.156-157).

As a matter of fact, 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, with Huangyan Dao (Scarborough Shoal) of the Zhongsha Islands less than 200 NM; Zhubi Jiao (Subi Reef), Huayang Jiao (Cuarteron Reef) and Yongshu Jiao (Fiery Cross Reef) of the Nansha Islands between 230 and 260 NM; other features less than 200 NM. 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. As far as the relevant claims of the Philippines are concerned, particularly in the specific context of geographical framework of the South China Sea and overlapping claims of maritime rights between the two States, any determination of the status and maritime entitlements of features will have an inevitable effect on the future delimitation between China and the Philippines. Therefore, the Philippines’ claims regarding the status and maritime entitlements of features constitute an integral part of maritime delimitation between China and the Philippines and have been excluded from compulsory procedures by China via its 2006 Declaration.

An examination of the Philippines’ claims also reveals that the relevant Submissions reflect a dispute concerning maritime delimitation. For instance, by requesting the Tribunal to determine that Mischief Reef (Meiji Jiao) and Second Thomas Shoal ( Ren’ai Jiao) are part of its exclusive economic zone and continental shelf and that certain Chinese activities unlawfully interfered with its enjoyment and exercise of sovereign rights in its exclusive economic zone, the Philippines was asking the Tribunal to declare that the relevant maritime zones were part of its exclusive economic zone and continental shelf and it enjoyed sovereign rights and jurisdiction in the zones. This is a request for maritime delimitation in disguise. The Philippines’ claims practically comprise the major steps and principal issues of maritime delimitation. If the Tribunal decides on the claims at the merits stage, it will amount to conducting maritime delimitation indirectly.

2. The Arbitral Tribunal’s interpretation of “disputes concerning/relating to sea boundary delimitation” as “disputes over maritime boundary delimitation itself” is not consistent with international law and practice

First, the Tribunal is of the view that a dispute concerning the existence of an entitlement to maritime zones is distinct and independent from a dispute concerning the delimitation of those zones, and that by its 2006 Declaration China only excludes disputes over maritime boundary delimitation itself from compulsory procedures. The Tribunal’s interpretation of relevant terms in Article 298 of the UNCLOS, however, does not conform to their ordinary meaning. The meaning of the terms “concerning” and “relating to” is essential to properly understand the scope of disputes concerning maritime boundary delimitation under Article 298(1)(a)(i). According to the rule of customary international law that treaty provisions shall be interpreted in accordance with the ordinary meaning of its terms, as reflected in Article 31(1) of the Vienna Convention on the Law of Treaties, the terms “relating to” and “concerning” used in Article 298(1)(a)(i) indicate that “disputes concerning sea boundary delimitation” include but are not limited to “disputes over maritime boundary delimitation itself”. This interpretation finds the support in international jurisprudence.

In expounding the term of “concerning” (arrest or detention of vessels) in the M/V “Louisa” Case, the ITLOS held in 2013 that “the use of the term ‘concerning’ in the declaration indicates that the declaration does not extend only to articles which expressly contain the word ‘arrest’ or ‘detention’ but to any provision of the Convention having a bearing on the arrest or detention of vessels” (The M/V “Louisa” Case (Saint Vincent and the Grenadines v. Kingdom of Spain), ITLOS Case No.18, Judgment of 28 May 2013, p.28, para.83). Similarly, in analyzing the scope of disputes “relating to the territorial status” in the Aegean Sea Continental Shelf Case, the ICJ held in 1978 that “[t]he question for decision in whether the present dispute is one ‘relating to the territorial status of Greece’, not whether the rights in dispute are legally to be considered as ‘territorial’ rights; and a dispute regarding entitlement to and delimitation of areas of continental shelf tends by its very nature to be one relating to territorial status”. (Aegean Sea Continental Shelf (Greece v. Turkey), Jurisdiction of the Court, Judgment of 19 December 1978, I.C.J. Reports 1978, p.36, para.86, emphasis added). It follows from the above judicial practice that if the determination of the status of maritime features has potential effect on the delimitation of territorial sea, exclusive economic zone or continental shelf (UNCLOS, arts.15, 74, 83), it should be regarded as falling within the scope of “disputes concerning sea boundary delimitation” in Article 298 (See Sienho Yee, “The South China Sea Arbitration (The Philippines v. China): Potential Jurisdictional Obstacles or Objections”, 13 Chinese Journal of International Law (2014), pp.711-717, paras.65-76).

Second, the Tribunal’s interpretation is inconsistent with the drafters’ intention in the negotiation of Article 298 of the UNCLOS to limit the application of compulsory procedures. In order to safeguard the right of States to settle disputes through means of their choice and to attract universal participation, the UNCLOS contains a series of limitations and exceptions to the applicability of compulsory procedures, including the optional exception of disputes concerning or relating to sea boundary delimitation allowed by Article 298(1). The travaux préparatoires of Article 298 shows that there were disagreements among negotiating States upon the scope of subject-matters that could be excluded from compulsory procedures. The original “1974 formula” suggested that the scope of exclusion might be confined to the actual process of delimitation, i.e. drawing a line on a map; The “1979 formula” which was adopted eventually is much wider in terms of the scope of exclusion, encompassing any preliminary issues such as the determination of maritime entitlements (See Chris Whomersley, “The South China Sea: The Award of the Tribunal in the Case Brought by Philippines against China - A Critique”, 15 Chinese Journal of International Law (2016), para.24). Thus it is apparent that the drafters’ intention is to constrain the application of compulsory procedures. In the present Arbitration, the Tribunal’s misinterpretation of the “optional exceptions” clause in an attempt to expand the scope of the compulsory procedures is inconsistent with the intention of drafters of Article 298.

Third, that the status and entitlements of maritime features form an integral part of maritime delimitation is not only widely supported by international practice, but also widely accepted among international publicists.

Disputes concerning or relating to sea boundary delimitation under Article 298 of the UNCLOS is a broad term. China pointed out in its Position Paper that “[m]aritime delimitation is an integral, systematic process” (Position Paper, para.67). Maritime delimitation is not a single-step operation of drawing a maritime boundary line. It also includes pre-steps and elements indispensable thereto, including the determination of the status and maritime entitlements of maritime features, principles and methods of delimitation, and all relevant elements that need to be taken into consideration to achieve equitable solutions. And as written by Nuno Marques Antunes, a Portuguese expert of international law, “[maritime] [d]elimitation stems from entitlement; it is founded on it” (Nuno Marques Antunes, Towards the Conceptualisation of Maritime Delimitation: Legal and Technical Aspects of a Political Process, Durham theses, Durham University, 2002, p.139,http://etheses.dur.ac.uk/4186/, last visited 8 June 2016).

China also argued in clear terms that “such legal issues as those presented by the Philippines in the present arbitration, including maritime claims, the legal nature of maritime features, the extent of relevant maritime rights, and law enforcement activities at sea, are all fundamental issues dealt with in past cases of maritime delimitation decided by international judicial or arbitral bodies and in State practice concerning maritime delimitation. In short, those issues are part and parcel of maritime delimitation” (Position Paper, para.66).

The Tribunal’s narrow interpretation of disputes concerning or relating to sea boundary delimitation is also inconsistent with international practice of maritime delimitation. The intimate connection between the status of maritime features and maritime delimitation was confirmed by the ICJ, for instance, in the Territorial and Maritime Dispute Case between Nicaragua and Colombia. In practice, the status of maritime features and maritime entitlements form an integral part of maritime delimitation. In the present Arbitration, the Philippines’ claims concerning China’s maritime rights in the South China Sea and the extent of the rights include pre-steps and elements indispensable to the further maritime delimitation between China and the Philippines, hence within the scope of disputes concerning or relating to sea boundary delimitation under Article 298 of the UNCLOS.

Furthermore, at least two arbitrators sitting in the present Arbitration expressed in their past publications the view that the determination of the status and maritime entitlements of maritime features and maritime delimitation shall not be dealt with separately. Mr. Alfred H.A. Soons, for instance, wrote with a co-author on the relationship between the two issues on at least two occasions. As early as in 1990, well before the UNCLOS entered into force, he and his co-author pointed out that “the definition of rocks and their entitlement to maritime spaces, like the definition and entitlement of islands in general, forms an inherent part of maritime boundary delimitation between opposite/adjacent States and, as State practice clearly evidences, these issues will not give rise to controversies unless such delimitation is in dispute” (Barbara Kwiatkowska and Alfred H.A. Soons, “Entitlement to Maritime Areas of Rocks Which Cannot Sustain Human Habitation or Economic Life of Their Own”, 21 Netherlands Yearbook of International Law (1990), p.181). In 2011, he wrote again with the same co-author that “[i]n fact, with a single exception of Okinotorishima, the issues of eventual application of Article 121(3) does not arise in practice unless in the context of specific maritime delimitations, often intertwined with disputes over sovereignty” (Barbara Kwiatkowska and Alfred H.A. Soons, “Some Reflections on the Ever Puzzling Rocks - Principle Under UNCLOS Article 121(3)”, The Global Community: Yearbook of International Law and Jurisprudence (2011), p.114). Mr. Soons has been maintaining expressly and consistently over 20 years that disputes concerning the status and maritime entitlements of features shall not be addressed in isolation in practice, but form an indispensable part of maritime delimitation.

Mr. Jean-Pierre Cot, another arbitrator in the present Arbitration, wrote in 2012 that while the definition of entitlement of a coastal State and the delimitation between opposing claims are distinct, the two operations are interrelated (See Jean-Pierre Cot, “The Dual Function of Base Points”, in Holger Hestermeyer, et al. (eds.), Coexistence, Cooperation and Solidarity: Liber Amicorum Rüdiger Wolfrum (Martinus Nijhoff, 2012), pp.820-824).

In the present Arbitration, the above two arbitrators supported a decision that is contrary to their long-standing position, without providing any reasons for their dramatic change of position. It renders their impartiality questionable.

Therefore, the legal status and maritime entitlements of relevant features are matters concerning or relating to sea boundary delimitation, and constitute an integral part of maritime delimitation. The Tribunal disregards the fact that there exists an issue of maritime delimitation between China and the Philippines, and decides to consider disputes regarding the status and maritime entitlements of features in isolation from maritime delimitation, which is contrary to the provisions and spirit of the UNCLOS. No such precedent exists in international practice. Its finding of jurisdiction over such submissions concerning maritime delimitation between China and the Philippines is thus thoroughly erroneous.

IV. The Arbitral 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 procedures provided for in Part XV 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” (UNCLOS, art.281(1), emphasis added). According to the provision, prior to a finding of jurisdiction, the Tribunal must examine whether there exists such an “agreement” between China and the Philippines to settle disputes through the means of their own choice, and if there does, whether the “agreement” excludes “any further procedure”, including, inter alia, arbitration.

What is the “agreement” under Article 281 of the UNCLOS? The provision 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 rule of 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. The parties would have an “agreement” within the meaning of Article 281 in so far as they have a consensus on their own will, be it expressed in oral or written form, embodied in a treaty or another international instrument, in the form of one or multiple instruments, or in specific provision(s) in one or more instruments. Once the parties “have agreed to” settle their disputes through the means of their own choice, they bear the international obligation to act in line with such “agreement”, according to the UNCLOS.

There exists an “agreement” within the meaning of Article 281 of the UNCLOS between China and the Philippines. This is evident from 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, which confirm the consensus of settling disputes in the South China Sea through consultations and negotiations.

For instance, under the Joint Statement between the People’s Republic of China and the Republic of the Philippines concerning Consultations on the South China Sea and on Other Areas of Cooperation, issued on 10 August 1995, both sides “agreed to abide by” the principles that “[d]isputes shall be settled in a peaceful and friendly manner through consultations on the basis of equality and mutual respect” (Point 1, emphasis added); that “a gradual and progressive process of cooperation shall be adopted with a view to eventually negotiating a settlement of the bilateral disputes” (Point 3, emphasis added); and that “[d]isputes shall be settled by the countries directly concerned without prejudice to the freedom of navigation in the South China Sea” (Point 8, emphasis added).

The Joint Statement of the China-Philippines Experts Group Meeting on Confidence-Building Measures, issued on 23 March 1999, states that “the two sides ... have agreed that the dispute should be peacefully settled through consultation” (para.12, emphasis added).

The Joint Statement between the Government of the People’s Republic of China and the Government of the Republic of the Philippines on the Framework of Bilateral Cooperation in the Twenty-First Century, issued on 16 May 2000, states in Point 9 that, “[t]he two sides commit themselves to the maintenance of peace and stability in the South China Sea. They agree to promote a peaceful settlement of disputes through bilateral friendly consultations and negotiations in accordance with universally-recognized principles of international law, including the 1982 United Nations Convention on the Law of the Sea. They reaffirm their adherence to the 1995 joint statement between the two countries on the South China Sea” (emphasis added).

The mutual understanding between China and the Philippines to settle relevant disputes through negotiation has also been reaffirmed in a regional multilateral instrument. On 4 November 2002, Mr. Blas F. Ople, the then Secretary of Foreign Affairs of the Philippines, the Ministers or Secretaries of Foreign Affairs of the other nine Member States of the Association of Southeast Asian Nations (“ASEAN”), and Mr. Wang Yi, the then Vice Foreign Minister and representative of the Chinese Government jointly signed the DOC. Paragraph 4 of the DOC explicitly states that, “[t]he Parties concerned undertake to resolve their territorial and jurisdictional disputes by peaceful means ... through friendly consultations and negotiations by sovereign states directly concerned, in accordance with universally recognized principles of international law, including the 1982 UN Convention on the Law of the Sea” (emphasis added).

Since then, the leaders of China and the Philippines have repeatedly reiterated in various documents their commitment to actively implement or comply with provisions of the DOC, including its Paragraph 4 concerning the obligation to settle their disputes through negotiation. A Joint Press Statement between the Government of the People’s Republic of China and the Government of the Republic of the Philippines was issued on 3 September 2004 during the State visit to China by Gloria Macapagal-Arroyo, the then Philippine President, which states that, “[t]hey agreed that the early and vigorous implementation of the 2002 ASEAN-China Declaration on the Conduct of Parties in the South China Sea will pave the way for the transformation of the South China Sea into an area of cooperation” (Paragraph 16, emphasis added). A Joint Statement between the People’s Republic of China and the Republic of the Philippines was made on 1 September 2011 during the State visit to China by President Benigno S. Aquino III, which “reiterated their commitment to addressing the disputes through peaceful dialogue” and “reaffirmed their commitments to respect and abide by the Declaration on the Conduct of Parties in the South China Sea signed by China and the ASEAN member countries in 2002” (Paragraph 15, emphasis added). This Joint Statement reaffirmed Paragraph 4 of the DOC on settlement of relevant disputes by negotiations.

On 1 August 2014, the Philippine Department of Foreign Affairs made a proposal, calling on the parties to the DOC to comply with Paragraph 5 of the DOC and to provide “the full and effective implementation of the DOC”.

The repeated employment of such terms as “agree”, “undertake” and “shall” in the above documents, when referring to the settlement of disputes through negotiation, evinces a clear intention to establish an obligation between the two States in this regard. The relevant provisions are mutually reinforcing and make clear the existence of a consensus on establishing international obligations. It shows that there is an “agreement” between China and the Philippines on the means of dispute settlement.

At the same time, China and the Philippines have excluded, in their “agreement” under Article 281 of the UNCLOS, any other procedures of dispute settlement, including arbitration. The Convention does not specify what amounts to exclusion of “any further procedure”. The Tribunal held that “the better view is that Article 281 requires some clear statement of exclusion of further procedures” (Award, para.223). This assertion is untenable. Whether an exclusion is made in an agreement essentially depends on the genuine intentions of the parties, rather than the specific form of expression. As the arbitral tribunal in the Southern Bluefin Tuna Case stated in its Award of 2002, “the absence of an express exclusion of any procedure … is not decisive” (Southern Bluefin Tuna Case (Australia and New Zealand v. Japan), Award on Jurisdiction and Admissibility, 4 August 2000, para. 57). The intention of both China and the Philippines to exclude third-party dispute settlement procedures, including arbitration, is clear from relevant provisions of the bilateral instruments between China and the Philippines and the DOC.

By repeatedly emphasizing that any disputes in the South China Sea must be settled through negotiation between sovereign States directly concerned, the bilateral instruments and Paragraph 4 of the DOC obviously have produced the effect of excluding any means of third-party dispute settlement procedure. For instance, the Joint Statement between the People’s Republic of China and the Republic of the Philippines concerning Consultations on the South China Sea and on Other Areas of Cooperation of 10 August 1995 stipulates in Point 3 that “a gradual and progressive process of cooperation shall be adopted with a view to eventually negotiating a settlement of the bilateral disputes” (emphasis added). The term “eventually” in this context clearly serves to emphasize that “negotiation” is the only means the parties have chosen for dispute settlement, to the exclusion of any other means including third-party settlement procedures. The Joint Statement between the Government of the People’s Republic of China and the Government of the Republic of the Philippines on the Framework of Bilateral Cooperation in the Twenty-First Century, issued on 16 May 2000, reaffirms in Point 9 “their adherence to the 1995 joint statement between the two countries on the South China Sea”. As another piece of evidence for the intention behind Paragraph 4 of the DOC to exclude other procedures, Vietnam stated that all disputes relating to the South China Sea “must be settled through peaceful negotiations, in accordance with international law, especially the 1982 United Nations Convention on the Law of the Sea and the Declaration on the Conducts of Parties in the South China Sea (Eastern Sea) - DOC” in a note verbale to the Secretary-General of the United Nations on 18 August 2009 (emphasis added).

China adheres to the principle of peaceful settlement of international disputes, and respects the right of other States to freely choose the peaceful means of dispute settlement. On issues concerning territorial sovereignty and maritime rights and interests, it is China’s long-standing foreign policy and consistent practice to settle the disputes peacefully through negotiation and consultation, and not to accept any compulsory third-party procedures. There has never been any exception to this policy and practice. This position of China is based on the practical consideration that the “consensus” of the parties is the foundation for resolving any disputes, and is inherent in the centuries-long Chinese cultural tradition that advocates “harmony being the most precious” and “non-litigation”. This position was made clear and is well known to the Philippines and other relevant parties during the drafting and adoption of the aforementioned bilateral instruments and the DOC.

To summarize, relevant provisions in a series of bilateral instruments and the DOC reflect an “agreement” between China and the Philippines under Article 281 of the UNCLOS, which excludes any other procedures. The two parties thus have the international obligation to settle their disputes through negotiation, and neither shall resort to compulsory procedures such as arbitration.

The Tribunal holds that neither the bilateral instruments nor the DOC constituted binding agreements between China and the Philippines (See Award, paras.217, 245). It proceeds to determine that there exists no agreement between the two States on the means of dispute settlement within the meaning of Article 281 of the UNCLOS. This is a distortion of the term “agreement” in Article 281 of the UNCLOS which stresses the act of consensus itself, rather than its form. The Tribunal’s determination of the existence of agreement is based on the form and vehicle of the expression of will, and neglects that the essence of “agreement” is the act of consensus itself. This approach of the Tribunal runs counter to the ordinary meaning of the relevant provisions of the UNCLOS and its drafters’ intention.

V. The Arbitral Tribunal errs in finding that the Philippines had fulfilled the obligation to “exchange views” regarding the means of disputes settlement with respect to the claims it made

The Tribunal’s exercise of jurisdiction over the Philippines’ claims is subject to the fulfillment of the precondition set in Article 283 of the Convention. That Article provides that when a dispute arises between States Parties, the parties to the dispute shall proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means. This provision reflects the spirit to pay due respect to the intention of parties to a dispute and to ensure that they have sufficient opportunities to choose means of dispute settlement. According to Article 283 of the UNCLOS and relevant international practice, the exchanges of views must be centered on issues concerning the interpretation or application of the Convention, and must be those that are conducted after the emergence of the dispute. The fulfillment of the obligation shall be measured by certain specific criteria. In the present Arbitration, the Tribunal’s determination that the Philippines had fulfilled the obligation is groundless in fact and law.

First, the Tribunal fails to identify the relevant subject-matters of the exchange of views between China and the Philippines. The exchange of views, which China and the Philippines made with respect to various issues of the South China Sea, mostly concerned the sovereignty over certain maritime features in the South China Sea, in particular Huangyan Dao (Scarborough Shoal) and Meiji Jiao (Mischief Reef), and the management and control of contingencies in the disputed areas, rather than issues concerning the interpretation or application of the UNCLOS. In the Award, the Tribunal concludes that the Philippines had fulfilled the obligation to exchange views, on the basis of two rounds of consultations that China and the Philippines conducted in 1995 and 1998, and the exchange of notes verbales surrounding the issue of Scarborough Shoal (Huangyan Dao) in April 2012. However, it also admits that the two rounds of consultations in 1995 and 1998 pertained to “sovereignty over the Spratly Islands (Nansha Islands) and certain activities at Mischief Reef (Meiji Jiao)” (Award, para.336, emphasis added); and as a matter of fact, under discussion in the 2012 notes verbales remained the territorial sovereignty over Huangyan Dao (Scarborough Shoal). Thus seen, the subject-matter of the exchange of views between China and the Philippines did not concern the interpretation or application of the UNCLOS. Therefore, it cannot be concluded that the Philippines had fulfilled the obligation to exchange views under Article 283 of the UNCLOS with respect to the subject-matter of its claims.

Second, the Tribunal relies on facts that occurred before the so-called “disputes” arose as the evidence of exchange of views on the “disputes”. The exchanges of views pertaining to a dispute must be those that are conducted subsequent to the emergence of the dispute. In its demonstration for the existence of disputes between China and the Philippines on “historic rights” and the status of maritime features, the Tribunal refers to various bilateral notes verbales exchanged between 2009 and 2011, suggesting that the so-called “disputes” arose in as early as 2009. However, in the demonstration of the two States’ exchanges of views on the “disputes”, the consultations and exchange of notes verbales that the Tribunal relied on mostly happened before 2009. While admitting the above to be the facts (See Award, para.336), the Tribunal ultimately persisted in taking them as valid acts of exchange of views (See Award, para.342) for purposes of Article 283. This is absurd.

Third, the Tribunal deliberately lowered the criteria for the fulfillment of the obligation to exchange views. Given the variety of voluntary and compulsory means of dispute settlement provided for under the UNCLOS, the exchange of views is necessary for the parties to be aware of the means to be selected. In the Chagos Arbitration, the Tribunal stressed that Article 283 “was intended to ensure that a State would not be taken entirely by surprise by the initiation of compulsory proceedings”, and it “requires that a dispute have arisen with sufficient clarity that the Parties were aware of the issues in respect of which they disagreed” (In the Matter of the Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), PCA Case No.2011-3, Award of 18 March 2015, p.149, para.382).

In the meantime, the obligation to exchange views stipulated in Article 283, as a part of voluntary choice of dispute settlement procedures, is a precondition to the initiation of compulsory procedures and reflects the drafters’ intention to give priority to dispute settlement procedures of the parties’ own choice. The obligation to exchange views is not merely a compulsory obligation, but also a priority obligation. Therefore, in performing the obligation under Article 283, the parties should be assured of having sufficient opportunities to express their preference regarding the means of dispute settlement. Therefore, the exchange of views must be meaningful and substantial consultations regarding the means of dispute settlement. As Judge P. Chandrasekhara Rao observed in 2003 in the Malaysia v. Singapore Case, “[t]he requirement of this article regarding exchange of views in not an empty formality” (Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore), Provisional Measures, ITLOS Case No.12, Order of 8 October 2003, Separate Opinion of Judge Chandrasekhara Rao, p.39, para.11). In the Southern Bluefin Tuna Case, the arbitral tribunal regarded the “prolonged, intense and serious” negotiations as fulfilling the obligation of exchange of views (Southern Bluefin Tuna Case (Australia and New Zealand v. Japan), Award on Jurisdiction and Admissibility, 4 August 2000, para.55).

The criteria for the fulfillment of the obligation to exchange views were lowered substantially by the Tribunal in the present Arbitration. For instance, on the basis of the Philippines’ note verbale to China dated 26 April 2012 and China’s reply three days later, the Tribunal concluded that the Philippines had fulfilled the obligation with respect to claims regarding the Scarborough Shoal (Huangyan Dao) (See Award, paras.340-342). Leaving aside the fact that the core of the subject-matter of the above notes verbales is the territorial sovereignty over Huangyan Dao (Scarborough Shoal) rather than a matter concerning the interpretation or application of the UNCLOS, the criteria set by the Tribunal for assessing the fulfillment of the obligation to exchange views render Article 283 of the UNCLOS practically meaningless.