The Tribunal’s Award in the “South China SeaArbitration”

Initiated by the PhilippinesIs Null and Void

Chinese Society of International Law

10 June 2016

Since 22 January 2013 when 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 7 December 2014, the Chinese Government released the Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines (“Position Paper”), which elaborated on these positions. The Chinese Society of International Law strongly supports the positions of the Chinese Government.

China has indisputable sovereignty over the South China Sea Islands and the adjacent waters. The core of the disputes between China and the Philippines in the South China Sea is issues of territorial sovereignty resulting from the Philippines’ illegal seizure and occupation of certain maritime features from China in the Nash Islands, and issues concerning maritime delimitation between the two States. These are also exactly the essence of the Arbitration instituted by the Philippines.

On 29 October 2015, the Tribunal issued its Award on Jurisdiction and Admissibility (“Award on Jurisdiction” or “Award”), in which it found that disputes between China and the Philippines concerning the interpretation or application of the United NationsConvention on the Law of the Sea (“UNCLOS” or “Convention”) existed with respect to the matters raised by the Philippines in all of its Submissions. The Tribunal further 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, at least in the following six respects:

First, 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;

Second, the Tribunal errs in taking jurisdiction over claims which in essence are issues of sovereignty over land territory and are beyond the purview of the UNCLOS;

Third, the Tribunal errs in taking jurisdiction over claims concerning maritime delimitation which have been excluded by China from compulsory procedures in line with the UNCLOS;

Fourth, the Tribunal errs in denying that there exists between China and the Philippines an agreement to settle the disputes in question through negotiation;

Fifth, the 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;

Sixth, the Tribunal’s Award deviates from the object and purpose of the dispute settlement mechanism under the UNCLOS, and impairs the integrity and authority of the Convention.

The Chinese Society of International Law is of the view that having jurisdiction over the claims is a prerequisite for the Tribunal to initiate its proceedings on merits, and a basis for the validity of any final decisions. In the present Arbitration, the Tribunal does not have jurisdiction over any of the claims made by the Philippines. Its Award on Jurisdiction is groundless both in fact and in law, and is thus null and void. Therefore, any decision that it may make on substantive issues in the ensuing proceedings will equally have no legal effect.

I. The Arbitral 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

The Arbitral Tribunal recognizes that, under Article 288(1) of the UNCLOS, its jurisdiction is limited to “disputes concerning the interpretation and application of this Convention” (Award, para.130). The Tribunal also recognized that, to find its jurisdiction in the present Arbitration, it must be satisfied that 1) disputes existed between China and the Philippines with respect to the claims made by the Philippines, and 2) the disputes, if they existed, concerned the interpretation or application of the UNCLOS. It concludes that “disputes between the Parties concerning the interpretation and application of the Convention exist with respect to the matters raised by the Philippines in all of its Submissions in these proceedings” (Award, para.178). This conclusion, however, is untenable.

1. The Arbitral Tribunal erroneously determines that the relevant claims constitute disputes between China and the Philippines

A dispute in an international judicial or arbitral procedure is “a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons” (Award, para.149, quoting from Mavrommatis PalestineConcessions, Jurisdiction, Judgment of 30 August 1924, PCIJ Series A, No.2, p.11). This classic definition of “dispute” has been followed extensively in practice by the International Court of Justice (“ICJ”) and other international judicial or arbitral bodies.

In international practice, to determine the existence of a dispute, one must first demonstrate that specific subject-matters on which the parties disagree have come into existence before the judicial or arbitral proceedings are initiated. As the ICJ pointed out in 2011 in the Georgia v. Russian Federation Case, a State, prior to the initiation of proceedings, “must refer to the subject-matter of the treaty with sufficient clarity to enable the State against which a claim is made to identify that there is, or may be, a dispute with regard to that subject-matter” (Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011, p.85, para.30, emphasis added). Second, apart from the existence of subject-matter of disagreement, one must also demonstrate that there is “clash of propositions” or “point of contention” on the same subject-matter or claim. In the South West Africa Cases, the ICJ held in 1962 that to prove the existence of a dispute, “[i]t must be shown that the claim of one party is positively opposed by the other” (Award, para.149, quoting from South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment of 21 December 1962, I.C.J. Reports 1962, p.328, emphasis added). Therefore, a mere assertion by one party does not suffice to prove the existence of a dispute. It must be shown that the parties maintain “opposing attitudes” or “opposite views” on the same subject-matter. It is based on these criteria that the ICJ has found the existence of a dispute in a number of cases (See e.g., Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Preliminary Objections, Judgment of 17 March 2016, pp.29-32, paras.67-79; Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011, pp.84-85, paras.30-31; East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p.99, para.22).

In the present Arbitration, it is obvious that the Tribunal did not follow the above-mentioned rules and practice of international law in determining the existence of disputes. To take a few examples:

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 order to prove that this claim constitutes a dispute between China and the Philippines, it must be shown, with factual proof, that prior to the initiation of arbitration the Philippines had made such a claim to China and the claim had been positively opposed by China. The Tribunal should have done this, but it did not.

In its Submission No. 4, the Philippines 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 order to prove that this claim constitutes a dispute between China and the Philippines, it must be shown, with factual proof, that prior to the initiation of arbitration the Philippines had made such a claim to China and the claim had been positively opposed by China. The Tribunal should have done this, but it did not.

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 order to prove that this claim constitutes a dispute between China and the Philippines, it must be shown, with factual proof, that prior to the initiation of arbitration the Philippines had made such a claim to China and the claim had been positively opposed by China. The Tribunal should have done this, but it did not.

In its Submission No. 7, the Philippines 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 this claim constitutes a dispute between China and the Philippines, it must be shown, with factual proof, that prior to the initiation of arbitration the Philippines had made such a claim to China and the claim had been positively opposed by China. The Tribunal should have done this, but it did not.

As is clear from the above analysis, the Tribunal should have concluded that the above-mentioned claims of the Philippines did not constitute disputes between China and the Philippines. But, regrettably, the Tribunal does not apply the above-mentioned requirements to the Philippines’ claims, one by one, in accordance with international law. It attempts to infer the existence of disputes between China and the Philippines with respect to the above claims, simply by bundling them together and asserting that they “reflect a dispute concerning the status of the maritime features and the source of maritime entitlements in the South China Sea” (Award, para.169, emphasis added). By generalizing claims regarding the status and maritime entitlements of “specific” features into a “general” disagreement concerning the status of maritime features and the source of maritime entitlements in the South China Sea, the Tribunal, sub silentio, replaces one concept with another, in order to conceal its incapability to prove that the Philippines’ claims regarding the status and maritime entitlements of the nine features constitute disputes between China and the Philippines. The Tribunal then attempts to justify its approach by asserting that a dispute concerning the maritime entitlements generated in the South China Sea “is not negated by the absence of granular exchanges with respect to each and every individual feature” (Award, para.170), without giving any legal ground for this assertion, and further, says only evasively that it must “distinguish between the dispute itself and arguments used by the parties to sustain their respective submissions on the dispute” (Award, para.170). The conclusion of the Tribunal is thus unconvincing.

In fact, there exists no real “clash of propositions” between China and the Philippines with respect to the latter’s Submissions No. 3, 4, 6 and 7. China has always maintained and enjoyed territorial sovereignty over the Zhongsha Islands (including Huangyan Dao (Scarborough Shoal)) and the Nansha Islands (including the above-mentioned eight features such as Meiji Jiao (Mischief Reef)) in their entirety. It has neither expressed its position on the status of individual features referred to by the Philippines such as Huangyan Dao (Scarborough Shoal), Meiji Jiao (Mischief Reef) and Ren’ai Jiao (Second Thomas Shoal), nor claimed maritime entitlements based on individual features in question, each separately as a single feature. The Philippines, on the other hand, formulated its claims on the status and maritime entitlements of certain individual features as separate features. These facts reflect that the propositions of China and the Philippines concern different issues and do not pertain to the same subject-matters. There are no positively opposed disagreements, thus no disputes, with respect to the same subject-matters.

It is undeniable that disagreements exist between China and the Philippines with respect to issues regarding the South China Sea. However, the disagreements, in essence, concern territorial sovereignty over certain features and maritime delimitation between the two States in the South China Sea, and constitute no dispute with respect to the claims advanced by the Philippines. An international judicial or arbitral body shall address “real” disputes between “real” parties with respect to “real” issues. However, in the present Arbitration the Tribunal distorts China’s arguments and erroneously finds that there exist disputes between China and the Philippines over the latter’s claims.

2. The Arbitral Tribunal erroneously determines that the relevant claims concern the interpretation or application of the UNCLOS

Even if a claim constitutes a dispute, the Arbitral Tribunal would still have no jurisdiction over it if it does not concern the interpretation or application of the UNCLOS (UNCLOS, art. 288). Obviously, the interpretation or application of general international law, including customary international law, shall not be regarded as falling within the scope of the Tribunal’s jurisdiction. As written by Rothwell and Stephens, both Australian international lawyers, “[t]he Part XV dispute settlement mechanisms ... do not have jurisdiction over disputes arising under general international law” (Donald R Rothwell and Tim Stephens, The International Law of the Sea (Hart Publishing, 2010), p.452).

In the present case, in its Submissions No. 1 and 2, the Philippines in essence requests the Tribunal to declare that China’s maritime entitlements in the South China Sea are beyond those permitted by the UNCLOS and thus are without lawful effect. The Tribunal finds that the relevant dispute between China and the Philippines is “a dispute about historic rights in the framework of the Convention”, and “a dispute concerning the interpretation and application of the Convention” (Award, para.168). However, “historic rights” had come into existence long before the conclusion of the UNCLOS. Although the nature and scope of “historic rights” remain undetermined, it can be safely asserted that 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. In the Continental Shelf Case?between Tunisia and Libya, the ICJ pointed out in 1982 that “the notion of historic rights or waters … are governed by distinct legal régimes in customary international law” (Continental Shelf (Tunisia v. Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982, p.74, para.100). Ted L. McDorman, a Canadian international lawyer, also wrote that, “whether historic rights exist is not a matter regulated by UNCLOS … when these rights involve fisheries and the resources of the continental shelf UNCLOS does become engaged” (Ted L McDorman, “Rights and jurisdiction over resources in the South China Sea: UNCLOS and the ‘nine-dash line’”, in S. Jayakumar, Tommy Koh and Robert Beckman (eds.), The South China Sea Disputes and Law of the Sea (Edward Elgar Publishing, 2014), p.152).

To prove that a dispute concerns the interpretation or application of the UNCLOS, it is not adequate to show that it falls within the purview of the Convention. It must also be shown that the dispute is related to certain substantive provisions of the Convention, and a real link exists between them. In the M/V “Louisa” Case, the International Tribunal for the Law of the Sea (“ITLOS”) stressed in 2013 that “it must establish a link between the facts advanced by [the Applicant] ... and the provisions of the Convention referred to by it and show that such provisions can sustain the claim or claims submitted by [the Applicant]”, in deciding whether the dispute between the parties concerned the interpretation or application of the UNCLOS (The M/V “Louisa” Case (Saint Vincent and the Grenadines v. Kingdom of Spain), ITLOS Case No.18, Judgment of 28 May 2013, p.32, para.99). In 2012, Wolfrum and Cot, both sitting in the present case, stated in the Ara Libertad Case that “[i]t is for the Applicant … to invoke and argue particular provisions of the Convention which plausibly support its claim and to show that the views on the interpretation of these provisions are positively opposed by the Respondent” (The “ARA Libertad” Case (Argentina v. Ghana), Provisional Measures, ITLOS Case No.20, Order of 15 December 2012, Joint Separate Opinion of Judge Wolfrum and Judge Cot, p.12, para.35). Furthermore, in the Georgia v. Russian Federation Case, Judge Koroma observed in 2011 that “a link must exist between the substantive provisions of the treaty invoked and the dispute ... any jurisdictional title founded on CERD’s compromissory clause must relate to, and not fall outside, the substantive provisions of the Convention” (Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011, Separate Opinion of Judge Koroma, p.185, para.7).

In the present Arbitration, with regard to the Philippines’ Submissions No. 1 and 2 concerning “historic rights”, the Tribunal makes a sweeping conclusion that the relevant claims constitute a dispute concerning the interpretation or application of the UNCLOS, without identifying which specific provisions that the “dispute” relates to, and whether a real link exists between the “dispute” and the specific provisions. The conclusion is thus groundless in law.