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 Nations Convention 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 Palestine Concessions, 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.

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

Under the UNCLOS, the jurisdiction of the Arbitral Tribunal is limited to “any dispute concerning the interpretation or application of this Convention” (UNCLOS, art. 288(1)). This naturally does not cover disputes concerning sovereignty over land territory, which are beyond the purview of the Convention. That sovereignty over land territory is a matter beyond the scope of the interpretation and application of the UNCLOS was upheld by the Tribunal in 2015 in the Chargos Marine Protected Area Arbitration under Annex VII of the Convention (See In the Matter of the Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), PCA Case No.2011-3, Award of 18 March 2015, pp.88-90, paras.213-221). This is further confirmed by the stipulation on the exclusion of matters from compulsory conciliation in the UNCLOS. Article 298(1)(a), while laying down the obligation of accepting compulsory conciliation for States Parties that have made an optional exceptions declaration, provides that “any dispute that necessarily involves the concurrent consideration of any unsettled dispute concerning sovereignty or other rights over continental or insular land territory shall be excluded from [the compulsory conciliation]”. With disputes concerning sovereignty over land territory excluded from compulsory conciliation which is a complementary mechanism to compulsory procedures provided for in Part XV, Section 2 of the UNCLOS and does not entail binding decisions, there is no reason why they are not excluded from arbitration, which is compulsory third-party procedure entailing binding decisions.

In the present Arbitration, in an attempt to circumvent the above-mentioned jurisdictional hurdle, the Philippines tried its best to conceal the intrinsic linkage between its claims and the issue of territorial sovereignty, and requested the Tribunal to rule on the limits of China’s maritime entitlements, the status and maritime entitlements of relevant features, and the lawfulness of China’s maritime activities in the South China Sea, without deciding on the territorial sovereignty over any maritime features. In this regard, China rightly stated in its Position Paper that “[t]he essence of the subject-matter of the arbitration is the territorial sovereignty over several maritime features in the South China Sea, which does not concern the interpretation or application of the Convention” (See Position Paper, Section II).

The Arbitral Tribunal, however, did not accept China’s above position, holding that it “does not accept, however, that it follows from the existence of a dispute over sovereignty that sovereignty is also the appropriate characterisation of the claims the Philippines has submitted in these proceedings” (Award, para.152). The Tribunal itself creates two criteria for the determination that the Philippines’ Submissions could be understood to relate to the issue of sovereignty, i.e. “(a) the resolution of the Philippines’ claims would require the Tribunal to first render a decision on sovereignty, either expressly or implicitly [‘the first criterion’]; or (b) the actual objective of the Philippines’ claims was to advance its position in the Parties’ dispute over sovereignty [‘the second criterion’]” (Award, para.153). The Tribunal then proceeded to find that neither of the situations was the case, and none of the Philippines’ Submissions reflected disputes concerning sovereignty over maritime features. This finding, however, is completely erroneous.

1. 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 former in isolation from sovereignty

In its application of the first criterion mentioned above, the Tribunal holds that “[t]he Philippines has not asked the Tribunal to rule on sovereignty and, indeed, has expressly and repeatedly requested that the Tribunal refrain from so doing. The Tribunal likewise does not see that any of the Philippines’ Submissions require an implicit determination of sovereignty” (Award, para.153). It simply subscribes to the one-sided statement of the Philippines without giving any reasoning. Nor did it examine the objective link between the Philippines’ claims and the issue of territorial sovereignty.

As a matter of fact, there is an inextricable link between the Philippines’ claims and the issue of territorial sovereignty between China and the Philippines. In order to address the Philippines’ claims, the Tribunal must first ascertain territorial sovereignty over certain maritime features in the South China Sea. According to the principle “the land dominates the sea” in international law (North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, p.51, para.96; Aegean Sea Continental Shelf (Greece v. Turkey), Judgment, I.C.J. Reports 1978, p.36, para.86), territorial sovereignty over the land is the basis of and precondition for maritime entitlements. As pointed out by the ICJ in several cases, “maritime rights derive from the coastal State’s sovereignty over the land” (Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, p.97, para.185), and “[i]t is the terrestrial territorial situation that must be taken as starting point for the determination of the maritime rights of a coastal State” (Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, p.97, para.185; Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007, p.696, para.113). Maritime rights under the framework of the UNCLOS are based on a State’s sovereignty over land territory. The Convention recognizes at the outset in its Preamble “the desirability of establishing through this Convention, with due regard for the sovereignty of all States, a legal order for the seas and oceans”. It is self-evident that no due regard could be paid to the sovereignty of relevant States if maritime rights are decided upon with the relevant territorial sovereignty unresolved. Therefore, the ascertainment of the scope of a State’s territorial sovereignty is the prerequisite for the determination of its maritime rights according to the UNCLOS.

Specifically, the Philippines claimed in its Submissions No. 1 and 2 that China’s claim of maritime rights in the South China Sea extended beyond those permitted by the UNCLOS. The Tribunal held that the claims reflected a dispute concerning the source of maritime entitlements in the South China Sea and the interaction of China’s claimed “historic rights” with the provisions of the Convention and that it is not a dispute concerning sovereignty (See Award, paras.164, 398 and 399). However, without first having determined China’s territorial sovereignty over the relevant 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. Hence, without first resolving the issue of territorial sovereignty over relevant maritime features between China and the Philippines, the Tribunal is not in a position to decide on the Philippines’ Submissions No. 1 and 2.

The Tribunal held that the Philippines’ Submissions No. 8 through 14 concerned the lawfulness of China’s activities in the South China Sea and not sovereignty, which are concerned with the interpretation or application of the UNCLOS (See Award, paras.173, 405-411). 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. China’s activities in the relevant maritime zones are lawful acts in exercise of its sovereignty over the features and in enjoyment of maritime rights derived therefrom. With respect to the Philippines’ claims, it would be impossible, without first ascertaining the sovereignty over the features in question, to determine the entitlements with respect to the maritime zones, and to further decide upon the l of China’s activities in issue.

The Tribunal held that the Philippines’ Submissions No. 3 through 7 concerned the status and maritime entitlements of Scarborough Shoal (Huangyan Dao) and eight other features, and did not concern sovereignty over the features (See Award, paras.169-172, 400-404). It put the cart before the horse and acted contrary to the UNCLOS, by determining that it had jurisdiction over the claims, with the sovereignty over the features undetermined.

First, the maritime entitlements generated by a maritime feature belong to the coastal State that has sovereignty over the feature, rather than the feature itself. The UNCLOS, in its regulations on the territorial sea, contiguous zone, exclusive economic zone and continental shelf, explicitly ties the maritime entitlements to the “coastal State” in respect of the maritime zones in question. For instance, regarding the territorial sea, “[t]he sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea” (UNCLOS, art.2(1), emphasis added). The contiguous zone is a zone “contiguous to its territorial sea” in which the “coastal State” may exercise the control with respect to customs, fiscal, immigration or sanitary matters (UNCLOS, art.33(1), emphasis added). The exclusive economic zone is an area “beyond and adjacent to the territorial sea”, in which the “coastal State” has sovereign rights and jurisdiction over certain matters (UNCLOS, arts.55, 56). And the continental shelf of a “coastal State” comprises “the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin” (UNCLOS, art.76(1), emphasis added). As written by Klein, an Australian international lawyer, “[maritime entitlements] are rights of sovereignty, of sovereign rights to the marine resources, and of jurisdiction over activities occurring in designated marine areas ... These entitlements belong to a state, a political entity, and have no relevance to a physical land mass” (Natalie Klein, “The Limitations of UNCLOS Part XV Dispute Settlement in Resolving South China Sea Disputes”, p.18,http://ssrn.com/abstract=2730411,last visited 8 June 2016). Therefore, when not under State territorial sovereignty, maritime features do not generate any maritime entitlement by themselves.

The wording of Article 121 of the UNCLOS regarding the regime of islands shows that whether an island or a rock can generate maritime entitlements is closely related to the “coastal State” it belongs to. Paragraph 1 of the Article provides a general definition of islands, and paragraph 2 provides that “the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory” (emphasis added). It follows that Article 121 shall be interpreted and applied in conjunction with other provisions of the UNCLOS regarding maritime entitlements, rather than in isolation. It also follows that for the determination of maritime entitlements generated by an island, as those generated by other land territories, the determination of the “coastal State” is the prerequisite. Treating rocks as a special category of islands, paragraph 3 of the Article stipulates that “[r]ocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf”, which indicates that such rocks shall have territorial sea and contiguous zone. To determine whether a maritime feature is a rock, one should examine whether it can sustain human habitation or economic life of its own, for which one should further examine the relation between the feature and the relevant State in terms of the population, society and economy. Therefore, to determine the maritime entitlements concerning its territorial sea and contiguous zone is also dependent on the ascertainment of its “coastal State”. The ascertainment of the “coastal State” in respect of relevant maritime features is the prerequisite for the determination whether they are “rocks” and what maritime entitlements they can generate. Maritime entitlements of features cannot and shall not be determined with their “coastal States” undetermined.

Second, the Philippines’ claims regarding the status and maritime entitlements of relevant features, before territorial sovereignty over them is determined, do not constitute “real” disputes. The Philippines argued that “[t]he maritime entitlement that feature may generate is ... a matter for objective determination”, and “the same feature could not be a ‘rock’ if it pertains to one State but an island capable of generating entitlement to an EEZ and continental shelf if it pertains to another”, therefore “sovereignty is wholly irrelevant” (Award, para.144). Again, the Arbitral Tribunal subscribes to the Philippines’ position that the claims do not concern sovereignty over maritime features, without any analysis on this point (See Award, para.153). If the questions whether a maritime feature, as an object of international law, is an “island”, “rock”, or “low-tide elevation” and whether it can generate an exclusive economic zone or continental shelf are considered in isolation from its holder’s sovereignty, there will be no “real” disputant party, as a subject of international law, and these questions can not constitute a “real” dispute. The Philippines thus lacks the legal standing to request arbitration on such a hypothetical question. It is obvious that in the context of the Nansha Islands where China and the Philippines have disputes on the territorial sovereignty over some maritime features, maritime entitlements shall not be considered in isolation from the sovereignty over relevant land territory.

Third, whether or not low-tide elevations can be appropriated is a question of territorial sovereignty in itself and beyond the scope of the UNCLOS. The Philippines in its Submission No. 4 requested the Arbitral Tribunal to declare that “Mischief Reef (Meiji Jiao), Second Thomas Shoal (Ren’ai Jiao) and Subi Reef (Zhubi Jiao) are low-tide elevations ... and are not features that are capable of appropriation by occupation or otherwise” (Award, para.101). In this connection, China pointed out clearly in its Position Paper that “whether or not low-tide elevations can be appropriated is plainly a question of territorial sovereignty” (Position Paper, para.23). The Tribunal concluded without reasoning that “[t]his is not a dispute concerning sovereignty over the features, notwithstanding any possible question concerning whether low-tide elevations may be subjected to a claim of territorial sovereignty” (Award, para.401). China expressly maintains that the above-mentioned maritime features are a part of its land territory, while the Philippines, by claiming them as part of its exclusive economic zone and continental shelf in its Submission No. 5, takes them as part of the seabed and subsoil. The Philippines does not recognize the nature of relevant maritime features as land territory. According to the UNCLOS, “a low-tide elevation is a naturally formed area of land which is surrounded by and above water at low tide but submerged at high tide” (UNCLOS, art.13(1), emphasis added). Regarding low-tide elevations as part of the seabed and subsoil of the exclusive economic zone and continental shelf is clearly inconsistent with the UNCLOS.

Low-tide elevations are distinct from islands. The UNCLOS is silent on the question whether low-tide elevations can be appropriated. But it is clear that land territory in international law includes both continental and insular land territory. Whether low-tide elevations can be appropriated concerns the question whether they have the qualification to constitute land territory, and further the question who is entitled to appropriate them. Both questions are issues concerning sovereignty over land territory and beyond the scope of the interpretation or application of the UNCLOS. In practice, the nature of low-tide elevations was addressed by the ICJ in 2001 in the Qatar v. Bahrain Case and in 2012 in the Nicaragua v. Colombia Case, but the Court made no reference to the UNCLOS (See e.g., Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, pp.101-102, paras.205-206; Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012, para.26). This also illustrates that the question whether low-tide elevations can be appropriated is beyond the scope of the UNCLOS. The Tribunal’s arbitrary decision to exercise jurisdiction over the issue whether Mischief Reef (Meiji Jiao), Second Thomas Shoal (Ren’ai Jiao) and Subi Reef (Zhubi Jiao) are capable of appropriation is thus groundless in law.

2. 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

In its application of the second criterion (see above), the Tribunal determines arbitrarily without any analysis that “[it] does not see that success on these Submissions would have an effect on the Philippines’ sovereignty claims”, and decides that the claims do not concern sovereignty (See Award, para.153). The fact is, however, that the Philippines’ claims are all directly aimed at denying China’s territorial sovereignty in the South China Sea, thus concern the issue of sovereignty.

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 day of the initiation of the Arbitration, the Philippine Department of Foreign Affairs released a Q&A on the arbitral proceedings (See “Statement of Secretary Albert del Rosario: On the UNCLOS Arbitral Proceedings against China to achieve a peaceful and durable solution to the dispute in the West Philippine Sea”, http://www.gov.ph/2013/01/22/dfa-guide-q-a-on-the-legal-track-of-the-unclos-arbitral-proceedings/, last visited 8 June 2016). It explicitly described the purpose of the case as “to protect our national territory and maritime domain” (Question 1) or “to defend the Philippine territory and maritime domain” (Question 3), declared not “surrendering our national sovereignty” (Question 15), and stressed that “[o]ur action is in defense of our national territory and maritime domain” (Question 26).

In the 2014 State of Nation Address (SONA) Technical Report, published by the Office of the President of the Philippines in July 2014, the development of the South China Sea Arbitration was presented under the title of “Protected Territorial Integrity through the Promotion of the Rule of Law” (See The Office of the President of the Philippines, “The 2014 SONA Technical Report”, pp.64-65, http://www.gov.ph/2014/07/28/2014-sona-technical-report/, last visited 8 June 2016). In the 2015 SONA Technical Report, published in July 2015, a summary of the further development of the Arbitration was placed under the title of “Protected our National Territory and Boundaries” (See The Office of the President of the Philippines, “The 2015 SONA Technical Report”, pp.61-62, http://www.gov.ph/downloads/2015/2015-SONA-TECHNICAL-REPORT.pdf, last visited 8 June 2016).

It is thus obvious that the real object of the Philippines in its initiation of the Arbitration is to legitimize its unlawful seizure and occupation of some of China’s maritime features in the Nansha Islands. That it “has not asked the Tribunal to rule on sovereignty” is nothing but an outright lie.

In hearing a case, an international judicial or arbitral body is obliged to examine all relevant official statements made by the parties in and outside the court or tribunal, to define accurately the real object of the claims. In the Nuclear Tests Cases, the ICJ stated in 1974 that “the Court must ascertain the true subject of the dispute, the object and purpose of the claim ... it must take into account the Application as a whole, the arguments of the Applicant before the Court, the diplomatic exchanges brought to the Court’s attention, and public statements made on behalf of the applicant Government” (Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p.263, para.30; See also, Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, p.467, para.31). This requirement was reiterated by the Court in 1995 when it examined the relevant situation of its 1974 Judgment (New Zealand v. France) at the request of New Zealand (See Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case, I.C.J. Reports 1995, p.304, para.56). In the present Arbitration, it is extremely abnormal of the Tribunal to turn a blind eye to the real object of the Philippines in its initiation of the Arbitration, so clearly stated in the materials presented above.

In addition, the Arbitral Tribunal fails to evaluate objectively the practical effect of its processing of the Philippines’ claims on China’s territorial sovereignty in the South China Sea. In the Award, the Tribunal expresses its intention to “ensure that its decision neither advances nor detracts from either Party’s claims to land sovereignty in the South China Sea” (Award, para.153). However, in practical terms its establishment of jurisdiction over and endorsement of the Philippines’ claims will inevitably detract China’s territorial sovereignty in the South China Sea.

China has always enjoyed sovereignty over the Nansha Islands as a whole. For instance, both the Declaration of the Government of the People’s Republic of China on the Territorial Sea of 1958 and the Law of the People’s Republic of China on the Territorial Sea and the Contiguous Zone of 1992 expressly provide that the territory of the People’s Republic of China includes, inter alia, the Dongsha Islands, the Xisha Islands, the Zhongsha Islands and the Nansha Islands. The Nansha Islands, which consists of a large number of maritime features, is included in China’s land territory as a whole. The islands, reefs, islets and shoals, as components of the Nansha Islands, are all part of China’s land territory. The Philippines, by claiming that features such as Mischief Reef (Meiji Jiao), Second Thomas Shoal (Ren’ai Jiao) and Subi Reef (Zhubi Jiao) are low-tide elevations and are incapable of appropriation, directly aims at challenging China’s territorial sovereignty over the 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.

The Tribunal’s possible support for the Philippines’ claims regarding the status and maritime entitlements of certain maritime features each as a separate single feature will likewise amount to, in practical terms, an attempt to deny China’s territorial sovereignty over the Nansha Islands as a whole. The Nansha Islands, taken as a whole, is capable of generating a territorial sea, exclusive economic zone and continental shelf. The purpose of the Philippines, in requesting the Tribunal to decide on the status and maritime entitlements of a small number of selected maritime features of China’s Nansha Islands, is to deny China’s maritime interests based on the Nansha Islands as a whole to further deny China’s territorial sovereignty over the Nansha Islands.