Research Group for the South China Sea Arbitration
China Law Society
In its unilaterally initiated South China Sea arbitration, the Philippines requests the Arbitral Tribunal to declare, inter alia, the nature and maritime entitlements of only what it describes as maritime features “occupied or controlled by China”. The Philippines argues that China’s claim to entitlements of 200 nautical miles and more, based on certain rocks, low-tide elevations and submerged features in the South China Sea, is inconsistent with the United Nations Convention on the Law of the Sea (hereinafter “Convention”). This research report seeks to make a preliminary study on the Philippines’ submissions on the legal status of the maritime features, with respect to the Philippines’ claims and the Tribunal’s Award on Jurisdiction and Admissibility.
This research report considers that the essence of the Philippines’ submissions on the legal status of the maritime features in the arbitral proceedings relates to territorial sovereignty and maritime delimitation. The former is beyond the scope of the Convention and does not concern the interpretation or application of the Convention. The latter falls within the scope of the declaration filed by China in 2006 pursuant to Article 298 of the Convention. Both exclude the applicability of the compulsory dispute settlement procedures of the Convention, including compulsory arbitration.
This research report considers that the Philippines misrepresents both in fact and law, in an attempt (i) to circumvent the twofold jurisdictional hurdle concerning territorial sovereignty and maritime delimitation in the phrase of the jurisdiction and admissibility; and (ii) to dissect China’s Nansha Islands and Zhongsha Islands and minimize their maritime entitlements, and thus to maximize the Philippines’ own claims in the merits phrase. The Philippines’ claims are mainly built upon indirect evidences that are either factually doubtful or legally irrelevant.
This research report considers that the Tribunal’s Award on Jurisdiction and Admissibility is flawed both in the fact-finding and legal reasoning. The Tribunal fails to pierce the veil of the Philippines’ cunningly packaged submissions on the legal status of the maritime features, but endorses the Philippines’ circumvention of the jurisdictional hurdle. The Tribunal has deviated itself from the justice and prudence, which is fundamental for the third-party procedures. In light of the manifest lack of jurisdiction and biased position on the part of the Tribunal, its awards, both that on jurisdiction and admissibility and that forthcoming on merits, are nothing but ultra vires.
This research report considers that the South China Sea arbitration will not assist the resolving of the real disputes between China and the Philippines; nor will it contribute to the clarification of the provisions of the Convention. Instead, it would result in the fragmentation of awards, and undermine the international legal order for the seas and oceans including the Convention.