Full coverage: South China Sea Is Indisputable Part of China

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.