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Final award in sea arbitration will be flawed

Editor: Zhang Pengfei 丨China Daily

07-11-2016 08:03 BJT

Full coverage: The South China Sea Issue

On July 12, the tribunal in the South China Sea arbitration between the Republic of the Philippines and the People's Republic of China will issue its final award. China has made it clear from the outset that it will neither participate in nor accept the outcome of the arbitral proceedings because the subject matter of the arbitration is, in essence, "the extent of China's territorial sovereignty in the South China Sea" and, in particular, its "sovereignty over the Nansha (Spratly) Islands as a whole". The jurisdiction of the tribunal is, however, limited to disputes concerning the interpretation or application of the United Nations Convention on the Law of the Sea, and territorial sovereignty disputes are not governed by the convention.

The final award will build on the tribunal's award on jurisdiction and admissibility of Oct 29, 2015, in which the tribunal rejected China's objection that the disputes in the South China Sea are actually about territorial sovereignty and thus outside its jurisdiction. While the tribunal affirmed its jurisdiction, either outright or conditionally, only in seven of the Philippines' 15 final submissions (deferring the question of its jurisdiction with regard to the remainder to the final award), the tribunal ruled that the Philippines' submissions Nos 1 to 14 did not reflect a dispute concerning territorial sovereignty but constituted a legal dispute concerning the interpretation or application of UNCLOS.

With regard to submission No 15, the tribunal was unable to determine whether a dispute exists because the submission was unclear. The tribunal's award on jurisdiction and admissibility contains some serious flaws and is based on procedural irregularities which call into question the correctness of any final award.

The jurisdiction of the tribunal is not unlimited. The tribunal itself pointed out that the existence of a dispute with regard to each and every submission is "a threshold requirement" for the exercise of its jurisdiction and that such dispute must concern the interpretation or application of UNCLOS.

A dispute in international law is defined as "a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons". For a "conflict of legal views" to exist it is not sufficient that certain incidents occurred between the parties. Such incidents must rather have led the parties "to adopt clearly-defined legal positions as against each other", and the position of one party must be positively opposed by the other. It is for the tribunal to objectively establish the existence of a dispute.

Compared to the International Court of Justice, the tribunal adopted a rather loose standard when doing so. Of the 413 paragraphs of its award only 14 were devoted to the question of whether a dispute existed between the parties with regard to the Philippines' 15 submissions. The tribunal noted that China has "generally refrained from expressing a view on the status of particular maritime features" in the South China Sea.

It was therefore unable to establish a positive opposition by China with regard to the Philippines' claims concerning the status of nine individual maritime features in the Nansha Islands and the maritime entitlements they generate. Unable positively to establish a dispute between the parties over the status of these features, the tribunal set out to "infer" the existence of a dispute over the status of these features. Unlike the ICJ, which inferred the existence of a dispute from a state's silence or its failure to respond to a claim, the tribunal "constructed" artificial disputes over the status of these features in the face of, and contrary to China's explicit legal position.

China has made it clear on numerous occasions that the Nansha Islands are to be treated as a legal and geographical unit and that therefore the status and maritime entitlements of individual maritime features are not an issue. For example, in a note to the United Nations Secretary-General in 2011 China stated that the "Nansha Islands 'is' fully entitled to Territorial Sea, Exclusive Economic Zone and Continental Shelf". While China's claim to maritime entitlements thus relates to the Nansha Islands as a whole ("the Nansha Islands 'is' entitled"), the Philippines' claims relate to individual maritime features within the Nansha Islands.

In order to prove the existence of a dispute with regard to the status and maritime entitlements of individual maritime features, the Philippines referred the tribunal to China's 2011 note but quoted its text as stating that "China's Nansha Islands 'are' fully entitled to Territorial Sea, Exclusive Economic Zone and Continental Shelf". By misquoting the Chinese note-using the verb "are" instead of "is"-the Philippines misleadingly gave the impression of China claiming that "they", that is, the individual features, "are fully entitled" to maritime entitlements while China in fact claims that the Nansha Islands as a unit "is fully entitled" to maritime entitlements. In a move most damaging to its credibility, the tribunal accepted and adopted the Philippines' misrepresentation of China's position that the "Nansha Islands 'are' (instead of 'is') fully entitled" to maritime entitlements and, consequently, inferred a dispute on the status of individual maritime features in the Nansha Islands.

In addition, the tribunal accepted the existence of purely hypothetical disputes based on mere "assumptions". For example, outside the courtroom, the Philippines, like China, has claimed since at least the late 1970s territorial sovereignty over Scarborough Shoal (Huangyan Island in the Zhongsha Islands chain). Even while the proceedings were going on, the Philippines continued to claim Scarborough Shoal as "an integral part of the Philippine territory". Before the tribunal, however, the Philippines claimed the existence of a dispute between the parties over the Philippines' "traditional fishing rights" in a (Chinese) territorial sea around Scarborough Shoal. The tribunal adopted the Philippines' scenario and approached the claim on "the 'premise' ... that China is correct in its assertion of sovereignty over Scarborough Shoal". As the Philippines has always only claimed sovereignty and not traditional fishing rights, such a claim could not have been positively opposed by China.

In the absence of any inference, misrepresentation and assumption, the tribunal should have concluded that there was no legal dispute between the parties with respect to the Philippines' submission Nos 3, 4, 6, 7 and 10. Also, without a dispute there could not have been an exchange of views on the settlement by negotiation or other peaceful means of these (non-existing) disputes as required by Article 283 of UNCLOS.

The misrepresentation of China's position as a claim to maritime entitlements of certain maritime features in the South China Sea, rather than a claim to maritime entitlements of the island groups in the South China Sea as geographical units also allowed the tribunal to reject China's objection that the disputes are actually about territorial sovereignty. China, as well as the Philippines and Vietnam, have always claimed sovereignty over groups of islands in the South China Sea as geographical units. It is only for the proceedings that the Philippines has changed its position and artificially re-characterized the long-standing sovereignty disputes as disputes over the status and maritime entitlements of individual maritime features.

However, the status of individual maritime features and the legality of China's actions in the South China Sea depend upon the validity of China's claim to territorial sovereignty over the island groups in the South China Sea as a whole and the maritime entitlements of these island groups. If the tribunal had engaged with China's actual position it would have had to conclude that the "real dispute" in the case was about territorial sovereignty over these island groups and thus outside its jurisdiction. This is shown by the fact that almost all of the Philippines' claims would fall away if China's territorial sovereignty over the island groups as a whole were confirmed.

By ignoring China's claim to sovereignty over the island groups as a whole, the tribunal does not contribute to the resolution of the "real dispute" between the parties but entertains artificial disputes carefully construed by the Philippines to meet the jurisdictional requirements of UNCLOS. Against this background, the tribunal should have ruled that it does not have jurisdiction to entertain the Philippines' submission Nos 1, 2, 4, 5, 8, 9, and 12 (a) and (c).

In addition to these jurisdictional concerns, the tribunal demonstrated a striking lack of awareness of procedural standards. During the proceedings, it accepted new claims by the Philippines that were materially different from the claims set out in the Notification and Statement of Claim and, at least in part, transformed the subject matter of the dispute. It also pronounced on purely hypothetical disputes, and deferred inadequate submissions not specifying any particular dispute to the merits' stage of the proceedings. These are not just technicalities but go to the heart of the good administration of justice. In order to safeguard its judicial function and integrity the tribunal should have dismissed submissions Nos 11, 12 (b), 14 and 15 as inadmissible.

As the tribunal's findings on jurisdiction and admissibility will form the basis of its final award, these jurisdictional flaws and procedural defects will equally undermine the credibility and quality of the tribunal's final award and will provide China with good legal arguments to reject the tribunal's final award.

The author is a professor at the Institute of Public International Law, University of Bonn, Germany.

By STEFAN TALMON

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