Chinese Society of the Law of the Sea issues statement on South China Sea arbitration initiated by the Philippines

The Chinese Society of the Law of the Sea has issued a statement on the South China Sea arbitration initiated by the Philippines. Following is the English version of the statement:

Chinese Society of the Law of the Sea

Statement on the South China Sea Arbitration

Unilaterally Initiated by the Republic of the Philippines

On January 22, 2013, the Philippines initiated the compulsory arbitration procedures by invoking the provisions of Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS). On October 29, 2015, the Arbitral Tribunal rendered an award on jurisdiction and admissibility and stated that it had jurisdiction over seven of the Philippines' submissions and reserved consideration of its jurisdiction over the remaining eight submissions to the merits phase. As a national academic organization in the law of the sea field, the Chinese Society of the Law of the Sea has been deeply shocked by the Arbitral Tribunal's acts of pushing forward the arbitration and making the award, and is concerned about the negative impact that the award may have on the international maritime rule of law. In this context, we are duty-bound to make the following statement to set the record straight.

1. The Arbitral Tribunal disregarded basic facts and lopsidedly accepted the Philippines' evidence.

Disregarding the historical background that the Philippines had violated China's territorial sovereignty and consequently caused other maritime disputes between China and the Philippines, the Arbitral Tribunal erroneously ruled that the Philippines' submissions did not fall within the scope of sovereignty dispute. Ignoring the basic fact that China has always treated the Nansha Islands as a whole when claiming sovereignty and maritime rights over it, the Arbitral Tribunal obstinately ruled on the legal status and maritime rights of individual islands and reefs selected by the Philippines. Turning a blind eye to the Philippines' breach of the agreement reached by China and the Philippines to settle maritime disputes through negotiation, the Arbitral Tribunal expanded its power and scope on jurisdiction. Without conducting due investigation and verification, the Arbitral Tribunal accepted the one-sided statements and evidence of the Philippines, which led to substantive errors in its determination of facts. Any final award made on this basis will be neither convincing nor impartial or valid.

2. The Arbitral Tribunal obviously erred in its interpretation and application of law, which erodes the authority and integrity of UNCLOS.

Firstly, the Philippines' submissions are in essence about territorial sovereignty, and by acting beyond the scope of its jurisdiction, the Arbitral Tribunal violates international law. Determining the territorial sovereignty over Huangyan Dao and some islands and reefs of the Nansha Islands is the foundation and prerequisite for dealing with the Philippines' submissions. This not only reflects the principle of "land dominates the sea" but also conforms to provisions of UNCLOS on maritime rights. When isolated from state sovereignty, islands and reefs themselves shall have no maritime rights. The Philippines' submissions are either premised on territorial sovereignty or may have major effects on territorial sovereignty. They are essentially disputes over territorial sovereignty, which are neither regulated by UNCLOS nor applicable to its compulsory arbitration procedures. The Arbitral Tribunal therefore has no jurisdiction over the case.

Secondly, the Philippines' submissions concern matters excluded by China's 2006 optional exceptions declaration, and the Arbitral Tribunal has no right to deal with them. The matters that China excluded from the compulsory procedures pursuant to Article 298 of UNCLOS include "disputes related to maritime delimitation". This includes not only the final delimitation of maritime boundaries but also various factors that should be considered in boundary delimitation process, such as the legal status and maritime rights of relevant islands and reefs. But the Arbitral Tribunal misinterpreted "disputes related to maritime delimitation" as "disputes of maritime delimitation itself", which greatly narrows the range of excluded matters and runs counter to the meaning of Article 298 of UNCLOS. Such acts, circumventing China's optional exceptions declaration by means of changing the concepts, go against the real purpose of the UNCLOS compulsory dispute settlement procedures, harm the integrity and stability of the dispute settlement mechanism established by UNCLOS, and will have a huge negative impact on the international maritime law order based on UNCLOS.

3. The Arbitral Tribunal deprived the parties to the disputes of their right to settle the disputes over maritime delimitation through agreement.

Given the fact that China and the Philippines have opposite coasts, the distance between which is less than 400 nautical miles, an overlap exists between their 200 nautical mile exclusive economic zones and continental shelves. Besides, their potential rights to claim continental shelf beyond 200 nautical miles also overlap. All this makes maritime delimitation necessary. Articles 15, 74 and 83 of UNCLOS concerning maritime delimitation all stress that the parties to a dispute over boundary delimitation should first settle the dispute by agreement, and grant them the right to negotiate for the final settlement of the dispute at their own will; only when the parties cannot settle the dispute themselves and have not excluded third-party mechanisms can they resort to the compulsory dispute settlement procedures.

Maritime delimitation is a systematic project, and it is an intrinsic, integral part of maritime delimitation to determine the legal status and maritime rights of relevant islands and reefs. This is a general practice in international law and has been acknowledged by authoritative scholars of international law and even by an arbitrator of this case. Arbitrator Alfred H. A. Soons expressed his opinion publicly twice on the relationship between the status and maritime rights of islands and reefs and maritime delimitation, noting that when two countries have overlapping waters, issues about the legal status and maritime rights of islands and reefs cannot be separated from the maritime delimitation dispute between the two countries, and they form an integral part of maritime delimitation. The Arbitral Tribunal, in disregard of China's optional exceptions declaration, insisted on handling - before possible negotiations between China and the Philippines - the issue of legal status of the relevant islands and reefs involved in maritime delimitation between the two countries. This was a direct intervention in settlement of the maritime delimitation dispute between China and the Philippines and actually deprived them of the right to negotiate and reach agreement.

To sum up, the Arbitral Tribunal's award on jurisdiction and admissibility is obviously flawed and hence has no legal effect. In determining the facts, the Arbitral Tribunal failed to fully fulfill its obligation of careful investigation of facts; in interpretation and application of law, it deliberately cut apart the intrinsic relationship between maritime rights of islands and reefs and the matter of territorial sovereignty and maritime delimitation, overstepped its authority to handle matters that are in essence about territorial sovereignty over islands and reefs and about maritime delimitation, maliciously got around China's optional exceptions declaration, and willfully expanded its scope of jurisdiction. The Arbitral Tribunal's behavior, reckless and arbitrary, has eroded the integrity and authority of UNCLOS rather than settling a dispute over its interpretation and application. This is detrimental to the stability and development of the international maritime law order, and even worse, would open a door for abuse of litigation and trigger more disputes. The Chinese Society of the Law of the Sea stands firmly in support of the Chinese government's position of neither accepting nor recognizing the above-mentioned unjust and unreasonable award that violates international law, and in defense of the sovereignty, territorial integrity and maritime rights of China. Endi