Executive Summary: The Tribunal's Award in the "South China Sea Arbitration" Initiated by the Philippines Is Null and Void (3)

IV. The Tribunal disregards the fact that there exist between China and the Philippines agreements to settle the relevant disputes through negotiation, distorts Article 281 of the UNCLOS, and erroneously exercises jurisdiction over the claims

The Tribunal's exercise of jurisdiction over the Philippines' claims is subject to fulfillment of the terms in Article 281 of the Convention. This article provides that if the Parties have agreed to seek settlement of the dispute by a peaceful means of their own choice, the dispute settlement procedures provided for in the Convention apply only where no settlement has been reached by recourse to such means and the agreement between the parties does not exclude any further procedure.

Article 281 of the Convention employs the term "agreement" without prescribing any limitation on form. The terms of "have agreed to" and "agreement", as interpreted in accordance with their ordinary meaning pursuant to the customary rule of treaty interpretation as reflected in Article 31 of the 1969 Vienna Convention on the Law of Treaties, refer to the unanimous expression of intentions or consensus. They stress the act of consensus itself, rather than the form or vehicle which gives expression to the consensus.

A series of bilateral instruments issued jointly by China and the Philippines and the Declaration on the Conduct of Parties in the South China Sea ( "DOC" ) jointly signed by both States confirm the consensus of settling disputes in the South China Sea through negotiations, which constitute an agreement under Article 281 of the UNCLOS excluding any means of third-party dispute settlement procedure.

The Tribunal holds that neither the bilateral instruments nor the DOC constitute binding agreements between China and the Philippines, and proceeds on the basis to determine that there exists no agreement between the two States on the means of dispute settlement. This is a distortion of the term "agreement". Its approach runs counter to the ordinary meaning of the relevant provisions of the UNCLOS and its drafters' intention.

V. The Tribunal errs in finding that the Philippines had fulfilled the obligation to "exchange views" on the means of dispute settlement with regard to the claims it made

The Tribunal's exercise of jurisdiction over the Philippines' claims is also subject to the fulfillment of the precondition set in Article 283 of the Convention. This article requires that when a dispute arises between States Parties concerning the interpretation or application of the UNCLOS, the parties to the dispute shall proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means.

In the present Arbitration, the Tribunal confuses the subject-matters of the exchange of views, taking the consultations and exchange of notes verbales between China and the Philippines on the sovereignty over certain maritime features in the South China Sea as the evidence for the exchange of views with respect to disputes concerning the interpretation or application of the UNCLOS. The Tribunal relies on facts that occurred before the so-called "disputes" arose as the evidence of exchange of views on the "disputes" . It deliberately lowers the criteria for the fulfillment of the obligation to exchange views, thus rendering Article 283 of the UNCLOS practically meaningless.

VI. The Tribunal is neither objective nor impartial, and its Award deviates from the object and purpose of the dispute settlement mechanism of the UNCLOS and impairs the integrity and authority of the Convention

The UNCLOS is "a package-deal instrument". In the present Arbitration, the integrity of the UNCLOS is impaired by the Tribunal which interprets and applies the relevant provisions in such a manner that it isolates the issue of the status and maritime entitlements of certain features from the sovereignty over the features, and from maritime delimitation. The Tribunal applies double standards in the interpretation and application of the relevant rules, acts partially in determining the facts, and does not comply with internationally prevalent rules in the admission of evidence.

The Tribunal makes every effort to expand and misuse its power arbitrarily. The vicious precedent that it sets may open the "floodgate of abuse lawsuits" regarding maritime disputes, which will impair not only China' s vital and lawful rights and interests, but also the vital interests of States Parties in peaceful settlement of disputes under the UNCLOS, especially the right to freely choose the means of dispute settlement. Accordingly, it will damage the international legal order of the oceans and harm the overall interest of the international community.

The fundamental purpose of the dispute settlement mechanism under the UNCLOS is to contribute to the settlement of maritime disputes peacefully. Vital to the achievement of the above objectives is to interpret and apply the dispute settlement mechanism under the UNCLOS in good faith and in a comprehensive and integral manner, and to find the facts and admit the evidence in due diligence and in accordance with the law. In the present case, however, the Tribunal fails to fulfill the above requirements and acts ultra vires. As a result, the disagreements between China and the Philippines on relevant issues in the South China Sea have not been resolved but further intensified, and the tense situation in the South China Sea has not been alleviated but aggravated. These acts of the Tribunal run counter to the fundamental purpose of peaceful settlement of disputes of the UNCLOS.

In conclusion, the Tribunal's establishment of jurisdiction over the Philippines' claims is thoroughly erroneous. It is obvious that what the Tribunal has made is essentially a political decision. The Tribunal's exercise of jurisdiction ultra vires has been questioned by a large number of scholars of international law from China and abroad. Ex injuria jus non oritur. Any decision that the Tribunal may make on the substantive issues will not have any legal effect. Endi