South China Sea arbitration tribunal has no jurisdiction over Manila-started dispute

A tribunal established at the request of the Philippines is currently holding hearings at The Hague to examine its jurisdiction in the South China Sea Arbitration (the Philippines v. China).

Previously the Chinese government has declared its policy of not accepting or participating in the proceedings and published the Position Paper of the Government of the People's Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines on Dec 7, 2014 to elaborate its position that the Tribunal manifestly has no jurisdiction.

For a long time a dispute has existed between the Philippines and China in the South China Sea in respect of sovereignty over some islands and certain delimitation matters. The Philippines unilaterally initiated in 2013 compulsory arbitration against China on the basis of Part XV of the United Nations Convention on the Law of the Sea (UNCLOS). It "skilfully" fragments the dispute with China into various free-standing-appearing entitlement claims, which are pre-delimitation matters, and activities claims, which are post-delimitation matters, while steadfastly avoiding sovereignty and delimitation. Its Statement of Claim presents 10 claims in this fashion, trying to bring the dispute under the application and interpretation of UNCLOS. However "skillful", the Philippines' fragmentation magic cannot conceal the sovereignty-delimitation nature of the dispute.

Part XV of UNCLOS does address dispute settlement. It first permits State parties to freely choose any means of dispute settlement and/or exclude any. The Philippines and China through the combination of a series of bilateral declarations and the multilateral Declaration on the Conduct of Parties in the South China Sea have reached agreement on settling all their disputes in the South China Sea only through negotiations. For example, a 1995 joint statement proclaims that "a gradual and progressive process of cooperation shall be adopted with a view to eventually negotiating a settlement of the bilateral disputes". The phrase "eventually negotiating" clearly evinces the intent to choose only "negotiations" as the means of dispute settlement and to exclude all other means. As a result, the tribunal has no jurisdiction. In any event, the two States have not engaged in any negotiation on setting the dispute, the discussions being on situational management. Thus the jurisdictional condition for resorting to compulsory arbitration has not been met.

Part XV is not a general dispute settlement clause, but provides for settlement of only disputes concerning the interpretation or application of UNCLOS and Article 288(1) limits the jurisdiction of compulsory procedures to such disputes. As the Convention, its drafting history and international case law such as the Mauritius v. United Kingdom Arbitration make clear, disputes on land territorial sovereignty are not such disputes, and are not subject to UNCLOS.

Here the dispute presented by the Philippines constitutes, at its core, a land territorial sovereignty dispute. Many statements made by Philippine officials, heavily emphasizing territory and sovereignty, attest to this point. In any event, the resolution of the dispute would constitute a decision on the sovereignty over many islands or insular features, or necessarily involve the concurrent consideration of unsettled disputes concerning sovereignty or other rights over these islands or insular features including China's archipelagos and/or Taiping Dao (Itu Aba Island) or Zhongye Dao (Thitu Island), or depend on a decision on the sovereignty over them. A decision relating to any feature at issue would have the effect of chopping a chunk off Zhongsha Qundao (as far as Huangyan Dao is concerned) or Nansha Qundao (as far as other features are concerned) and deciding on the status of such a chunk in isolation. Further, such a decision would also have the effect of denying China's sovereignty over other islands from which China's entitlement projection extend over the features at issue.

Moreover, whether or not a submerged feature or low-tide elevation is subject to appropriation, irrespective of the answer thereto, is itself a territorial sovereignty question, beyond the jurisdiction of the tribunal. Furthermore, claims relating to the definition or status of certain "rocks" clearly relate to sovereignty over these insular land territory features. The definition or status of such a feature is part and parcel of the sovereignty over it. Only after sovereignty is determined can the entitlements based on such a feature be ascertained. As a result, the dispute is beyond the scope of Part XV and the jurisdiction of the tribunal.

In addition or alternatively, the Tribunal has no jurisdiction under Article 298(1)(a) of UNCLOS because the dispute or claims presented by the Philippines have been excluded by China's 2006 optional declaration filed under Article 298 or by the Philippines' own understanding filed upon signature and confirmed on ratification of UNCLOS. Under Article 298, a State party to UNCLOS may file a declaration to exclude from the jurisdiction of compulsory procedures all disputes concerning delimitation of the territorial, the EEZ or continental shelf or involving historic bays or titles or relating to some other specified matters such as military activities. In its 2006 declaration, China excludes all the disputes that can be excluded. Accordingly, if a claim relates to delimitation or historic bays or titles, it is outside the jurisdiction of the Tribunal. Obviously a dispute on a step in the delimitation operation is a delimitation-related dispute; a question whose resolution has a bearing on the process is also such a dispute.

The Philippines' claims fall within the optional exceptions contained in China's 2006 declaration, and thus are beyond the jurisdiction of the Tribunal. When defragmented, these claims constitute in essence one big dispute on the delimitation in the South China Sea between the Philippines and China. These claims either relate to (1) definition and status of certain features and their entitlement to maritime zones which are necessary first steps in or an inherent part of, not to mention "relating to" or "concerning", a delimitation process or (2) rights and activities consequential upon delimitation.

Some of the Philippines' Claims involving the Nansha Islands and reefs stationed by China are closely related to or consequential on the status of those islands and reefs, embodying delimitation questions, or these features should be considered as part of Nansha Qundao as a unit for entitlement and delimitation purposes. Or, even if we proceed on the logic of the Philippines, each is within 200 nautical miles from another Chinese island or one claimed by China, thus giving rise to overlapping entitlements over each feature's associated areas, with each scenario necessitating delimitation. This applies similarly to the Philippines' Claims concerning Huangyan Dao (Scarborough Shoal), part of Zhongsha Qundao. Some Claims regarding or consequential on the status of the "nine dash line" constitute claims relating to delimitation or involving historic title or historic rights, since that line potentially serves as title and/or relevant circumstances in a delimitation operation.

If the above-mentioned Philippine understanding presents optional exceptions regarding sovereignty-related disputes or disputes whose resolution adversely affects its sovereignty, the Tribunal has no jurisdiction over the dispute or such sovereignty-related claims.

Finally, recent mass media reports highlight a military component of some of China's activities on the features at issue. Such activities fall within the military activities exception.

In light of the above analysis, it is clear that the Tribunal has no jurisdiction over the dispute. The Philippines would be well advised to channel its resources to other areas and its energy to negotiations with China with a view to settling the dispute.

The author is Changjiang Professor of International Law at Wuhan University's China Institute of Boundary and Ocean Studies, a member of the Institut de droit international as well as of the Bar of the US Supreme Court. This comment is based on his article, "The South China Sea Arbitration (The Philippines v. China): Potential Jurisdictional Obstacles or Objections", 13 Chinese Journal of International Law (2014), 663-739.