Final award in sea arbitration will be flawed

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.