Judicial flaws in South China Sea dispute

The South China Sea (SCS) dispute involves island and maritime claims among several sovereign states within the region, namely Brunei, the People’s Republic of China (PRC), Malaysia, the Philippines, and Vietnam. The disagreement revolves around the Spratly and the Paracel islands as well as maritime boundaries in the Gulf of Tonkin and elsewhere. There is a further dispute in the waters near the Natuna Islands close to Indonesia. The interests of different nations include acquiring fishing areas around the two archipelagos; the potential exploitation of expected crude oil and natural gas under the waters of various parts of the SCS; and the strategic control of important shipping lanes.

An Arbitral Tribunal established at the request of the Philippines, on October 29, 2015, released its ruling on jurisdiction and admissibility of the SCS Arbitration. Seven out of the 15 Philippines’ submissions passed both thresholds of admissibility and jurisdiction, and are being examined in the trial on their merits. Independent experts have discerned judicial flaws in the jurisdictional ruling on all of Philippines’ submissions.

Submission 1-2 contend that “China’s maritime entitlements in the SCS, like those of the Philippines, may not extend beyond those permitted by the United Nations Convention on the Law of the Sea (UNCLOS)”; and that “China’s claims to sovereign rights and jurisdiction, and to ‘historic rights’, with respect to the maritime areas of the SCS encompassed by the so-called ‘nine-dash line’ are contrary to UNCLOS and without lawful effect to the extent that they exceed the geographic and substantive limits of PRC’s maritime entitlements under UNCLOS.”These Submissions intend to reflect a dispute concerning China’s claim of “historical rights” to justify its extra-UNCLOS maritime claim within the nine-dash line. The Award considers these Submissions reflecting a dispute concerning the interpretation or application of UNCLOS, but not concerning sovereignty and sea boundary delimitation.

The Award said that a dispute “exists” on China’s maritime claim within the Dotted Line based on China’s historical rights in SCS. Paragraphs 164-168 indicate the evidence from 2009-2011 Sino-Philippine exchange of Note Verbales (NV). This conclusion is wrong.

Submissions 3, 4, 6, and 7 address the legal status of seven Chinese mainland-stationed islands and reefs of the Nansha Islands and Huangyan Dao. Philippines claims Chigua Jiao, Huayang Jiao and Yongshu Jiao as rocks under Article 121(3) of UN Convention on the Law of the Sea (UNCLOS) that generate no EEZ or Continental Shelf (CS). Meiji Jiao, Zhubi Jiao, Nanxun Jiao and Ximen Jiao (including Dongmen Jiao) are considered low-tide elevations (LTEs), generating no territorial sea (TS), EEZ or CS, while being incapable of appropriation by occupation or otherwise.

The jurisdictional award considers these submissions to reflect Sino-Philippine disputes. In other words, the Tribunal must have obtained evidence to prove that (1) PRC has been opposing the Philippines’ position by claiming that Chigua Jiao, Huayang Jiao, Yongshu Jiao and Huangyan Dao are non-rock island, capable of generating an EEZ or CS; (2) PRC must have claimed that Meiji Jiao, Zhubi Jiao, Nanxun Jiao and Ximen Jiao (including Dongmen Jiao) are taller than LTEs and capable of generating TS, EEZ or CS, while being capable of appropriation by occupation or otherwise.

The fact is that PRC has never made this claim. The Philippines’ official statements have negated its own submissions. The jurisdictional award relies on the 2009-2011 Sino-Philippine exchange of Note Verbales (NV) to demonstrate the disputes reflected by these four submissions, as follows.

On May 7th, 2009 PRC sent two NVs to the UN to protest against two submissions to the Commission on the Limits of the Continental Shelf (CLCS) by Vietnam and Malaysia concerning two particular areas, as extended CS beyond 200 nautical miles claimed by them in the SCS. In the NVs, PRC reiterated its sovereignty over the SCS islands and the adjacent waters thereto. PRC also reiterated sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof.

Interestingly, the Philippines lodged its NV dated on 5 April 2011 to rebut PRC’s 2009 NV that the Kalayaan Island Group (KIG) constitutes an integral part of the Philippines, which has sovereignty and jurisdiction over the geological features therein. Additionally, based on the “land dominates the sea” principle, the Philippines exercises sovereignty and jurisdiction over the water around or adjacent to each relevant KIG geological feature according to UNCLOS. Also, since the adjacent waters of the relevant KIG geological features are definite according to UNCLOS, PRC’s “relevant water claim” outside of the relevant KIG geological features and their adjacent waters has no legal basis.

With respect to these areas, sovereignty and jurisdiction or sovereign rights, as the case may be, necessarily belong to the appropriate coastal or archipelagic state – the Philippines – to which these bodies of waters as well as seabed and subsoil are appurtenant, either in the nature of TS, EEZ, or CS.

To oppose the 2011 Philippines’ NV, PRC filed another NV on April 14th, 2011 to the UN outlining the following positions. Firstly, PRC repeated its 2009 NV by claiming sovereignty over the SCS islands. Although claimed by the Philippines’ 2011 NV as its territories, KIG is part of PRC’s Nansha Islands.

The Tribunal invoked the above NVs to demonstrate the existence of disputes reflected by the four Philippines’ submissions. However, PRC’s 2011 NV invokes Nansha Islands as a single unit to claim TS, EEZ and CS, instead of identifying any maritime features within as bases. It’s no wonder people found no evidence to show the existence of disputes as reflected by these submissions.

In this arbitration the Philippines argues that none of the geological features in the Nansha Islands, including KIG, qualify as islands capable of generating EEZ and CS. This goes against the Philippines’ 2011 NV. In paragraph 165 of the jurisdiction award, the Tribunal omits the first message of the Philippines’ NV. It facilitates a misinterpretation of the entire Philippine positions under that NV.

Submissions 8-9 argue that “China has unlawfully interfered with the enjoyment and exercise of the sovereign rights of the Philippines with respect to the living and non-living resources of its EEZ and continental shelf (CS);” and that “China has unlawfully failed to prevent its nationals and vessels from exploiting the living resources in the EEZ of the Philippines.” The premise is that PRC has no EEZ and CS in the SCS, rendering all PRC’s exploration, exploitation, conservation, and management activities there illegal.

Submission 10-11 and 13 claim that PRC has unlawfully prevented Filipino fishermen from pursuing their livelihoods by interfering with traditional fishing activities at Huangyan Island, that PRC has violated its obligations under UNCLOS to protect and preserve the marine environment at Huangyan Island and Ren’ai Jiao, and that PRC has breached its obligation under UNCLOS by operating its law enforcement vessels in a dangerous manner causing serious risk of collision to Philippine vessels navigating in the vicinity of Huangyan Island.

The Philippines’ Submission 12 provides that PRC’s occupation of and construction activities on Meiji Jiao: “(a) violate the provisions of UNCLOS concerning artificial islands, installations, and structures; (b) violate PRC’s duties to protect and preserve the marine environment under the Convention; and (c) constitute unlawful act of attempted appropriation in violation of the Convention.” Submission 14 claims that “Since the commencement of this arbitration in January 2013, PRC has unlawfully aggravated and extended the dispute by, among other things: (a) interfering with the Philippines’ rights of navigation in the waters at, and adjacent to, Ren’ai Jiao; (b) preventing the rotation and resupply of Philippine personnel stationed at Ren’ai Jiao; and (c) endangering the health and well-being of Philippine personnel stationed at Ren’ai Jiao.” Considering these Submissions as not concerning sovereignty or maritime boundary delimitation, Paragraph 409 and 411 of Award moved them to the merits phase unconvincingly.

Besides, Sino-Philippine sovereignty disputes over these two islands and reefs lie behind these confrontations. As claimed by the first but erased message of the Philippines’ 2011 NV to the UN, “the Republic of the Philippines has sovereignty and jurisdiction over the geological features in the ‘KIG’.” For PRC, the two name lists of SCS islands published in 1935 and 1947, inter alia, have identified Meiji Jiao and Ren’ai Jiao as islands and reefs claimed by PRC. In this context, the objective of Submissions 12 and 14 is to deny PRC’s territorial claim and to safeguard the Philippines’ territorial claim over these two islands and reefs, through ending PRC’s presence and construction in Meiji Jiao and getting rid of PRC’s “interference” in the rotation of and supply for the Philippines’ military personnel on Ren’ai Jiao. It is hard to understand why the Tribunal ignores such facts is bent on providing faulty rulings.