III. The Arbitral Tribunal disregards the fact that there exists an issue of maritime delimitation between China and the Philippines, distorts Article 298 of the UNCLOS, and acts ultra vires to exercise jurisdiction over claims concerning maritime delimitation
Even assuming, arguendo, the Philippines’ claims constitute disputes between China and the Philippines concerning the interpretation or application of the UNCLOS, the Tribunal still may not exercise its jurisdiction over the disputes, as the resolution of these disputes forms an integral part of the maritime delimitation between China and the Philippines and they have been excluded from the applicability of compulsory procedures, including arbitration, by China’s 2006 Declaration made under Article 298 of the Convention.
Pursuant to Article 298 of the UNCLOS, a State Party may declare in writing that it does not accept any one or more of the procedures provided for in Section 2, Part XV of the Convention, including arbitration, with respect to disputes concerning the interpretation or application of Articles 15, 74 and 83 relating to sea boundary delimitation (Article 298(1)(a)), disputes involving historic bays or titles (Article 298(1)(a)), disputes concerning military activities or law enforcement activities (Article 298(1)(b)), and disputes in respect of which the Security Council is exercising the functions assigned to it by the Charter of the United Nations (“the UN Charter”) (Article 298(1)(c)). The exceptions made pursuant to Article 298 are opposable to other States Parties. In other words, other States Parties may not initiate compulsory procedures against a State Party with respect to the above subject-matters which it has excluded by declaration, and the Tribunal has no jurisdiction over them. In 2006, China declared that “[t]he Government of the People’s Republic of China does not accept any of the procedures provided for in Section 2 of Part XV of the Convention with respect to all the categories of disputes referred to in paragraph 1 (a) (b) and (c) of Article 298 of the Convention”, which clearly excludes disputes concerning maritime delimitation and other subject-matters from the applicability of compulsory procedures.
With a view to circumventing the jurisdictional hurdle posed by China’s 2006 Declaration and to justifying its jurisdiction over relevant claims made by the Philippines, the Arbitral Tribunal disregards the fact that between China and the Philippines there exists an issue of maritime delimitation, and narrows the interpretation of the term “disputes concerning or relating to sea boundary delimitation” in Article 298 down to “disputes over maritime boundary delimitation itself”. Such moves are groundless in fact or law.
1. The Arbitral Tribunal ignores the fact that between China and the Philippines there exists an issue of maritime delimitation
China pointed out in its Position Paper that “[t]here exists an issue of maritime delimitation between the two States. Given that disputes between China and the Philippines relating to territorial sovereignty over relevant maritime features remain unresolved, the two States have yet to start negotiations on maritime delimitation. They have, however, commenced cooperation to pave the way for an eventual delimitation” (Position Paper, para.59). In its Award, the Tribunal deliberately ignores this fact, and finds that the Philippines’ claims do not concern maritime delimitation between the two States (See Award, paras.156-157).
As a matter of fact, there exist between China and the Philippines a delimitation geographical framework and overlapping claims of maritime entitlements. None of the nine features in the South China Sea that are concerned in the Philippines’ Submissions is over 400 nautical miles from the baseline of the Philippine archipelago, with Huangyan Dao (Scarborough Shoal) of the Zhongsha Islands less than 200 NM; Zhubi Jiao (Subi Reef), Huayang Jiao (Cuarteron Reef) and Yongshu Jiao (Fiery Cross Reef) of the Nansha Islands between 230 and 260 NM; other features less than 200 NM. As China has been all long taking the Zhongsha Islands and the Nansha Islands as a unitary whole, respectively, to claim territorial sea, exclusive economic zone and continental shelf, while the Philippines has been claiming such rights based on its coast, there is obviously an issue of maritime delimitation between the two States. As far as the relevant claims of the Philippines are concerned, particularly in the specific context of geographical framework of the South China Sea and overlapping claims of maritime rights between the two States, any determination of the status and maritime entitlements of features will have an inevitable effect on the future delimitation between China and the Philippines. Therefore, the Philippines’ claims regarding the status and maritime entitlements of features constitute an integral part of maritime delimitation between China and the Philippines and have been excluded from compulsory procedures by China via its 2006 Declaration.
An examination of the Philippines’ claims also reveals that the relevant Submissions reflect a dispute concerning maritime delimitation. For instance, by requesting the Tribunal to determine that Mischief Reef (Meiji Jiao) and Second Thomas Shoal ( Ren’ai Jiao) are part of its exclusive economic zone and continental shelf and that certain Chinese activities unlawfully interfered with its enjoyment and exercise of sovereign rights in its exclusive economic zone, the Philippines was asking the Tribunal to declare that the relevant maritime zones were part of its exclusive economic zone and continental shelf and it enjoyed sovereign rights and jurisdiction in the zones. This is a request for maritime delimitation in disguise. The Philippines’ claims practically comprise the major steps and principal issues of maritime delimitation. If the Tribunal decides on the claims at the merits stage, it will amount to conducting maritime delimitation indirectly.
2. The Arbitral Tribunal’s interpretation of “disputes concerning/relating to sea boundary delimitation” as “disputes over maritime boundary delimitation itself” is not consistent with international law and practice
First, the Tribunal is of the view that a dispute concerning the existence of an entitlement to maritime zones is distinct and independent from a dispute concerning the delimitation of those zones, and that by its 2006 Declaration China only excludes disputes over maritime boundary delimitation itself from compulsory procedures. The Tribunal’s interpretation of relevant terms in Article 298 of the UNCLOS, however, does not conform to their ordinary meaning. The meaning of the terms “concerning” and “relating to” is essential to properly understand the scope of disputes concerning maritime boundary delimitation under Article 298(1)(a)(i). According to the rule of customary international law that treaty provisions shall be interpreted in accordance with the ordinary meaning of its terms, as reflected in Article 31(1) of the Vienna Convention on the Law of Treaties, the terms “relating to” and “concerning” used in Article 298(1)(a)(i) indicate that “disputes concerning sea boundary delimitation” include but are not limited to “disputes over maritime boundary delimitation itself”. This interpretation finds the support in international jurisprudence.
In expounding the term of “concerning” (arrest or detention of vessels) in the M/V “Louisa” Case, the ITLOS held in 2013 that “the use of the term ‘concerning’ in the declaration indicates that the declaration does not extend only to articles which expressly contain the word ‘arrest’ or ‘detention’ but to any provision of the Convention having a bearing on the arrest or detention of vessels” (The M/V “Louisa” Case (Saint Vincent and the Grenadines v. Kingdom of Spain), ITLOS Case No.18, Judgment of 28 May 2013, p.28, para.83). Similarly, in analyzing the scope of disputes “relating to the territorial status” in the Aegean Sea Continental Shelf Case, the ICJ held in 1978 that “[t]he question for decision in whether the present dispute is one ‘relating to the territorial status of Greece’, not whether the rights in dispute are legally to be considered as ‘territorial’ rights; and a dispute regarding entitlement to and delimitation of areas of continental shelf tends by its very nature to be one relating to territorial status”. (Aegean Sea Continental Shelf (Greece v. Turkey), Jurisdiction of the Court, Judgment of 19 December 1978, I.C.J. Reports 1978, p.36, para.86, emphasis added). It follows from the above judicial practice that if the determination of the status of maritime features has potential effect on the delimitation of territorial sea, exclusive economic zone or continental shelf (UNCLOS, arts.15, 74, 83), it should be regarded as falling within the scope of “disputes concerning sea boundary delimitation” in Article 298 (See Sienho Yee, “The South China Sea Arbitration (The Philippines v. China): Potential Jurisdictional Obstacles or Objections”, 13 Chinese Journal of International Law (2014), pp.711-717, paras.65-76).
Second, the Tribunal’s interpretation is inconsistent with the drafters’ intention in the negotiation of Article 298 of the UNCLOS to limit the application of compulsory procedures. In order to safeguard the right of States to settle disputes through means of their choice and to attract universal participation, the UNCLOS contains a series of limitations and exceptions to the applicability of compulsory procedures, including the optional exception of disputes concerning or relating to sea boundary delimitation allowed by Article 298(1). The travaux préparatoires of Article 298 shows that there were disagreements among negotiating States upon the scope of subject-matters that could be excluded from compulsory procedures. The original “1974 formula” suggested that the scope of exclusion might be confined to the actual process of delimitation, i.e. drawing a line on a map; The “1979 formula” which was adopted eventually is much wider in terms of the scope of exclusion, encompassing any preliminary issues such as the determination of maritime entitlements (See Chris Whomersley, “The South China Sea: The Award of the Tribunal in the Case Brought by Philippines against China - A Critique”, 15 Chinese Journal of International Law (2016), para.24). Thus it is apparent that the drafters’ intention is to constrain the application of compulsory procedures. In the present Arbitration, the Tribunal’s misinterpretation of the “optional exceptions” clause in an attempt to expand the scope of the compulsory procedures is inconsistent with the intention of drafters of Article 298.
Third, that the status and entitlements of maritime features form an integral part of maritime delimitation is not only widely supported by international practice, but also widely accepted among international publicists.
Disputes concerning or relating to sea boundary delimitation under Article 298 of the UNCLOS is a broad term. China pointed out in its Position Paper that “[m]aritime delimitation is an integral, systematic process” (Position Paper, para.67). Maritime delimitation is not a single-step operation of drawing a maritime boundary line. It also includes pre-steps and elements indispensable thereto, including the determination of the status and maritime entitlements of maritime features, principles and methods of delimitation, and all relevant elements that need to be taken into consideration to achieve equitable solutions. And as written by Nuno Marques Antunes, a Portuguese expert of international law, “[maritime] [d]elimitation stems from entitlement; it is founded on it” (Nuno Marques Antunes, Towards the Conceptualisation of Maritime Delimitation: Legal and Technical Aspects of a Political Process, Durham theses, Durham University, 2002, p.139,http://etheses.dur.ac.uk/4186/, last visited 8 June 2016).
China also argued in clear terms that “such legal issues as those presented by the Philippines in the present arbitration, including maritime claims, the legal nature of maritime features, the extent of relevant maritime rights, and law enforcement activities at sea, are all fundamental issues dealt with in past cases of maritime delimitation decided by international judicial or arbitral bodies and in State practice concerning maritime delimitation. In short, those issues are part and parcel of maritime delimitation” (Position Paper, para.66).
The Tribunal’s narrow interpretation of disputes concerning or relating to sea boundary delimitation is also inconsistent with international practice of maritime delimitation. The intimate connection between the status of maritime features and maritime delimitation was confirmed by the ICJ, for instance, in the Territorial and Maritime Dispute Case between Nicaragua and Colombia. In practice, the status of maritime features and maritime entitlements form an integral part of maritime delimitation. In the present Arbitration, the Philippines’ claims concerning China’s maritime rights in the South China Sea and the extent of the rights include pre-steps and elements indispensable to the further maritime delimitation between China and the Philippines, hence within the scope of disputes concerning or relating to sea boundary delimitation under Article 298 of the UNCLOS.
Furthermore, at least two arbitrators sitting in the present Arbitration expressed in their past publications the view that the determination of the status and maritime entitlements of maritime features and maritime delimitation shall not be dealt with separately. Mr. Alfred H.A. Soons, for instance, wrote with a co-author on the relationship between the two issues on at least two occasions. As early as in 1990, well before the UNCLOS entered into force, he and his co-author pointed out that “the definition of rocks and their entitlement to maritime spaces, like the definition and entitlement of islands in general, forms an inherent part of maritime boundary delimitation between opposite/adjacent States and, as State practice clearly evidences, these issues will not give rise to controversies unless such delimitation is in dispute” (Barbara Kwiatkowska and Alfred H.A. Soons, “Entitlement to Maritime Areas of Rocks Which Cannot Sustain Human Habitation or Economic Life of Their Own”, 21 Netherlands Yearbook of International Law (1990), p.181). In 2011, he wrote again with the same co-author that “[i]n fact, with a single exception of Okinotorishima, the issues of eventual application of Article 121(3) does not arise in practice unless in the context of specific maritime delimitations, often intertwined with disputes over sovereignty” (Barbara Kwiatkowska and Alfred H.A. Soons, “Some Reflections on the Ever Puzzling Rocks - Principle Under UNCLOS Article 121(3)”, The Global Community: Yearbook of International Law and Jurisprudence (2011), p.114). Mr. Soons has been maintaining expressly and consistently over 20 years that disputes concerning the status and maritime entitlements of features shall not be addressed in isolation in practice, but form an indispensable part of maritime delimitation.
Mr. Jean-Pierre Cot, another arbitrator in the present Arbitration, wrote in 2012 that while the definition of entitlement of a coastal State and the delimitation between opposing claims are distinct, the two operations are interrelated (See Jean-Pierre Cot, “The Dual Function of Base Points”, in Holger Hestermeyer, et al. (eds.), Coexistence, Cooperation and Solidarity: Liber Amicorum Rüdiger Wolfrum (Martinus Nijhoff, 2012), pp.820-824).
In the present Arbitration, the above two arbitrators supported a decision that is contrary to their long-standing position, without providing any reasons for their dramatic change of position. It renders their impartiality questionable.
Therefore, the legal status and maritime entitlements of relevant features are matters concerning or relating to sea boundary delimitation, and constitute an integral part of maritime delimitation. The Tribunal disregards the fact that there exists an issue of maritime delimitation between China and the Philippines, and decides to consider disputes regarding the status and maritime entitlements of features in isolation from maritime delimitation, which is contrary to the provisions and spirit of the UNCLOS. No such precedent exists in international practice. Its finding of jurisdiction over such submissions concerning maritime delimitation between China and the Philippines is thus thoroughly erroneous.