The South China Sea Arbitration Awards: A Critical Study

Table of Contents

• Page
• Abbreviations  215
• Glossary of Geographic Names  216
• Paragraphs
• Introduction  1–7
• Chapter One: Background to and Course of the South China Sea Arbitration and the Position of the Chinese Government  8–47
• Chapter Two: Jurisdiction  48–374
•  I. The Tribunal had no jurisdiction over the Philippines’ submissions which reflect a territorial and maritime delimitation dispute between China and the Philippines  57–109
•   I.1. There exists a territorial and maritime delimitation dispute between China and the Philippines in the South China Sea  59–80
•   I.2. The essence of the Philippines? submissions is the territorial and maritime delimitation issue between China and the Philippines  81–109
•  II. The Tribunal erroneously found that the Philippines’ submissions do not relate to the territorial and maritime delimitation dispute between China and the Philippines and erroneously exercised jurisdiction over these submissions  110–204
•   II.1. The Tribunal erred in characterizing the dispute reflected in the Philippines’ submissions by adopting a fragmentation approach and failed to objectively and properly identify the territorial sovereignty and maritime delimitation essence of the Philippines’ submissions  112–124
•   II.2. The Tribunal, on the basis of subjective assumption instead of fact, erroneously found that the Philippines’ submissions do not relate to territorial sovereignty  125–152
•   II.3. The Tribunal misconstrued maritime delimitation, misinterpreted Article 298 of the Convention, and erroneously determined that the Philippines’ submissions do not relate to maritime delimitation  153–186
•   II.4. The Tribunal erred in finding that the Philippines’ Submissions No.1 and 2 did not involve “historic title” and failed to consider whether “historic rights” constitute relevant circumstances of maritime delimitation  187–204
•  III. The Tribunal erred in finding that the Philippines’ submissions reflected the disputes as it identified between China and the Philippines concerning the interpretation or application of the Convention  205–269
•   III.1. International judicial practice in respect of determining the existence and nature of a dispute  207–227
•   III.2. The Tribunal erred in identifying and characterizing a dispute with respect to the Philippines’ Submissions No. 1 and   2228–248
•   III.3 The Tribunal’s identification and characterization of disputes with respect to the Philippines’ Submissions No. 3 through 7 are not well founded in fact or law  249–260
•   III.4. The Tribunal failed to ascertain there exist disputes between China and the Philippines concerning the interpretation or application of the Convention with respect to the Philippines’ Submissions No. 8 to   14261–269
•  IV. The Tribunal erred in its decision on the choice of means made by China and the Philippines for the settlement of disputes and its effect  270–330
•   IV.1. The Tribunal erred in finding no agreement between China and the Philippines to settle their dispute through negotiations  274–306
•   IV.2. The Tribunal erred in determining that China and the Philippines had resorted to negotiation but reached no settlement  307–317
•   IV.3. The Tribunal erred in finding that China and the Philippines had not excluded the compulsory dispute settlement procedures even if there existed an agreement  318–330
•  V. The Tribunal erred in finding that the Philippines and China had exchanged views as required by Article 283  331–352
•   V.1 The Tribunal failed to ascertain whether the Philippines had fulfilled the obligation to exchange views on relevant “disputes”  335–340
•   V.2 The Tribunal mismatched consultations between China and the Philippines concerning issues of territorial sovereignty and maritime delimitation with exchange of views regarding “disputes” identified by the Tribunal in the Philippines’ submissions and means of their settlement  341–345
•   V.3. The Tribunal erroneously narrowed the obligation to exchange views under the Convention to that concerning merely the means of dispute settlement  346–352
•  VI. The Tribunal violated the non ultra petita rule and/or Article 10 of Annex VII  353–367
•   VI.1. The non ultra petita rule  354–359
•   VI.2. The “confinement requirement” under Article 10 of Annex VII  360–361
•   VI.3. The violation of the non ultra petita rule and Article 10 of Annex VII in this Arbitration  362–367
•   Conclusion  368–374
• Chapter Three: Admissibility  375–426
•  I. The Philippines made three rounds of major amendments to its submissions  378–387
•   I.1. The first round of major amendments were made prior to the submission of the Philippines’ Memorial  379–381
•   I.2. The second round of major amendments were made in the Philippines’ Memorial  382–383
•   I.3. The third round of major amendments were made at the end of the merits hearing  384–387
•  II. The Tribunal failed to properly address the admissibility issues arising from the Philippines’ amendments to its submissions  388–410
•   II.1. The Tribunal failed to properly address the admissibility issues arising from the Philippines’ amendments to its submissions, and even guided the Philippines to make amendments  389–396
•   II.2. The Tribunal disregarded well-established standards of admissibility, invented a loose and ambiguous criterion and in any event did not apply them faithfully  397–406
•   II.3. The Tribunal erroneously regarded the Philippines’ claims in its 2014 Amended Statement of Claims as its original claims  407–410
•  III. The Tribunal erred in allowing the Philippines’ amendments to its Submissions No. 11, 12(b) and 14 and finding them as formulated in the Final Submissions admissible  411–421
•   III.1. The Tribunal erred in allowing the Philippines’ amendments to its Submissions No.11 and 12(b) and finding them as formulated in the Final Submissions admissible  412–420
•   III.2. The Tribunal erred in allowing the Philippines’ amendment to its Submission No. 14 and finding it as formulated in the Final Submissions admissible  421–423
•   Conclusion  424–426
• Chapter Four: Historic Rights (Submissions No. 1 and 2)  427–539
•  I. The Tribunal erred in addressing the issue of China’s historic rights in the South China Sea separately from the territorial and maritime delimitation dispute between China and the Philippines  432–439
•   I.1. The issue of China’s historic rights in the South China Sea raised in the Philippines’ claims forms an integral part of the territorial and maritime delimitation dispute between China and the Philippines  433–436
•   I.2. The issue of maritime delimitation between China and the Philippines not having been resolved, the premise for applying Articles 56, 58, 62 and 77 of the Convention does not exist  437–439
•  II. The Tribunal erred in its decision on the relationship between historic rights and the Convention  440–498
•   II.1 The Tribunal erroneously found that the Convention provided norms for settling all issues relating to the law of the sea  441–454
•   II.2. The Tribunal erred in deciding on the relationship between the Convention and rules of general international law  455–469
•   II.3. The Tribunal failed to properly appreciate the continued viability of historic rights after the Convention’s entry into force  470–498
•  III. The Tribunal erred in finding that China enjoyed no historic rights in the South China Sea  499–535
•   III.1. The Tribunal mischaracterized China’s historic rights in the South China Sea  500–509
•   III.2. The Tribunal erroneously found that China did not have any historic rights in the South China Sea  510–532
•   III.3. The Tribunal disingenuously put up and shot down a strawman—whether China’s relevant practice after the Convention’s entry into force had established historic rights  533–535
•   Conclusion  536–539
• Chapter Five: The Status of China’s Nansha Qundao and Zhongsha Qundao (Submissions No. 3 to 7)  540–727
•  I. The Tribunal erroneously addressed separately the status of the component features of China’s Nansha Qundao and Zhongsha Qundao, in effect dismembering the two archipelagos and fragmenting the territorial and maritime delimitation dispute  544–556
•   I.1. The Tribunal erroneously decided on the status of component features of Nansha Qundao and Zhongsha Qundao separately, dismembering the two archipelagos  549–553
•   I.2. The Tribunal erroneously addressed separately the status of the component features of China’s Nansha Qundao and Zhongsha Qundao, fragmenting the territorial and maritime delimitation dispute  554–556
•  II. The status of Nansha Qundao as an outlying archipelago of China, a continental State, is well founded under general international law  557–613
•   II.1. The regime of continental States’ outlying archipelagos is well established  558–587
•   II.2. The status of China’s Nansha Qundao as an outlying archipelago has been well established  588–599
•   II.3. The Tribunal erred in applying certain provisions of the Convention to China’s Nansha Qundao  600–613
•  III. The Tribunal erred in separately addressing certain “low-tide elevation” components of Nansha Qundao (Submissions No. 4 to 6)  614–644
•   III.1. The Tribunal erred in dismembering Nansha Qundao by addressing its component features separately and characterizing certain of its component features as “low-tide elevations”  616–621
•   III.2. The Tribunal erred in finding that certain “low-tide elevations” of Nansha Qundao were incapable of appropriation  622–637
•   III.3. The Tribunal erred in deciding that Meiji Jiao and Ren’ai Jiao of China’s Nansha Qundao were “the submerged landmass”, and formed part of the exclusive economic zone and continental shelf of the Philippines  638–644
•  IV. The Tribunal erroneously interpreted and applied Article 121 of the Convention (Submissions No. 3, 5 and 7)  645–721
•   IV.1. The Tribunal misinterpreted Article 121 of the Convention  648–694
•   IV.2. The Tribunal erroneously determined that all “high-tide features” of China’s Nansha Qundao and Zhongsha Qundao were “rocks”  695–716
•   IV.3. The rock of Oki-no-Tori (Oki-no Tori-shima) is not remotely comparable to component features of the archipelagos of Nanhai Zhudao  717–721
•   Conclusion  722–727
• Chapter Six: The Legality of China’s Activities in the South China Sea (Submissions No. 8 to 14)  728–885
•  I. China’s activities to affirm and safeguard its sovereignty and rights and to manage and exploit resources in the South China Sea (Submissions No. 8 and 9)  731–745
•   I.1. The Tribunal erred in finding that China had 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 exclusive economic zone and continental shelf  733–741
•   I.2. The Tribunal erred in finding that China failed to prevent fishing by Chinese flagged vessels in “the Philippines’ exclusive economic zone”  742–745
•  II. China’s “preventing Filipino fishermen from fishing” in the waters of Huangyan Dao (Submission No. 10)  746–777
•   II.1. The Tribunal disregarded the inseparability between Submission No. 10 and territorial sovereignty over Huangyan Dao  749–751
•   II.2. The Tribunal erred in finding that the fishing activities of Philippine fishermen gave rise to traditional fishing rights  752–764
•   II.3. The Tribunal erred in construing the nature of traditional fishing rights and applying Article 2(3) of the Convention  765–777
•  III. China’s activities and the protection and preservation of the marine environment in the South China Sea (Submissions No. 11 and 12(b))  778–820
•   III.1. Nature of the due diligence obligation invoked by the Tribunal  782–784
•   III.2. The Tribunal erred in finding that China had, through its toleration and protection of, and failure to prevent harmful harvesting, breached certain provisions of the Convention  785–802
•   III.3. The Tribunal erred in finding that China’s construction activities on the component islands of Nansha Qundao violated certain provisions of the Convention  803–820
•  IV. China’s Construction activities on Meiji Jiao of Nansha Qundao (Submissions No. 12 (a) and (c))  821–826
•   IV.1. China’s construction activities on Meiji Jiao are an act of exercising sovereignty  824
•   IV.2. The Tribunal erred in applying Articles 60 and 80 and finding that China infringed on the Philippines’ sovereign rights in its exclusive economic zone and continental shelf  825–826
•  V. China’s law enforcement activities against the Philippine vessels in the area of Huangyan Dao (Submission No. 13)  827–857
•   V.1. The Tribunal mischaracterized China’s expelling of the Philippine vessels in the area of Huangyan Dao  830–833
•   V.2. The Tribunal erred in applying the COLREGS through Article 94 of the Convention  834–847
•   V.3. The operation of China’s vessels in the area of Huangyan Dao is lawful and reasonable  848–857
•  VI. China’s actions in the South China Sea and the alleged claim of “aggravation or extension” of the dispute (Submission No. 14)  858–884
•   VI.1. The Tribunal disregarded the fact that the subject-matter raised in the Philippines’ Submission No. 14 is in essence China’s exercise of sovereignty  862–864
•   VI.2. The Tribunal’s determination that China’s construction activities had “aggravated or extended the dispute” rested on incorrect premises  886–869
•   VI.3. The Tribunal erroneously interpreted “the obligation of refraining from aggravating or extending the dispute” in international law and applied it to China in respect of its construction activities  870–884
•   Conclusion  885
• Chapter Seven: Due Process and Evidence  886–976
•  I. Due Process  892–920
•   I.1. The Tribunal failed to state reasons for certain of its important findings  894–901
•   I.2. The composition of the Tribunal lacks representativeness  902–911
•   I.3 The Tribunal’s handling of certain procedural issues shows partiality  912–915
•   I.4 The Tribunal improperly and unprecedentedly allowed a number of States to attend the arbitral hearings as observers  916–920
•  II. Evidence  921–972
•   II.1 The Tribunal acted in contravention to the basic requirements regarding burden of proof  923–948
•   II.2. The Tribunal erred in its treatment of standard of proof  949–957
•   II.3. The Tribunal based its findings of important facts on evidence lacking relevance, materiality or probative value  958–967
•   II.4 The Tribunal erred in making inferences of fact  968–972
•   Conclusion  973–976
• General Conclusion: The Tribunal’s many errors deprive its awards of validity and threaten to undermine the international rule of law  977–984
•  I. The Tribunal manifestly had no jurisdiction over the Philippines’ submissions, and its awards are groundless both in fact and in law, thus null and void  978–981
•  II. The Tribunal’s awards threaten to undermine the international rule of law  982–984
• Page
• Annexes  655
• Annex I 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  655
• Annex II Statement of the Ministry of Foreign Affairs of the People’s Republic of China on the Award on Jurisdiction and Admissibility of the South China Sea Arbitration by the Arbitral Tribunal Established at the Request of the Republic of the Philippines  679
• Annex III Statement of the Ministry of Foreign Affairs of the People’s Republic of China on the Award of 12 July 2016 of the Arbitral Tribunal in the South China Sea Arbitration Established at the Request of the Republic of the Philippines  681
• Annex IV Statement of the Government of the People’s Republic of China on China’s Territorial Sovereignty and Maritime Rights and Interests in the South China Sea  683
• Annex V China Adheres to the Position of Settling Through Negotiation the Relevant Disputes Between China and the Philippines in the South China Sea  685
• Bibliography  714
• Index  740
• Acknowledgement  748

Abbreviations

• Award of 12 July

  The South China Sea Arbitration Award of 12 July 2016

• Award on Jurisdiction

  The Tribunal’s Award on Jurisdiction and Admissibility, dated 29 October 2015

• China’s Position Paper

  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, published on 7 December 2014

• Convention

  United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 3

• DOC

  2002 China–ASEAN Declaration on the Conduct of Parties in the South China Sea, 4 November 2002

• Hearing on Jurisdiction

  The Hearing held from 7 to 13 July 2015 to consider the matter of the Tribunal’s Jurisdiction and, as necessary, the admissibility of the Philippines’ submissions

• Hearing on the Merits

  The Hearing held from 24 to 30 to November 2015 to consider any outstanding issues of the Tribunal’s jurisdiction and admissibility and the merits of the Philippines’ submissions

• ICJ

  International Court of Justice

• ICSID

  International Centre for Settlement of Investment Disputes

• ILC

  International Law Commission

• ITLOS

  International Tribunal for the Law of the Sea

• PCIJ

  Permanent Court of International Justice

• RIAA

  Reports of International Arbitral Awards

• Supplemental Written Submission

  The Supplemental Written Submission of the Philippines, filed on 16 March 2015, pursuant to Article 25 of the Rules of Procedure and Procedural Order No. 3

• UN

  United Nations

• UNCITRAL

  United Nations Commission on International Trade Law

• UNCLOS

  United Nations Convention on the Law of the Sea

• UNCLOS I

  First United Nations Conference on the Law of the Sea, 1956-58

• UNCLOS II

  Second United Nations Conference on the Law of the Sea, 1960

• UNCLOS III

  Third United Nations Conference on the Law of the Sea, 1973-82

• UNTS

  United Nations Treaty Series

Glossary of Geographic Names

Introduction

1. The land territory of the People’s Republic of China includes the mainland of China and its coastal islands; Taiwan and all islands appertaining thereto, including Diaoyu Dao (Diaoyu Islands); Penghu Liedao (Penghu Islands); Dongsha Qundao (Pratas Islands); Xisha Qundao (Paracel Islands); Zhongsha Qundao (including Macclesfield Bank and Scarborough Shoal) and Nansha Qundao (Spratly Islands); as well as all the other islands belonging to the People’s Republic of China. China is one of the countries bordering the South China Sea. China and the Philippines are States with opposite coasts; the distance between China’s Zhongsha Qundao and Nansha Qundao and the Philippine Islands is less than 200 nautical miles. Since the 1970s, the Philippines has invaded and illegally occupied some islands and reefs of China’s Nansha Qundao, creating a territorial issue with China over these islands and reefs. In 1997, the Philippines began to unlawfully claim sovereignty over Huangyan Dao (Scarborough Shoal) of China’s Zhongsha Qundao. With the development of the international law of the sea, a maritime delimitation dispute also arose between the two States regarding certain maritime areas of the South China Sea. China and the Philippines have reached agreement on resolving through negotiations and consultations the relevant disputes in the South China Sea.

2. On 22 January 2013, invoking Article 287 of and Annex VII to the United Nations Convention on the Law of the Sea (“UNCLOS” or “Convention”), the Philippines unilaterally initiated compulsory arbitral proceedings against China (“South China Sea Arbitration” or “Arbitration”). The Philippines deliberately mischaracterized the territorial and maritime delimitation dispute in the South China Sea between China and the Philippines, and fragmented it into several isolated disputes, and camouflaged them as disputes concerning the interpretation or application of the Convention. On 19 February 2013, the Chinese government unequivocally rejected the Arbitration. The Arbitral Tribunal constituted at the request of the Philippines (“Tribunal”) obstinately pushed forward the arbitral proceedings, in disregard of the fact that it manifestly had no jurisdiction over the territorial and maritime delimitation dispute between China and the Philippines and of China’s resolute opposition. On 29 October 2015, the Tribunal rendered an Award on Jurisdiction and Admissibility (“Award on Jurisdiction”) and, on 12 July 2016, an Award on the merits and the remaining issues of jurisdiction and admissibility (“Award of 12 July”).

3. Since the Philippines’ unilateral initiation of the Arbitration, China has consistently maintained its position of non-acceptance and non-participation, and its objection to the Arbitration being pushed forward. Immediately upon the issuance of each award, China solemnly stated that the award is null and void and has no binding force, and that China did not and would not accept or recognize the award.

4. As a national learned society, the Chinese Society of International Law has been closely following the Arbitration since the very beginning, as it involves a number of complicated and significant legal issues. Through a careful study of the Tribunal’s awards, the Society has come to the view that the Tribunal had no jurisdiction over any of the Philippines’ submissions, and that the awards were made ultra vires, and are not well founded in fact or law, thus null and void. The Tribunal erroneously exercised jurisdiction over territorial issues beyond the scope of the Convention and over issues concerning maritime delimitation which China has excluded from the compulsory dispute settlement procedures under the Convention, thus acting beyond the authorization of the Convention. By disregarding the agreement between China and the Philippines on settling through negotiations and consultations all their relevant disputes in the South China Sea, the Tribunal infringed the right of China, as a State party to the Convention, to choose the means of dispute settlement on its own will. In respect of many issues, the Tribunal’s interpretation and application of the Convention is flawed, and deviates from the intent of the State parties to the Convention and the object and purpose of the Convention. The Tribunal erred in denying the existence of China’s historic rights in the South China Sea and the legal status of China’s Nansha Qundao and Zhongsha Qundao as archipelagos, also erred in qualifying Huangyan Dao of Zhongsha Qundao and all islands of Nansha Qundao as rocks that cannot sustain human habitation or economic life of their own, and further erred in arbitrarily finding that China’s relevant activities in the South China Sea were illegal.

5. These awards are not conducive to solving the dispute between China and the Philippines in the South China Sea; instead, they have complicated the related issues. They have impaired the integrity and authority of the Convention, threaten to undermine the international maritime legal order, run counter to the basic requirements of the international rule of law, and also imperilled the interests of the whole international community. In order to make a contribution to the efforts to put the record straight, safeguard peace and stability in the South China Sea, and promote the international rule of law, the Society considers it necessary to carefully study, from a legal perspective, the Tribunal’s awards and to lay bare the errors therein.

6. To this end, a research group of the Society worked for more than one year (from September 2016 to December 2017) to produce this critical study on the awards (“Study”). More than 60 experts in the fields of law, international relations, history, geography, etc., participated in this project. The Society also invited more than 20 experts of recognized competence from China, including Taiwan, Hong Kong and Macao, as well as other countries to provide guidance and review drafts on specific questions. This Study, completed at the beginning of December 2017, is the outcome of these collective efforts and represents the position of the Chinese academia of international law on the awards.

7. This Study consists of an Introduction, Chapters One through Seven, and a General Conclusion:

Chapter One provides an overview of the background to and the course of the South China Sea Arbitration, and summarizes China’s position of non-acceptance of and non-participation in the Arbitration initiated by the Philippines, and its position of non-acceptance and non-recognition of the Tribunal’s awards.

Chapter Two elaborates on the fact that the Tribunal manifestly had no jurisdiction over the Philippines’ submissions in the Arbitration, and it acted ultra vires, and violated the non ultra petita rule by dealing with issues not included in the Philippines’ submissions.

Chapter Three shows that the Tribunal failed to properly address the admissibility of the Philippines’ amended submissions.

Chapter Four elaborates, with respect to the Tribunal’s decisions on the Philippines’ Submissions No. 1 and 2, that the Tribunal erred in addressing the relationship between the Convention and historic rights and in denying the existence of China’s historic rights in the South China Sea.

Chapter Five elaborates, with respect to the the Tribunal’s decisions on the Philippines’ Submissions No. 3 through 7, that the Tribunal erred in addressing the status and entitlement of the relevant features of Nansha Qundao and Zhongsha Qundao separately, thereby dismembering the two archipelagos, and further erred in its interpretation and application of law, especially the “regime of islands” under Article 121 of the Convention.

Chapter Six elaborates, with respect to the Tribunal’s decisions on the Philippines’ Submissions No. 8 through 14, that the Tribunal erred in finding that China’s relevant activities in the South China Sea were illegal and had aggravated and extended the disputes.

Chapter Seven elaborates that the Tribunal erred in procedural and evidential matters.

The Conclusion summarizes this Study in broad outline and concludes that the Tribunal’s awards were made manifestly ultra vires and had no basis in fact and law, and the Chinese government is well justified to declare them null and void. These awards threaten the international rule of law.