Jurisdiction award in S.China Sea case wrong

By Lu Yang Source:Global Times Published: 2016-1-13 0:08:01

On October 29th, 2015, the award on jurisdiction and admissibility of the South China Sea Arbitration was released by the Arbitral Tribunal established at the request of the Philippines. Seven out of the 15 Philippines' submissions passed both thresholds of admissibility and jurisdiction, and are being examined in the trial on their merits. I have discovered errors in the jurisdictional award on all the Philippines' submissions.

Submissions 3, 4, 6, and 7 concern the legal status of seven Chinese mainland-stationed islands and reefs of the Nansha Islands and Huangyan Dao. To wit, the 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 Exclusive Economic Zone (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) China 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) China 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.

China has never made this claim. The Philippines' official statements have negated its 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.

China on May 7th, 2009 sent to the UN two NVs 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 South China Sea. In the NVs, China reiterates sovereignty over the South China Sea islands and the adjacent waters thereto. China also reiterates sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof. A map was attached which contains the Dotted Line.

To challenge China's 2009 NV, the Philippines lodged its NV dated on 5 April 2011 with the following messages.

Firstly, the Kalayaan Island Group (KIG) constitutes an integral part of the Philippines, which has sovereignty and jurisdiction over the geological features therein.

Secondly, 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.

Thirdly, since the adjacent waters of the relevant KIG geological features are definite according to UNCLOS, China'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, China filed another NV on April 14th, 2011 to the UN outlining the following positions. Firstly, China repeated its 2009 NV by claiming sovereignty over the South China Sea islands. Although claimed by the Philippines' 2011 NV as its territories, KIG is part of China's Nansha Islands.

It was not until the 1970s that the Philippines started to invade and occupy some of China's Nansha Islands, infringing China's territorial sovereignty. Such illegal occupation cannot be invoked by the Philippines to justify its territorial claims in KIG. Secondly, China's Nansha Islands were clearly defined by successive Chinese governments since the 1930s. Under UNCLOS, and the 1992 and 1998 China's laws on TS/contiguous zone on the one hand, and EEZ/CS on the other hand, China's Nansha Islands are fully entitled to TS, EEZ and CS.

The Tribunal invoked the above NVs to demonstrate the existence of disputes reflected by the four Philippines' submissions. However, China'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. No wonder people found no evidence to show the existence of disputes as reflected by these submissions.

If China were to select certain maritime feature to claim EEZ and CS, it would use those features widely deemed proper islands. It would be inconceivable for China to use those eight inferior features identified by these Philippines' submissions. It is wrong for the Philippines to contend in this arbitration that China uses those eight features to claim EEZ and CS in South China Sea, as a dispute must be crystallized by the actual opposing positions of both parties.

These NVs even demonstrate an agreement that some KIG geological features qualify as islands capable of generating TS, EEZ and CS. What are disputed is rather the ownership of (1) territorial sovereignty over the KIG geological features, and (2) maritime entitlements of TS, EEZ and CS generated by these features.

However, 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.

Based on the foregoing, the Tribunal is advised to declare in the award on merits that, upon further examination, no dispute can be crystallized by the formulation of Philippines' submissions 3-4 and 6-7, and thus bravely end the embarrassment and a process started erroneously.

Sovereignty issues invalidate award

By Lu Yang Source:Global Times Published: 2016-1-15 0:12:30

The award on jurisdiction and admissibility of the South China Sea (SCS) arbitration (hereinafter referred to as "the award") is full of errors. Here, I will address the misrepresentations hidden in this award on the Philippines' Submissions 10-11 and 13 concerning maritime confrontation and environmental issues occurring in Huangyan Island and Ren'ai Jiao. These submissions passed the thresholds of admissibility and jurisdiction according to the award.

Submission 10-11 and 13 claim that China has unlawfully prevented Filipino fishermen from pursuing their livelihoods by interfering with traditional fishing activities at Huangyan Island, that China has violated its obligations under UNCLOS to protect and preserve the marine environment at Huangyan Island and Ren'ai Jiao, and that China 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 award considers these issues as reflecting disputes, but not concerning sovereignty. Article 297(1)(c) of UNCLOS applies in Submission 11, granting jurisdiction for the Tribunal to try them. These reasons enabling the Tribunal to entertain the merits of these submissions are unjustified.

The Philippines' submission 10 concerns "Philippine traditional fishing right" denied by China in the territorial water of Huangyan Island. No dispute can possibly be reflected here. To establish a dispute, there must be actual opposing positions from two parties.

Hence, the Tribunal is requested to confirm "the Philippines' traditional fishing rights in that water," with an unreal claim. Actually, the Philippines is claiming territorial sovereignty over Huangyan Island and its territorial water, while denying China's competitive territorial claim. How can the Philippines possibly acknowledge China's sovereignty as the premise for its traditional fishing right?

Winning this case or not, the Philippines will not stop claiming territorial sovereignty over Huangyan Island and its adjacent waters, as this Tribunal is powerless to settle territorial disputes. The Philippines will not even need the "traditional fishing right" to justify its fishermen's activities in the said water afterwards.

Paragraph 153 of the award says that "the Tribunal might consider that the Philippines' submissions could be understood to relate sovereignty if it were convinced that … (b) the actual objective of the Philippines' claims was to advance its position in the Parties' dispute over sovereignty." Indeed, these submissions relate to the Sino-Philippine sovereignty dispute. China's law enforcement vessels are intervening in harvesting activities of Philippine fishermen, law enforcement activities by the Philippine's government vessels against China's fishing boats and the navigation of Phillipine law enforcement vessels in order to display, defend and advance China's territorial sovereignty over Huangyan Island and its territorial waters and to deny the Phillipines' competitive claims there. The Philippines has presented these three submissions to the Tribunal to deny China's territorial claims there.

Huangyan Island is an inherent part of China's territory, over which there is no dispute. However, in order to break up the Philippines' smug calculations, I will do some jurisprudential analyses as follows:

For the dispute concerning "the Philippines' traditional fishing rights," China considers Philippines' fishing vessels to only enjoy innocent passage without any fishing rights. The Philippines insists that the water as its territorial sea where its fishing vessels enjoy fishing rights, leaving China's law enforcement vessels innocent passage, with no right to intervene in the Philippines' fishing activities. The dispute becomes "who is the real coastal State," a territorial dispute.

For the disputes concerning China's obstructions with the Philippines' law enforcement targeting China's fishermen, China considers the Philippines not to be entitled to enforce domestic environmental laws there. With the Philippines' law enforcement vessels in sight eyeing China's fishing vessels, China's government vessels urgently need to deter the Philippines' vessels to safeguard China's territorial integrity there

From the Tribunal's perspective, as the legal status of Ren'ai Jiao is pending, if the Tribunal rules this feature to be a rock, instead of a Low-Tide Elevation (LTE), then the foregoing arguments applicable to Huangyan Island apply to what happened in Ren'ai Jiao for Submission 11. It follows that the Tribunal has no jurisdiction to try this dispute, if any.

Even if the Tribunal deems Ren'ai Jiao an LTE, it remains an inherent part of China's Nansha Islands, so what happened there occurs within China's sovereignty, instead of disputed EEZ. Paragraph 408(b) of the Award says that "Article 297(1)(c) expressly affirms the Tribunal's jurisdiction over disputes concerning the alleged violation of specified international rules and standards for the protection and preservation of the marine environment in the EEZ."

Obviously, no matter whether Ren'ai Jiao itself within Nansha Islands is a rock or an LTE, what happens there is a matter of sovereignty, the condition under Article 297(1)(c) is unfulfilled. It is unjustified for the Tribunal to take jurisdiction over submission 11 concerning the environmental issue occurring in Ren'ai Jiao, even if considered an LTE.

No dispute over China’s historical rights

By Lu Yang Source:Global Times Published: 2016-1-19 22:08:01

The Jurisdictional Award hereafter referred to as "the Award"of the South China Sea (SCS) Arbitration provides that eight of the Philippines' Submissions involve issues not possessing an exclusively preliminary character. The Tribunal cannot determine whether it has jurisdiction over them without considering issues in the merits. Today I will review the Award concerning China's "invocation" of historical right to justify its SCS maritime claim and whether Meiji Jiao and Ren'ai Jiao is part of the Philippines' exclusive economic zone (EEZ) and continental shelf (CS).

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 China'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 based on my first commentary. Surprisingly, an agreement emerges from these NVs that some "Kalayaan Island Group" ("KIG") geological features qualify as islands and capable of generating territorial sea (TS), EEZ and CS; and UNCLOS is invoked by both states to claim maritime entitlements in SCS.

However, Paragraph 165 of the Award cut off the first message of the Philippines' 2011 NV. Careless readers might believe that such a dispute concerning China's claim on historical rights exists. Equally problematic is the interpretation of the term "relevant waters" in China's 2009 and 2011 NVs. Actually, the objective of China's 2009 NVs was to protest against two outer CS submissions to the Commission on the Limits of the Continental Shelf (CLCS) by Vietnam and Malaysia concerning two SCS maritime areas as their continental shelf.

Therefore, what is meant by "relevant waters" must be those submitted to CLCS. As Vietnam and Malaysia never submitted the entire waters within the Dotted Line, the "relevant waters" under China's NVs cannot possibly denote the entire areas within the Dotted Line. The Philippines and the Tribunal are enlarging a confined meaning of "relevant waters" to indicate the entire area within the Dotted Line, while there is no dispute left for the Tribunal to try.

The Philippines' Submission 5 claims that Meiji Jiao and Ren'ai Jiao are part of its EEZ and CS. Amazingly, Paragraph 172 of the Award re-formulated Submission 5 as follows: "In so doing, the Philippines has in fact presented a dispute concerning the status of every maritime feature claimed by China within 200 nautical miles of Meiji Jiao and Ren'ai Jiao." The Tribunal transformed Submission 5 into something else, concluding that a dispute can be reflected by this un-submitted submission despite the fact that in essence the dispute is related to sovereignty and territory.

During the July Hearing, the Philippines' lawyer, Philippe Sands, refused to provide information for all the islands and reefs in the Nansha Islands, as the Tribunal redefined the Philippines' Submission 5. Unprecedentedly, this behavior of the Philippines was tolerated. Mysteriously, the Tribunal concluded that the re-formulated Submission 5 reflected a dispute, even though that the Philippines provided nothing that showed that during the July Hearing.

Recently, the Philippines seems to have received the message from the Tribunal. During the November Hearing, Clive Schofield from Wollongong University who co-authored a paper with Robert Beckman abruptly changed his opinions about the legal status of maritime features in the Nansha Islands. Previously, Schofield and Beckman considered that 12 maritime features in the Nansha Islands fulfill the conditions of "islands" under Article 121 of UNCLOS. Now, Schofield, as part of the Philippines' legal team, told the Tribunal that none of the maritime features qualifies as an island.

I am clueless as to how the Tribunal is going to treat Schofield's new statement, if the Tribunal is willing to adhere to its duty of being equally fair, appearing and non-appearing, under Annex VII to UNCLOS. Will his two conflicting opinions all be discarded ? Or is his latter opinion is to be trusted?

No matter what happens, the fundamental problem remains. No dispute can be reflected by the Philippines' (but not the Tribunal's) Submission 5, which should have been barred from entering the merits phase. According to the non ultra petita principle declared by the ICJ in the Asylum Case the Tribunal has a duty to abstain from deciding points not included in the submission.

Tribunal’s award in Philippines’ case turns blind eye to facts

By Lu Yang Source:Global Times Published: 2016-1-20 19:38:02

The Jurisdictional Award, hereafter referred to as "the Award"of the South China Sea (SCS) Arbitration, released on October 29th, 2015, is full of errors. Today I will comment on the Award concerning the Philippines' remaining Submissions 8-9, 12 and 14.

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 China has no EEZ and CS in the South China Sea (SCS), rendering all China's exploration, exploitation, conservation, and management activities there illegal.

Why has China no EEZ/CS? The Philippines argues that none of the seven islands and reefs stationed by the Chinese mainland in SCS qualifies as island; even the largest islands (Taiping Dao, Zhongye Dao and Xiyue Dao) are not islands by law, and all the islands and reefs in the Nansha Islands are not islands.

As uncovered by my first and third commentaries, the Philippines' 2001 Note Verbale (NV) claims that some islands and reefs in the "Kalayaan Island Group (KIG)" qualify as islands capable of generating EEZ and CS, based on the first message in conjunction with the remaining paragraphs. Mysteriously, the first message was erased by the Award in Paragraph 165, facilitating the Tribunal to entertain Submissions 8-9 in the merits phase.

The Philippines' Submission 12 provides that China's occupation of and construction activities on Meiji Jiao: "(a) violate the provisions of UNCLOS concerning artificial islands, installations, and structures; (b) violate China'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, China 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.

Before answering the preliminary question "in whose EEZ and CS these two features stand," the Tribunal must, however, delimit the Sino-Philippine sea boundaries first. Being powerless to set this delimitation, the Tribunal should have declared its lack of jurisdiction in the Award.

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 China, 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 China. In this context, the objective of Submissions 12 and 14 is to deny China's territorial claim and to safeguard the Philippines' territorial claim over these two islands and reefs, through ending China's presence and construction in Meiji Jiao and getting rid of China'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.

Let me sum up my four commentaries.

First, it is critical to go through the 2009-2011 Sino-Philippine exchange of NVs to know the nature of their disputes and agreement. Second, the Philippines is fabricating China's SCS maritime claims on groundless evidence and reasoning.

Third, even the Philippines considers some of the islands and reefs in "KIG" to qualify as islands. Such a position of the Philippines' defeats all its Submissions in this arbitration. Fourth, the overlapping Sino-Philippine EEZ and CS claims in SCS and the ensuing sea boundary delimitation disputes are undeniable.

It is groundless for the Philippines' Submissions 5, 8-9, 12, 14 to enter into merits phase. The sovereignty dispute is closely related to the Philippines' Submissions 10-14 concerning Huangyan Dao, Meiji Jiao and Ren'ai Jiao. Fifth, the Tribunal is on the back of a crazy horse before the cliff. To save or not to save the credibility of this arbitration, that is the question.