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Jurisdiction award in S.China Sea case wrong
2016/02/02

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.

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