An Open Letter on the South China Sea Arbitration

Overseas scholars of international law hold copies of the United Nations Convention on the Law of the Sea (UNCLOS) in hands in front of the Peace Palace in Hague, Netherlands on July 8, 2016. They try to seek justice of the international law by publicizing an open letter about scholars' professional stance on the South China Sea case. [Photo by Fu Jing/China Daily]

International courts and tribunals,

State Parties to the UNCLOS,

Scholars, students, and lawyers of international law,

All supporters to the peaceful settlement of disputes,

At the issuance of the final award of the South China Sea Arbitration (the Arbitration), we, the undersigned scholars and students of international law, hereby emphasize that the ad hoc Arbitral Tribunal (the Tribunal) has no jurisdiction over the relevant disputes, and that the Award has no binding force.

Below, we clarify that state consent is the basis of the compulsory arbitration under the United Nations Convention on the Law of the Sea (the UNCLOS). We then demonstrate that the real disputes between China and the Philippines and those under the Arbitration are disputes over territorial sovereignty and maritime delimitation, for which there is no mutual state consent to the compulsory jurisdiction. We also show how the Philippines and the Tribunal have exceeded mutual state consent. Finally, we show that the Arbitration is neither binding nor helpful to the settlement of disputes in the South China Sea. We argue and state as follows:

I. State consent as the basis of the compulsory arbitration

There is no supra-national international judicial or arbitral organ. These international organs are established under state consent, as reflected in relevant treaties, compromis and resolutions of the UN Security Council. Thus, state consent constitutes the legal basis for these organs and defines their competence. Within the scope of state consent, an organ is legitimate. If it oversteps this scope, its legitimacy has no legal basis. Compulsory arbitration and other compulsory procedures under the Convention, as agreed upon by more than 160 countries in nine years’ negotiation, are strictly based on state consent.

Going through the UNCLOS carefully, one will easily find how state consent defines the applicability of compulsory procedures, including compulsory arbitration. First, these procedures are authorized only for disputes concerning the interpretation and application of the Convention (Article 286). Hence, without mutual state consent, an arbitral tribunal cannot address territory disputes. Second, parties to maritime disputes can agree upon the means to settle their dispute and to exclude any further procedure, including the UNCLOS procedures, such as the compulsory arbitration (Articles 281, 282). Third, States are entitled to declare that they do not accept compulsory procedures with respect to maritime delimitation disputes and other disputes involving vital national interests (Article 298). Compulsory procedures are subject to such declarations.

With such declarations, relevant dispute may be submitted to compulsory procedures only by agreement of the parties to the dispute (Articles 286, 299). So far, 35 States, including China, have made such declarations. Fourth, negotiation and exchange of views are prior requirements to trigger compulsory procedures (Articles 279, 283, 286).

The above-mentioned limitations, exceptions and prior requirements are the major limits of state consent, which define the extent of jurisdiction of the judicial and arbitral organs under the UNCLOS. If an organ acts beyond this limits, its legitimacy will have no legal basis. It is notable that, by recognizing the “competence-competence” (a court/tribunal’s power to decide on disputes as to whether it has jurisdiction; Article 288.4), the UNCLOS indicates no intention to reduce the above limits and to grant additional power. The “competence-competence” must also be exercised within the limits of state consent.

II. The real disputes in the Arbitration are territorial dispute and maritime delimitation

There are solid legal bases for China’s sovereignty over the Dongsha Islands, Xisha Islands, Zhongsha Islands and Nansha Islands in the South China Sea (hereinafter collectively referred to as the SCS Islands) and the adjacent waters. The Chinese people were the first to discover, name and develop these Islands, and China’s original title thus acquired has been maintained by its continuous and peaceful display of sovereignty ever since. In addition, China’s sovereignty over these Islands is also reflected in the 1943 Cairo Declaration, the 1945 Potsdam Declaration and subsequent international legal documents.

On the other hand, the Philippine territory has nothing to do with the SCS Islands. All the SCS Islands are located to the west of 118 degrees east, which is the westernmost limit of the Philippine territory, as defined by the 1898 US-Spain Treaty of Peace, the 1900 US-Spain Treaty for Cession of Outlying Islands of the Philippines, the 1930 US-UK Convention Delimiting the Boundary between the Philippines Archipelago and State of North Borneo, as well as the 1935 Philippine Constitution and the 1961 Act to Define the Baselines of the Territorial Sea of the Philippines.

In the 1970s, the Philippines invaded eight maritime features of the SCS Islands, which gave rise to the territorial disputes between China and the Philippines. Later on, with the negotiation of the UNCLOS in process, the Philippines expanded its maritime claims, which overlapped with China’s and led to their maritime delimitation disputes.

The real disputes in the South China Sea are therefore of and about territorial sovereignty and maritime delimitation. According to the principle that the land dominates the sea, with the territorial dispute pending, the coastal State, and the relevant coast and relevant areas for delimitation, cannot be determined; consequently, the task of delimitation cannot start. Therefore, the territory and delimitation disputes in the South China Sea are closely intertwined, and the territorial dispute is predominant.

In the Arbitration, the Philippines raised three categories of inter-related submissions, on the validity of the U-shaped line, on the status/entitlements of maritime features and on China’s interference in the Philippines’ sovereign rights. And the Philippines asserted that these submissions are not relevant to the territorial and delimitation disputes. Careful examination can easily pierce the veil:

First, the U-shaped line depicts China’s sovereignty over the SCS Islands, thus the submissions regarding the line concern the sovereignty of the Islands. In addition, in the Philippine submissions, the line is asserted as representing China’s maritime claim. If the Philippine assertion is correct, resolving the disputes on the U-shaped line is plainly part of the delimitation process, as “the task of the delimitation involves resolving overlapping claims” (Maritime Delimitation in the Black Sea, para. 77).

Second, the submissions on maritime entitlements are inalienable parts of the delimitation process, and are closely related to territorial disputes. According to the established jurisprudence, the first step of any delimitation is to determine whether there are entitlements and whether they overlap (Bangladesh v. Myanmar, para. 397; Barbados /Trinidad and Tobago, para. 224). Further, as maritime entitlements are granted to coastal States, the determination of coastal States, i.e. the settlement of territorial disputes, is a precondition for ascertaining maritime entitlements.

Third, the submissions on the legality of China’s activities are dependent on the settlement of the territorial and delimitation disputes. These submissions reflect the existence of disputed areas, and cannot be addressed without the settlement of the underlying territory and delimitation disputes.

As demonstrated above, all the Philippine submissions are either territorial and delimitation disputes per se, or subsequent to the underlying disputes. In other words, the real disputes in the Arbitration are those regarding territory and maritime delimitation. With respect to the jurisdiction, the UNCLOS does not address territorial disputes, and delimitation disputes have been excluded from compulsory procedures by China’s declaration under Article 298. Therefore, the disputes in the Arbitration are beyond mutual state consent to compulsory jurisdiction.

III. The abuse of legal process and ultra vires acts in the Arbitration

As elaborated in Section I, State Parties to the UNCLOS agree to be bound by the compulsory procedures, but only under the circumstances set out in Articles 281, 282, 286, 298 and 299 of the Convention. To maintain the balance and compromise in the Convention, Article 300 requires that right and jurisdiction shall be exercised in a manner that would not constitute an abuse; Article 294 further provides preliminary proceedings to address claims that might constitute abuses of legal process. These non-abuse requirements serve an essential role in safeguarding the overarching principle of state consent. However, the South China Sea Arbitration demonstrates how the legal process is abused by one party to the dispute, and how the arbitral organ acts beyond its power.

The abuse of legal process by the Philippines is apparent. To trigger the Arbitration, the Philippines tried everything possible to exceed the limits of mutual state consent, by disguising the real disputes, by circumventing China’s declaration, and by degrading the bilateral and regional agreements on resolving disputes through negotiation. In so doing, no good faith was demonstrated. Furthermore, according to the explicit provisions in the UNCLOS, given China’s declaration, the Philippines has no right at all to unilaterally initiate the arbitration (Articles 286, 299).

The ultra vires (acts beyond one's legal power or authority) by the Arbitral Tribunal is also obvious. Given China’s declaration, the establishment and functioning of the Tribunal has no legal basis (Article 286). With its legitimacy in doubt, the Tribunal further exceeded the limits of state consent by wrongly establishing its jurisdiction, particularly by the following ultra vires acts:

The Tribunal has restricted the rights of States to exclude compulsory procedures with declarations under Article 298 of the UNCLOS. According to the customary rule for treaty interpretation, i.e. the textual approach and good faith principle as enshrined in the Vienna Convention on the Law of Treaties, Article 298 of the UNCLOS grants States the right to exclude compulsory procedures with respect to all disputes on or concerning the whole delimitation process. By endorsing the Philippine assertion that the Arbitration is irrelevant to territorial dispute and delimitation, the Tribunal has overlooked the relationship among territorial dispute, delimitation and the issue of entitlement. It has also disregarded the terms “concerning” and “relating to” in Article 298, and has neglected the jurisprudence that the first step of any delimitation is to determine whether there are entitlements, and that the task of delimitation involves resolving overlapping claims. With such a fragmentary approach, the Tribunal has not only failed to isolate the real disputes, but has also largely nullified the right of States by only recognizing the right to exclude compulsory procedures with respect to disputes on the final determination of the maritime boundary line.

In addition, the Tribunal has restrictively interpreted the right of States to opt out compulsory procedures by entering into agreements among themselves. With the Declaration on the Conduct of Parties in the South China Sea and a series of bilateral documents, China and the Philippines have repeatedly agreed and undertaken to resolve their disputes through friendly negotiations and consultations. By the Joint Statement on August 10, 1995, and on May 16, 2000, the two countries have also agreed to “eventually” negotiate a settlement of their bilateral disputes. The term “eventually” clearly indicates that negotiation is the only means chosen by the two States for resolving their disputes, and that other means including compulsory arbitration have been excluded, because “the absence of an express exclusion of any procedure is not decisive” for States to exercise the rights to exclude further procedures by their agreement (the Southern Bluefin Tuna arbitration, Award on Jurisdiction and Admissibility, para. 57). Nonetheless, despite the previous case law and with no basis in the Convention, the Tribunal interpreted that the compulsory procedures could only be excluded explicitly, and consequently set an unreasonably higher standard to limit States’ right.

IV. The Awards are neither binding nor helpful

According to the UNCLOS, the Awards of the Tribunal shall have no binding force. States shall comply with the decision rendered by a court or tribunal, but only insofar as the court or tribunal has jurisdiction (Article 296.1). The current Tribunal has no jurisdiction over the real disputes in the Arbitration, and its ultra vires acts could create neither jurisdiction nor binding force; consequently, its Awards do not meet the qualification of being complied.

Alternatively, according to Article 296.2, the decision of a court or tribunal shall have no binding force except in respect of that particular dispute at issue. Since the Philippines and the Tribunal have reiterated, time and again, that the Arbitration concerns neither territorial dispute nor delimitation, the Awards shall have no effects in respect of the territory and delimitation disputes in the South China Sea.

Moreover, the Arbitration is detrimental to the settlement of disputes. The fragmentary approach employed by the Philippines and the Tribunal, and their degradation of existing bilateral and regional agreements, are not helpful to the ongoing efforts for managing and resolving disputes in the South China Sea, and will only be counterproductive. Besides, the abuse of legal process and ultra vires will break the balance of the UNCLOS dispute settlement regime and contravene procedural justice.

In conclusion, the real disputes in the Arbitration are those about territorial sovereignty and maritime delimitation, both of which are beyond the Tribunal’s jurisdiction. By obscuring the real disputes and bypassing the limits to compulsory procedures, the Philippines does abuse the legal process, and the Tribunal does exceed the state consent and act ultra vires. According to Article 296, the Awards on jurisdiction and on merits will have no binding force whatsoever.

Bearing in mind the significance of state consent as the very foundation of international judicial/arbitral organs,

Concerned about the abuse of legal process and ultra vires acts in the South China Sea Arbitration,

Noting the dangerous tendency towards the judicial/arbitral expansion in the field of the law of the sea, and,

Worried about the degradation of the role of State’s negotiation,

We hereby:

Request international judicial and arbitral organs to act strictly within their mandate under international law, to faithfully fulfill their duty in identifying the real dispute between parties, to adjudicate within the realm of their jurisdiction and to avoid acting ultra vires. The arbitral tribunals, ad hoc as they are, shall still be responsible for the overall and long-term functioning of the UNCLOS without breaking the balance contained therein, and shall show their respects for the consent of relevant State Parties.

Urge the Philippines to unconditionally terminate its illegal occupation of the Chinese maritime features in the South China Sea, to stop all activities that may escalate regional tension, to withdraw the claims that are inconsistent with the facts and law, and to solve maritime disputes with its neighbors in good faith.

Call upon all State Parties to the UNCLOS to join China in the efforts to combat abuse of legal process and ultra vires, to adopt all necessary measures, including practical guidance to the judicial/arbitral organs, so that the judicial/arbitral powers are exercised in a way consistent with state consent in the Convention.

Invite scholars, students and lawyers of international law to further study the UNCLOS disputes settlement mechanism so as to contribute to the peaceful settlement of disputes in the South China Sea dispute.