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.

The author is a Beijing-based scholar of international relations and international law.

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