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

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

Illustration: Liu Rui/GT

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.

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

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