Full coverage: South China Sea Is Indisputable Part of China

Chinese Society of International Law

10 June 2016

Since 22 January 2013 when the Philippines unilaterally initiated arbitration with respect to certain issues in the South China Sea ("Arbitration"), China has maintained its solemn position that it would neither accept nor participate in the Arbitration, having stated that the tribunal constituted at the unilateral request of the Philippines ("Arbitral Tribunal" or "Tribunal") manifestly has no jurisdiction. On 7 December 2014, the Chinese Government released the Position Paper of the Government of the People's Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines ("Position Paper"), which elaborated on these positions. The Chinese Society of International Law strongly supports the positions of the Chinese Government.

China has indisputable sovereignty over the South China Sea Islands and the adjacent waters. The core of the disputes between China and the Philippines in the South China Sea is issues of territorial sovereignty resulting from the Philippines' illegal seizure and occupation of certain maritime features from China in the Nansha Islands, and issues concerning maritime delimitation between the two States. These are also exactly the essence of the Arbitration instituted by the Philippines.

On 29 October 2015, the Tribunal issued its Award on Jurisdiction and Admissibility ("Award on Jurisdiction" or "Award"), in which it found that disputes between China and the Philippines concerning the interpretation or application of the United Nations Convention on the Law of the Sea ("UNCLOS" or "Convention") existed with respect to the matters raised by the Philippines in all of its Submissions. The Tribunal further found that it had jurisdiction over some of the Submissions made by the Philippines, and reserved consideration of its jurisdiction with respect to the other Submissions to the merits phase. This finding is full of errors in both the determination of fact and the application of law, at least in the following six respects:

First, the Tribunal errs in finding that the claims made by the Philippines constitute disputes between China and the Philippines concerning the interpretation or application of the UNCLOS;

Second, the Tribunal errs in taking jurisdiction over claims which in essence are issues of sovereignty over land territory and are beyond the purview of the UNCLOS;

Third, the Tribunal errs in taking jurisdiction over claims concerning maritime delimitation which have been excluded by China from compulsory procedures in line with the UNCLOS;

Fourth, the Tribunal errs in denying that there exists between China and the Philippines an agreement to settle the disputes in question through negotiation;

Fifth, the Tribunal errs in finding that the Philippines had fulfilled the obligation to "exchange views" regarding the means of disputes settlement with respect to the claims it made;

Sixth, the Tribunal's Award deviates from the object and purpose of the dispute settlement mechanism under the UNCLOS, and impairs the integrity and authority of the Convention.

The Chinese Society of International Law is of the view that having jurisdiction over the claims is a prerequisite for the Tribunal to initiate its proceedings on merits, and a basis for the validity of any final decisions. In the present Arbitration, the Tribunal does not have jurisdiction over any of the claims made by the Philippines. Its Award on Jurisdiction is groundless both in fact and in law, and is thus null and void. Therefore, any decision that it may make on substantive issues in the ensuing proceedings will equally have no legal effect.