Xisha Islands in the South China Sea Photo: VCG

 
I. Why is mkit argued that the arbitral tribunal acted ultra vires? 

Firstly, the arbitral tribunal exceeded its jurisdiction ratione materiaeby arrogating to itself jurisdiction over disputes concerning territorial sovereignty, which are not regulated by the United Nations Convention on the Law of the Sea (the Convention). In the South China Sea Arbitration, all claims raised by the Philippines essentially revolve around disputes over territorial sovereignty concerning certain maritime features in the South China Sea. Secondly, the arbitral tribunal exercised jurisdiction over maritime delimitation disputes that China had explicitly declared to be excluded from the compulsory procedures. In 2006, China specifically excluded this category of disputes from compulsory dispute settlement procedures in accordance with the Convention. Thirdly, the arbitral tribunal infringed upon the Parties' right to settle a dispute through peaceful means of their own choice. By its strained interpretation of Article 281, the commitment between China and the Philippines to resolve disputes solely through negotiation somehow did not constitute an "agreement." Such interpretation contradicts the relevant provisions of the Convention and its legislative intent. Fourthly, the tribunal violated the principle of non ultra petita. In the South China Sea Arbitration, the claims of the Philippines did not include the legal status and maritime rights of Taiping Dao and some other islands and reefs in the South China Sea, nor did they cover the legal status and maritime rights of the Nansha Qundao as an archipelago. However, the tribunal erroneously asserted in its award that "all high-tide features of the Nansha Qundao" are rocks and that the Nansha Qundao cannot claim maritime rights as a whole. These pronouncements constitute a serious violation of the principle of non ultra petita.

II. Why is it argued that the arbitral tribunal contravened the law?

The arbitral tribunal disregarded the rules of international law and rendered unlawful decisions, seriously undermining the international rule of law. First, the arbitral tribunal disregarded the fact that general international law can serve as the legal basis for maritime claims. Second, the arbitral tribunal disregarded the relationship between the Convention and general international law as outlined in the Convention itself. Third, the arbitral tribunal disregarded the well-established rules pertaining to historic rights in general international law. Fourth, the arbitral tribunal disregarded the long-established régime of continental States' outlying archipelagos in general international law. Fifth, the arbitral tribunal disregarded the explicit provisions of Article 121 of the Convention and manipulated its wording. Sixth, the arbitral tribunal disregarded due process and the rule of evidence. 

III. Why is it argued that the arbitral tribunal abused its power?

The arbitral tribunal's failure to uphold the principle of good faith in interpreting and applying international law. Firstly, there was a malicious characterization of disputes. The arbitral tribunal chose to fragment the territorial sovereignty dispute concerning the Nansha Qundao and Zhongsha Qundao into individual disputes over the status of maritime features and associated rights. This approach circumvented the core issue of territorial sovereignty. Secondly, there was a malicious circumvention of general international law. The arbitral tribunal viewed the Convention as the exclusive basis for maritime claims, deliberately disregarding the significance of general international law in this context. Thirdly, there was a malicious interpretation of the law. This effectively replaced customary law with other treaties despite the distinction between treaties and customary international law. 

IV. The arbitral tribunal to deny that China can claim rights over the Nansha Qundao as an entirety. What is China's comment on this matter?

The arbitral tribunal's stance, which denies Nansha Qundao's qualification to claim territorial sovereignty and maritime rights, is fundamentally flawed. Firstly, from a legislative history perspective, the régime of continental States' outlying archipelagos was well established under customary international law prior to the conclusion of the Convention. This matter was not addressed in the Convention and continues to be governed by customary international law. In the negotiations of the Convention, the system of far-sea islands of mainland States was not rejected, but suspended. Secondly, from an international practice perspective, numerous examples exist of continental countries claiming rights over the outlying archipelagos as a whole. Presently, approximately 20 continental countries worldwide possess outlying archipelagos, with 17 of them having established straight baselines for their outlying archipelagos as a whole. This widespread practice constitutes a common and consistent State practice, accompanied by corresponding opinio juris, sufficient to prove the existence of relevant customary international law. Thirdly, in terms of China's practices, there is a substantial historical and legal basis for claiming rights over the Nansha Qundao in its entirety. China has consistently claimed and exercised territorial sovereignty and maritime rights over the Nanhai Zhudao, including Dongsha Qundao, Xisha Qundao, Zhongsha Qundao and Nansha Qundao, as a unified whole. The arbitral tribunal erred fundamentally in dismembering the Nansha Qundao, individually adjudicating and disposing of various features therein, thereby misconstruing its legal status.

V. Why is it wrong for the arbitration to deny China's claim of historic rights in the South China Sea?

China enjoys historic rights in the South China Sea, supported by historical evidence, domestic legal frameworks and international law. In terms of characterization, the tribunal erred in limiting China's historic rights in the South China Sea to rights over natural resources, thereby disregarding its sovereign historic rights. In terms of scope, the tribunal erroneously limited China's historic rights to functional rights concerning resources and activities, overlooking China's historic rights over Nanhai Zhudao and relevant waters. Furthermore, the tribunal erroneously characterized China's navigation, fishing, resource exploitation and other activities in the South China Sea as exercising freedom of the high seas rather than exercising historic rights.

VI. Why is it absurd for the tribunal to rule that China's activities in the South China Sea are illegal?

The arbitral tribunal mischaracterized the legal status of sea areas, erred in its factual findings, accepted inadmissible evidence, misinterpreted and misapplied the law. Consequently, its conclusion that China's related activities in the South China Sea violated the Convention's provisions or were illegal was based on entirely subjective speculation. First, the tribunal's conclusion that China's activities in the South China Sea were illegal was based on false facts and an illegal premise. The tribunal erroneously asserted that the relevant sea areas of the Nansha Qundao belonged to the exclusive economic zone or continental shelf of the Philippines. Second, the tribunal seriously erred in its factual findings, accepted inadmissible evidence, misinterpreted and misapplied the law regarding China's various activities in the South China Sea. In short, the conclusion that China's activities in the South China Sea are illegal is entirely absurd. 

The author is director-general of the Department of Treaty and Law of the Ministry of Foreign Affairs. [email protected]