South China Sea arbitration tribunal has no jurisdiction over Manila-started dispute

Moreover, whether or not a submerged feature or low-tide elevation is subject to appropriation, irrespective of the answer thereto, is itself a territorial sovereignty question, beyond the jurisdiction of the tribunal. Furthermore, claims relating to the definition or status of certain "rocks" clearly relate to sovereignty over these insular land territory features. The definition or status of such a feature is part and parcel of the sovereignty over it. Only after sovereignty is determined can the entitlements based on such a feature be ascertained. As a result, the dispute is beyond the scope of Part XV and the jurisdiction of the tribunal.

In addition or alternatively, the Tribunal has no jurisdiction under Article 298(1)(a) of UNCLOS because the dispute or claims presented by the Philippines have been excluded by China's 2006 optional declaration filed under Article 298 or by the Philippines' own understanding filed upon signature and confirmed on ratification of UNCLOS. Under Article 298, a State party to UNCLOS may file a declaration to exclude from the jurisdiction of compulsory procedures all disputes concerning delimitation of the territorial, the EEZ or continental shelf or involving historic bays or titles or relating to some other specified matters such as military activities. In its 2006 declaration, China excludes all the disputes that can be excluded. Accordingly, if a claim relates to delimitation or historic bays or titles, it is outside the jurisdiction of the Tribunal. Obviously a dispute on a step in the delimitation operation is a delimitation-related dispute; a question whose resolution has a bearing on the process is also such a dispute.

The Philippines' claims fall within the optional exceptions contained in China's 2006 declaration, and thus are beyond the jurisdiction of the Tribunal. When defragmented, these claims constitute in essence one big dispute on the delimitation in the South China Sea between the Philippines and China. These claims either relate to (1) definition and status of certain features and their entitlement to maritime zones which are necessary first steps in or an inherent part of, not to mention "relating to" or "concerning", a delimitation process or (2) rights and activities consequential upon delimitation.

Some of the Philippines' Claims involving the Nansha Islands and reefs stationed by China are closely related to or consequential on the status of those islands and reefs, embodying delimitation questions, or these features should be considered as part of Nansha Qundao as a unit for entitlement and delimitation purposes. Or, even if we proceed on the logic of the Philippines, each is within 200 nautical miles from another Chinese island or one claimed by China, thus giving rise to overlapping entitlements over each feature's associated areas, with each scenario necessitating delimitation. This applies similarly to the Philippines' Claims concerning Huangyan Dao (Scarborough Shoal), part of Zhongsha Qundao. Some Claims regarding or consequential on the status of the "nine dash line" constitute claims relating to delimitation or involving historic title or historic rights, since that line potentially serves as title and/or relevant circumstances in a delimitation operation.

If the above-mentioned Philippine understanding presents optional exceptions regarding sovereignty-related disputes or disputes whose resolution adversely affects its sovereignty, the Tribunal has no jurisdiction over the dispute or such sovereignty-related claims.

Finally, recent mass media reports highlight a military component of some of China's activities on the features at issue. Such activities fall within the military activities exception.

In light of the above analysis, it is clear that the Tribunal has no jurisdiction over the dispute. The Philippines would be well advised to channel its resources to other areas and its energy to negotiations with China with a view to settling the dispute.

The author is Changjiang Professor of International Law at Wuhan University's China Institute of Boundary and Ocean Studies, a member of the Institut de droit international as well as of the Bar of the US Supreme Court. This comment is based on his article, "The South China Sea Arbitration (The Philippines v. China): Potential Jurisdictional Obstacles or Objections", 13 Chinese Journal of International Law (2014), 663-739.