Chinese Journal of International Law, Volume 13, Issue 4, December 2014, Pages 663–739, https://doi.org/10.1093/chinesejil/jmu045
This article first highlights in Part I the procedural posture of the South China Sea Arbitration (the Philippines v. China) case and the affirmative duty of the Arbitral Tribunal under Article 9 of Annex VII to the UNCLOS, faced with the absence of China, to investigate conscientiously its own jurisdiction by taking notice of all available information and materials whether or not they are submitted to the Tribunal. Part II summarizes the Philippines' claims and highlights their nature as well as the delimitation geographical framework and the delimitation situation in this matter. The Philippines “skillfully” fragments a big dispute with China into various free-standing-appearing entitlement claims and activities claims in order to conceal the sovereignty-delimitation nature of the dispute or claims. Part III discusses the jurisdictional obstacles or objections ratione temporis and ratione materiae. The dispute is outside the jurisdiction of Section 2 courts and tribunals, because it predated the entry into force of the UNCLOS with respect to China. Furthermore, the Philippines' claims are essentially land territorial sovereignty matters, not concerning the interpretation or application of the UNCLOS, or are dependent on the resolution of land territorial sovereignty claims. Part IV discusses the jurisdictional obstacles or objections based on Article 298 of the UNCLOS and China's 2006 optional exceptions declaration as well as the Philippines' related Understanding. When defragmented as they must be because of the delimitation geographical framework and/or delimitation situation, the Philippines' claims constitute one delimitation dispute with China. In any event, a dispute “concerning” the interpretation or application of the provisions on delimitation or “relating to” “delimitation” within the meaning of Article 298 has a broader scope than a delimitation dispute, however strict a reading one gives to that term. All these issues have been excluded by China from the jurisdiction of Section 2 courts and tribunals. Such a defragmentation approach must be applied by the Tribunal. In addition, the “nine dash line” claims may present disputes involving historic title or historic rights as relevant circumstances in a potential delimitation between the Philippines and China, all being excluded matters. The Philippines' Understanding may also serve to exclude this case from the Tribunal's jurisdiction. Part V summarizes the arguments made in this article.
Full text: https://doi.org/10.1093/chinesejil/jmu045