The Sino-Philippine Arbitration on the South China Sea Disputes: Ineffectiveness of the Award, Inadmissibility of the Claims, and Lack of Jurisdiction, with Special Reference to the Legal Arguments Made by the Philippines in the Hearing on 7-13 July 2015

Michael Sheng-ti GAU

《中国海洋法学评论》 22期 (2015/12) Pp. 90-207

摘要

The Sino-Philippine Arbitration on the South China Sea (SCS) Disputes is coming to a critical stage. On 7-13 July 2015 a Hearing was conducted to review China's informal preliminary objections demonstrated by its Position Paper released on 7 December 2014 and other jurisdiction and admissibility issues. Whether the legality issues of China's actions complained by the Philippines' Memorial can be entertained by the Arbitral Tribunal (hereinafter ＂Tribunal＂) in the merits phase will depend on what China actually responds officially before 17 August 2015 and what China may respond as reflected by academic papers published before the award on jurisdiction and admissibility is granted. This paper serves as scholarly advice as to what China may argue to challenge Philippines' oral statements at the July Hearing. It provides a comprehensive structure by answering six different levels of questions fundamental for Tribunal's ruling on jurisdiction and admissibility. These questions are: among Philippines' Submissions 1~14 (1) which Submission suffers from lack of dispute and why; (2) which Submission does not convey legal dispute and why; (3) which Submission fails to provide a dispute concerning the interpretation or application of UNCLOS and why; (4) which Submission fails to fulfill the requirements contained in Section 1 of Part XV of UNCLOS and should be deemed inadmissible for the dispute settlement mechanisms under Section 2 of Part XV to address and why; (5) which Submissions may not be entertained by the Tribunal due to application of Article 298 and why; and (6) whether Article 297 limits the jurisdiction of this Tribunal to address the Philippines' Submissions and why? Before addressing these questions, this paper raises an even more fundamental issue. So far all the academic papers commenting on the SCS Arbitration have been focusing on the jurisdiction issues of the Tribunal over the disputes submitted by the Philippines, as well as the admissibility issues concerning the claims presented by the Memorial. A critical but ignored issue is the consequences of withholding those Sino-Philippine SCS (unsubmitted) core disputes by the Philippines. Would these consequences undermine the effectiveness of the award of this Arbitration? To what extent will such consequences affect the Sino-Philippine relations in the SCS after this Arbitration is over? Having completed an in-depth research on this issue, the author concludes that the Philippines' partial submission of its multi-layered SCS disputes with China will turn the award of this Tribunal totally useless in terms of resolving the confrontations between the Parties indicated by Philippines' Memorial. It concerns the Tribunal when approaching the stage of producing the first award on the jurisdiction and admissibility issues for this case. This paper advises the Tribunal to apply Article 27(2) of its Rules of Procedure and to terminate the arbitral proceedings as its continuation is unnecessary due to such inefficacy of the award in the merits phase.

關鍵字

South China Sea Arbitration ； The Hearing on 7-13 July 2015 ； UNCLOS ； Annex VII Tribunal ； Jurisdiction and admissibility ； Res judicata ； Sino-Philippine territorial disputes in the South China Sea ； Sea boundary delimitation