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Abstract
In the South China Sea Arbitration between the Republic of the Philippines
and the People’s Republic of China the Arbitral Tribunal constituted under
Annex VII to the United Nations Convention on the Law of the Sea on 29
October 2015 issued its Award on Jurisdiction and Admissibility. The
Tribunal rejected China’s objection that the disputes presented by the
Philippines concerned, in essence, the extent of China’s territorial sovereignty
in the South China Sea and were thus outside the Tribunal’s jurisdiction. The
Tribunal found, inter alia, that the Philippines’ submissions reflected disputes
between the parties concerning the interpretation or application of the
Convention, that there was no other State indispensable to the proceedings,
and that the Philippines had met the requirement under Article 283 of the
Convention that the parties exchange views regarding the settlement of their
disputes. This paper examines the Tribunal’s findings with regard to each and
every of the Philippines’ 15 final submissions and demonstrates that some of
its findings on the Tribunal’s jurisdiction and the admissibility of the
Philippines’ claims are seriously flawed and based on procedural irregularities.
I. Introduction
1. On 29 October 2015, the Arbitral Tribunal constituted under Annex VII of the
United Nations Convention on the Law of the Sea (“UNCLOS” or the
“Convention”) in the Arbitration between the Republic of the Philippines and the
People’s Republic of China (the “South China Sea Arbitration” or, in short, “SCS
Arbitration”) issued its Award on Jurisdiction and Admissibility.1 The arbitration
concerns disputes between the parties over maritime entitlements in the South China
Sea, the status of certain maritime features in the South China Sea and the maritime
entitlements they are capable of generating, and the lawfulness of certain actions by
3. China made it clear from the outset that it would neither accept nor participate
in the arbitral proceedings because the disputes presented by the Philippines were
outside the jurisdiction of the Tribunal. A Position Paper on the Matter of
Jurisdiction in the South China Sea Arbitration that it issued on 7 December 2014
put forward three main objections to the Tribunal’s jurisdiction.5 First, the subject-
matter of the arbitration is, in essence, “the extent of China’s territorial sovereignty in
16 Southern Bluefin Tuna (New Zealand v. Japan, Australia v. Japan) (Jurisdiction and
Admissibility, Award of 4 August 2000) 23 Reports of International Arbitral
Awards 45, para.62.
17 See SCS Arbitration, Award, paras.106, 110, 130.
18 SCS Arbitration, Award, para.148. See also ibid., para.131.
19 See SCS Arbitration, Award, para.149. See also Questions relating to the Obligation
to Prosecute or Extradite (Belgium v. Senegal), Judgment, ICJ Reports 2012, 422,
444, para.54, and 445, para.55; ibid., Provisional Measures, Order of 28 May
2009, ICJ Reports 2009, 139, 148, para.46; Application of the International
Convention on the Elimination of All Forms of Racial Discrimination (Georgia v.
Russian Federation) (hereinafter “CERD”), Preliminary Objections, Judgment, ICJ
Reports 2011, 70, 85, para.30. See further M/V “Louisa” (Saint Vincent and the
Grenadines v. Kingdom of Spain), Provisional Measures, Order of 23 December
2010, ITLOS Reports 2008-2010, 87, 88, para.6 (diss. op. Treves).
20 SCS Arbitration, Hearing, Day 3, 13 July 2015, 21: 13-15.
21 SCS Arbitration, Hearing, Day 2, 8 July 2015, 131: 4-11 and 20-21.
314 Chinese JIL (2016)
‘exists a legal dispute between the Philippines and China’ with respect to each of the
Philippines’ submissions as set out on page 271 and 272 of the Memorial”.22 On 10
July 2015, the Tribunal put six questions to the Philippines. In question 1 the
Tribunal again invited the Philippines “to direct the Arbitral Tribunal to the sources
relied upon for ascertaining China’s position with respect to each of the Philippines’ spe-
cific submissions in the context of establishing the existence of a legal dispute.”23 It is
a. Existence of a dispute
(1) Requirements for the existence of a dispute
12. The Tribunal referred to the relevant jurisprudence of the International Court of
Justice (“ICJ”) and the Permanent Court of International Justice (“PCIJ”) for the
necessary criteria to apply to determine the existence of a dispute.24 This jurispru-
dence has also been endorsed by the International Tribunal for the Law of the Sea
(“ITLOS”).25 From this jurisprudence two key requirements for the existence of a
dispute emerge.
13. First, a dispute is, as the PCIJ put it in the Mavrommatis Palestine Concessions
case, “a disagreement on a point of law or fact, a conflict of legal views or of interests
between two persons”.26 For a “conflict of legal views” to exist it is not sufficient that
certain incidents occurred between the parties. Such incidents must rather have led
the parties “to adopt clearly-defined legal positions as against each other.”27 In the
South West Africa cases, the ICJ refined the PCIJ’s definition of a “dispute” by hold-
ing that it was not “adequate to show that the interests of the two parties [. . .] are in
conflict. It must be shown that the claim of one party is positively opposed by the
other.”28 According to this definition, it does not matter which party advances a claim
22 SCS Arbitration, Hearing, Day 2, 8 July 2015, 133: 8-12 (italics added).
23 SCS Arbitration, Hearing, Day 3, 13 July 2015, 4: 3-7 (italics added).
24 See SCS Arbitration, Award, para.149. See also ibid., para.159.
25 See e.g. Southern Bluefin Tuna (New Zealand v. Japan; Australia v. Japan),
Provisional Measures, Order of 27 August 1999, ITLOS Reports 1999, 280, 293,
para.44.
26 Mavrommatis Palestine Concessions, 1924 PCIJ, Series A, No.2, 6, 11.
27 Right of Passage over Indian Territory (Merits), Judgment of 12 April 1960, ICJ
Reports 1960, 6, 34.
28 South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary
Objections, Judgment, ICJ Reports 1962, 319, 328. See also Armed Activities on
the Territory of the Congo (New Application: 2002) (Democratic Republic of the
Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, ICJ Reports 2006, 6,
40, para.90; Application of the International Convention on the Elimination of All
Talmon, The South China Sea Arbitration 315
and which one opposes it.29 What matters is that “the two sides hold clearly opposite
views”.30 Positive opposition generally requires a rejection or denial by the other
party.31 In the ARA Libertad case Judges Wolfrum and Cot stated that: “To establish
that there is a legal dispute between the Parties it [. . .] is for the Applicant [. . .] to in-
voke and argue particular provisions of the Convention which plausibly support its
claim and to show that the views on the interpretation of these provisions are posi-
tively opposed by the Respondent.”32 The test of “whether there exists a dispute is
pertinent evidence as well as the conduct of the parties both prior to and subsequent
to the commencement of the proceedings.37 For the Tribunal to find that there exists
a legal dispute between the Philippines and China with regard to each of the
Philippines’ 15 submissions, the Tribunal must thus objectively determine that a
clearly defined legal claim with regard to a particular provision of the Convention by
one of the parties is positively opposed by the other.
same holds true for “academic literature by individuals closely associated with
Chinese authorities” but not officially endorsed by the Chinese Government which
does not qualify as “official documents and statements”.49
neither made nor endorsed by the Executive; see ibid., Hearing, Day 1, 7 July 2015,
35: 15-21.
49 See SCS Arbitration, Award, para.119. See also ibid., Day 1, 7 July 2015, 41-42.
50 See SCS Arbitration, Award, para.159.
51 SCS Arbitration, Award, para.160.
52 Land and Maritime Boundary between Cameroon and Nigeria, Preliminary
Objections, Judgment, ICJ Reports 1998, 275, 315, para.89.
53 SCS Arbitration, Award, para.163.
Talmon, The South China Sea Arbitration 319
subject. It was in that situation that the Court concluded that “there existed a dispute
arising out of the interpretation or application of the Vienna Conventions”.54
23. Another case in which the ICJ inferred the existence of a dispute concerned
the violation by the United States of America of the Headquarters Agreement with
the United Nations. In 1987 the United States adopted the Anti-Terrorism Act
which required the closure of the office of the observer mission of the Palestine
54 United States Diplomatic and Consular Staff in Tehran, Judgment, ICJ Reports
1980, 3, 24-25, paras.46-47.
55 Applicability of the Obligation to Arbitrate under Section 21 of the United Nations
Headquarters Agreement of 26 June 1947, Advisory Opinion, ICJ Reports 1988,
12, 28, para.38.
56 Land and Maritime Boundary between Cameroon and Nigeria, Preliminary
Objections, Judgment, ICJ Reports 1998, 275, 315, para.89.
57 See SCS Arbitration, Award, para.160.
58 Note Verbale from the Permanent Mission of the People’s Republic of China to the
Secretary-General of the United Nations, No. CML/8/2011, 14 April 2011; quoted
in SCS Arbitration, Award, para.166 (italics added). See also China, Position Paper,
paras.4, 21 and, in particular, para.20: “The Nansha Islands comprises many mari-
time features. China has always enjoyed sovereignty over the Nansha Islands in its
entirety, not just over some features thereof”.
320 Chinese JIL (2016)
are consistent with its understanding that the Nansha Islands are to be treated as a le-
gal and geographical unit and that therefore the status of individual maritime features
is not an issue and, in particular, that no maritime zones are to be measured from in-
dividual maritime features. There was thus no reason to second-guess a Chinese posi-
tion on individual maritime features on the basis of speculative inferences from a
misquoted statement.59
bank” and not with the term “rock”. This seems to denote a distinction between is-
lands (including rocks) and low-tide elevations. In any case, China does not focus on
the status of Scarborough Shoal as such but considers Scarborough Shoal (Huangyan
Dao) as part of the Zhongsha Islands (Macclesfield Bank), one of the island groups in
the South China Sea over which it claims territorial sovereignty.66
29. The Philippines also asserted that “China has claimed that Scarborough Shoal
generates an exclusive economic zone”.67 But, there is no evidence for this assertion.
30. The Philippines’ assertion that China has claimed that Scarborough Shoal is an
island in terms of Article 121 which generates an entitlement to an EEZ and conti-
nental shelf is also not consistent with its claims in Submissions No.1 and 2. In these
Submissions the Philippines claims that China has claimed maritime entitlements in
the South China Sea based on “historic rights” contrary to “its entitlements under
Articles 3, 57, 76 and 121 of the Convention”.72 The Philippines tries to have it both
(b) Status and maritime entitlements of maritime features in the Spratly Islands
31. In its Submissions No.4 and 6 the Philippines requested the Tribunal to adjudge
and declare, inter alia, that Mischief Reef, Second Thomas Shoal, Subi Reef, Gaven
Reef, and McKennan Reef (including Hughes Reef) are low-tide elevations that do
not generate entitlement to a territorial sea, EEZ or continental shelf. In Submission
72 See SCS Arbitration, Hearing, Day 1, 7 July 2015, 34: 1-4; 37: 2-7; 50: 8-13, 19-
22; 49: 22-26; ibid., Day 2, 8 July 2015, 136: 10-12; ibid., Day 3, 13 July 2015, 6:
1-4; 13: 10-13..
73 See SCS Arbitration, Hearing, Day 1, 7 July 2015, 12-15.
74 See SCS Arbitration, Award, para.164. The Tribunal on several occasions noted
China’s “historic rights” claim; see also ibid., paras.147, 160, 168.
75 Cf. Law on the Exclusive Economic Zone and the Continental Shelf of the People’s
Republic of China, 26 June 1998, Article 14. The text of the Law can be found in
Jia and Talmon, above n.2, Annex I, Doc. A.28.
Talmon, The South China Sea Arbitration 323
No.7 the Philippines asked the Tribunal to rule that Johnson Reef, Cuarteron Reef
and Fiery Cross Reef generate no entitlement to an EEZ or continental shelf.76 The
Tribunal found that there was a dispute concerning the “status” of these eight mari-
time features as low-tide elevations within the meaning of Article 13, or as islands or
rocks within the meaning of Article 121, and “the source of maritime entitlements in
the South China Sea”.77 The Tribunal reached its finding although it noted that
[The] official Chinese charts [. . .] indicate the status, the character, the na-
ture of these various features – that is, whether they are below water, whether
they are low-tide elevations or whether they are above water at high tide – and
the Philippines considers that all of the characterisations of these features in the
Chinese charts – whether as submerged low-tide elevations or above water at
high tide – are accurate.83
83 SCS Arbitration, Hearing, Day 3, 13 July 2015, 76: 21-26, and 77: 1-3.
84 It is of interest to note that the Philippines did not repeat in its Memorial the claim
made in its Amended Statement of Claim that “China has unlawfully claimed mari-
time entitlements beyond 12 M from these features”, i.e. from Scarborough Shoal,
Johnson Reef, Cuarteron Reef and Fiery Cross Reef. See SCS Arbitration, Award,
paras.99 and 101.
85 See also Natalie Klein, The Limitations of UNCLOS Part XV Dispute Settlement
in Resolving South China Sea Disputes, 9 March 2015 (ssrn.com/ab-
stract¼2730411, 19), who points out that the “nine-dash line does not appear to
have been drawn as a result of maritime zones being generated by the disputed mari-
time features”.
86 See also Sultan M. Hali, Judicial flaws in [the] South China Sea dispute, 15 April
2016 (www.pakistantoday.com.pk/2016/04/15/comment/judicial-flaws-in-south-
china-sea-dispute/).
87 See SCS Arbitration, Award, para.147. See also above nn.71-73 and text thereto.
Talmon, The South China Sea Arbitration 325
China because, of course, China has adopted policy positions which are in direct con-
tradiction with its own charts.”88 The Philippines referred the Tribunal to the posi-
tion set out in the Note Verbale CML/8/2011 from the Permanent Mission of the
People’s Republic of China to the UN Secretary-General.89 This Note Verbale is pre-
sented as evidence for the existence of a legal dispute concerning the status and mari-
time entitlements of the eight maritime features listed in Submissions No.4, 6 and
7.90 Addressing the question of the existence of a dispute with regard to the fourth
88 SCS Arbitration, Hearing, Day 3, 13 July 2015, 70: 7-10. See also ibid., 77: 10-14.
89 Note Verbale from the Permanent Mission of the People’s Republic of China to the
Secretary-General of the United Nations, No. CML/8/2011, 14 April 2011 (www.
un.org/depts/los/clcs_new/submissions_files/ mysvnm33_09/chn_2011_re_phl_e.
pdf).
90 See SCS Arbitration, Award, para.147 nn.83, 87, 89.
91 SCS Arbitration, Hearing, Day 2, 8 July 2015, 137: 16-19, and 138: 1-6. See also
ibid., 29 n.33: “China’s Nansha [Spratly] Islands are fully entitled to Territorial Sea,
Exclusive Economic Zone (EEZ) and Continental Shelf”.
92 See SCS Arbitration, Hearing, Day 3, 13 July 2015, 68: 24-25.
93 SCS Arbitration, Hearing, Day 3, 13 July 2015, 11: 3-10. See also ibid., 14: 12-14.
326 Chinese JIL (2016)
China’s Nansha Islands is therefore clearly defined. In addition, under the rele-
vant provisions of the 1982 United Nations Convention on the Law of the Sea,
[. . .] China’s Nansha Islands is fully entitled to Territorial Sea, Exclusive
Economic Zone (EEZ) and Continental Shelf.94
The original statement shows that China was not at all concerned with the status or
maritime entitlements of individual features in the Spratly Islands but with the
94 Note Verbale from the Permanent Mission of the People’s Republic of China to the
Secretary-General of the United Nations, No. CML/8/2011, 14 April 2011, 2.
95 China, Position Paper, para.21 (italics added).
96 PRC, MFA, Foreign Ministry Spokesperson Hua Chunying’s Regular Press
Conference on March 24, 2016 (www.fmprc.gov.cn/mfa_eng/xwfw_665399/
s2510_665401/2511_665403/t1350552.shtml).
97 See SCS Arbitration, Hearing, Day 3, 13 July 2015, 39: 10-25 (apologies for a “ty-
pographical error” in the text of Article 16 of the Treaty of Amity and Cooperation
which had been provided to the Tribunal).
Talmon, The South China Sea Arbitration 327
treated one of the most important statements by China in its argument for establish-
ing the existence of a dispute in such a cavalier fashion.
40. Surprisingly, the Tribunal adopted the Philippines’ misrepresentation of
China’s position. In support of its conclusion that a dispute existed between the par-
ties concerning the status of, and the maritime entitlements generated by the mari-
time features in question, the Tribunal quoted China as having stated:
by the Convention and are thus not subject to the compulsory jurisdiction of the
Tribunal.101
101 Cf. Sophia Kopela, Dependent Archipelagos in the Law of the Sea (2013), 259.
102 SCS Arbitration, Award, para.407.
103 See SCS Arbitration, Hearing, Day 1, 7 July 2015, 8: 23-25; 23: 8-12; 59: 24; 99:
8-10; ibid., Day 2, 8 July 2015, 86: 22; and 142: 2-3; ibid., Day 3, 13 July 2015,
15: 18.
104 Cf. SCS Arbitration, Hearing, Day 3, 13 July 2015, 15: 17-22, and 16: 1-9.
105 Republic of the Philippines, Department of Foreign Affairs, Philippine position on
Bajo de Masinloc (Scarborough Shoal) and the waters within its vicinity, 18 April
2012 (www.gov.ph/2012/04/18/philippine-position-on-bajo-de-masinloc-and-the-
waters-within-its-vicinity/).
106 Ibid.
Talmon, The South China Sea Arbitration 329
46. The Philippines changed its position only for the arbitral proceedings. The
claim to traditional fishing rights is “premised” on Chinese sovereignty over
Scarborough Shoal. This premise was only accepted by the Philippines for the pur-
pose of the proceedings.107 In fact, the Philippines construed a hypothetical dispute
specifically for the proceedings.108 Against this background it is difficult to under-
stand how the Tribunal could find that a claim to traditional fishing rights by the
107 See SCS Arbitration, Hearing, Day 2, 8 July 2015, 117: 17-19: “Submissions 10
and 11 assume that Scarborough Shoal is – quod non, and only for the purpose of
these proceedings – under Chinese sovereignty”. See further ibid., Day 1, 7 July
2015, 98: 12-14; ibid., Day 2, 8 July 2015, 40: 1-6. See also ibid., Award,
paras.143, 153.
108 See below section III.2.a.
109 UNCLOS, Article 288(1).
110 See Chagos MPA Arbitration, Award, paras.215-221.
111 SCS Arbitration, Award, para.8. See also ibid., Hearing, Day 1, 7 July 2015, 8: 4-6:
“issues that lie outside your jurisdiction; namely, sovereignty over small maritime
features”.
112 SCS Arbitration, Hearing, Day 1, 7 July 2015, 12: 23-25. See also ibid., 17: 4-7;
31: 17-19; 61: 16-18 and 62: 1-2.
113 See SCS Arbitration, Award, paras.398-411.
330 Chinese JIL (2016)
114 Alan E. Boyle, Dispute Settlement and the Law of the Sea Convention: Problems of
Fragmentation and Jurisdiction, 46 International and Comparative Law Quarterly
(1997) 37, 44. See also Chagos MPA Arbitration, Hearing on Bifurcation, 11
January 2013, Final Transcript, 91: 18-19 (James Crawford for Mauritius).
115 Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, ICJ
Reports 1998, 432, 449, para.31 (italics added).
116 See Nuclear Tests (New Zealand v. France), Judgment, ICJ Reports 1974, 457,
466-467, paras.30, 31; Nuclear Tests (Australia v. France), Judgment, ICJ Reports
1974, 253, 262-263, paras.29, 30.
117 See Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment,
ICJ Reports 1998, 432, 448-449, paras.30-32.
118 SCS Arbitration, Award, para.150 (footnotes omitted).
119 Nuclear Tests (New Zealand v. France), Judgment, ICJ Reports 1974, 457, 467,
para.31; Nuclear Tests (Australia v. France), Judgment, ICJ Reports 1974, 253,
263, para.30.
120 See Chagos MPA Arbitration, Award, para.208. See also ibid., Dissenting and
Concurring Opinion by Judge James Kateka and Judge Rüdiger Wolfrum, paras.4,
6.
Talmon, The South China Sea Arbitration 331
order to determine the true object of the dispute it “must evaluate where the relative
weight of the dispute lies.” It asked whether the dispute was “primarily a matter of in-
terpretation or application” of a term of the Convention, with “the issue of sover-
eignty forming one aspect of a larger question”, or whether the dispute primarily
concerned the issue of sovereignty, with the interpretation or application of a term of
the Convention merely representing a manifestation of that dispute.121 In carrying
128 China, Position Paper, para.4. See also UN Doc. A/35/93 – S/13788, 12 February
1980, 8.
129 Judge Wolfrum asked counsel for the Philippines during the oral hearings what was
meant by the term ‘Islands’ in the context of China’s claim to sovereignty over the
South China Sea Islands (SCS Arbitration, Hearing, Day 3, 13 July 2015, 23: 1-5).
It seems that he received no answer, at least not during the oral proceedings.
130 China, Position Paper, para.19; also quoted in SCS Arbitration, Award, para 154.
See also PRC, MFA, Foreign Ministry Spokesperson Hua Chunying’s Regular Press
Conference on March 24, 2016: “China takes the Nansha Islands as a whole when
claiming maritime rights and interests” (www.fmprc.gov.cn/mfa_eng/xwfw_
665399/s2510_665401/2511_665403/ t1350552.shtml).
131 Cf. SCS Arbitration, Hearing, Day 3, 13 July 2015, 9: 2-4.
132 See SCS Arbitration, Hearing, Day 3, 13 July 2015, 18: 18-19 (italics added).
133 See PRC, MFA, Foreign Ministry Spokesperson Hua Chunying’s Regular Press
Conference on June 24, 2013 (www.fmprc.gov.cn/eng/xwfw/s2510/2511/
t1053084.shtml). See also ibid., Foreign Ministry Spokesperson Hong Lei’s Regular
Press Conference, 22 May 2013 (www.fmprc.gov.cn/eng/xwfw/s2510/2511/
t1043177.shtml).
Talmon, The South China Sea Arbitration 333
Island have always been China’s territory”.134 That the Nansha Islands are an “island
group” was made clear during Sino-Vietnamese negotiations in 1979. The Head of the
Chinese delegation and Vice Minister for Foreign Affairs said on 26 April 1979:
‘The Xisha and Nansha Islands have always been an inalienable part of China’s
territory. The Vietnamese side shall revert to its previous position of recognizing
this fact and respect China’s sovereignty over these two island groups and with-
134 See Statement of Ministry of Foreign Affairs of the People’s Republic of China,
dated 20 January 1974, UN Doc. S/11201, 21 January 1974, 2 (italics added).
135 UN Doc. A/34/219 - S/13294, 3 May 1979, 10-11 (italics added). See also UN
Doc. A/34/235 - S/13318, 14 May 1979, 10: “China’s sovereignty over these two
island groups”.
136 UN Doc. A/35/93 - S/13788, 12 February 1980, 1, 2, and 6, respectively.
137 Ibid., 3.
138 Third United Nations Conference on the Law of the Sea, Official Records, vol.
XVII, 240.
139 See e.g. UN Docs. A/53/PV.69, 24 November 1998, 36; A/52/PV.57, 26
November 1997, 21; A/49/PV.78, 6 December 1994, 16; A/37/682 - S/15505, 30
November 1982, 2; S/11201, 21 January 1974, 2.
140 See SCS Arbitration, Award, para.106 n.15.
334 Chinese JIL (2016)
The archipelagos listed in Article 2 of the Law on the Territorial Sea and the
Contiguous Zone include the “Nansha Islands”.141 These archipelagos generate their
own maritime entitlements independent of individual maritime features forming part
of these archipelagos.142
57. China’s legal position is in no way exceptional. Viet Nam has taken exactly the
same position as China with regard to the South China Sea islands. Since the late
141 See Law of the People’s Republic of China on the Territorial Sea and the
Contiguous Zone, 25 February 1992, reproduced in People’s Republic of China,
State Oceanic Administration, Department of Policy, Legislation and Planning,
Collection of the Sea Laws and Regulations of the People’s Republic of China (4th
edn., 2012), 301.
142 See ibid., Articles 2, 4.
143 On 28 September 1979 the Vietnamese Foreign Ministry issued a White Book, en-
titled “Viet Nam’s Sovereignty Over the Hoang Sa and Truong Sa Archipelagoes”;
see UN Doc. A/35/93 – S/13788, 12 February 1980, 1. See also Notes Verbales
from the Permanent Mission of the Socialist Republic of Viet Nam to the United
Nations to the UN Secretary General, No.86/HC-2009, 8 May 2009; No.240
HC-2009, 18 August 2009; and No.77/HC-2011, 3 May 2011.
144 See United Nations, Division for Ocean Affairs and the Law of the Sea, Law of the
Sea Bulletin No.28 (1995), 5.
145 See Articles 1 and 19 of The Law of the Sea of Viet Nam, adopted on 21 June 2012
(entry into force on 1 January 2013) (vietnamnews.vn/politics-laws/228456/the-
law-of-the-sea-of-viet-nam.html).
Talmon, The South China Sea Arbitration 335
areas.”146 Viet Nam, like China, claims maritime entitlements around the archipela-
gos and not around individual maritime features within these archipelagos.147
59. Prior to instituting proceedings in the present case the Philippines also claimed
sovereignty over a group of islands in the South China Sea, the so-called “Kalayaan
Island Group” (“KIG”) which partly overlaps with the Spratly Islands (Nansha
Islands; Truong Sa Archipelago).
146 See Vietnam possesses sufficient historical evidence and legal foundation to assert its
sovereignty over Hoang Sa and Truong Sa archipelagos, The Spokesman of
Ministry of Foreign Affairs Le Dzung Answers Question on 14 February 2007
(www.mofa.gov.vn/en/tt_baochi/pbnfn/ ns070214165133/view).
147 See Statement on the Territorial Sea, the Contiguous Zone, the Exclusive Economic
Zone and the Continental Shelf of 12 May 1977, para.5 (www.un.org/Depts/los/
LEGISLATIONANDTREATIES/PDFFILES/VNM_1977_Statement.pdf); and
Statement of 12 November 1982 by the Government of the Socialist Republic of
Viet Nam on the Territorial Sea Baseline of Viet Nam (www.un.org/Depts/los/
LEGISLATIONANDTREATIES/PDFFILES/VNM_1982_Statement.pdf).
148 Presidential Decree No.1596 declaring certain area part of the Philippine territory
and providing for their government and administration, s.1978, (www.gov.ph/
1978/06/11/presidential-decree-no-1596-s-1978/).
149 Municipal Government of Kalayaan, Municipal Background (www.kalayaanpala
wan.gov.ph/about_the_municipality/municipal_background.html).
150 See United Nations, Division for Ocean Affairs and the Law of the Sea, Law of the
Sea Bulletin No.4 (February 1985), 20-21; and No.5 (July 1985), 18.
336 Chinese JIL (2016)
62. The Philippines’ claim to sovereignty over the KIG is not limited to islands in
terms of Article 121(1). This becomes clear from a Note Verbale from the
Philippines to the Secretary-General of the United Nations, dated 5 April 2011,
which reads in part:
On the Islands and other Geological Features
First, the Kalayaan Island Group (KIG) constitutes an integral part of the
151 Note Verbale from the Permanent Mission of the Republic of the Philippines to the
United Nations to the Secretary-General of the United Nations, No.000228 (5
Apr. 2011) (www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/
phl_re_chn_2011.pdf).
152 See SCS Arbitration, Award, para.165.
153 Republic Act (“RA”) 9522 entitled “An Act to Amend Certain Provisions of [RA]
3046, as Amended by [RA] 5446 to Define the Archipelagic Baselines of the
Philippines and for Other Purposes” (www.gov.ph/2009/03/10/republic-act-no-
9522/).
154 Magallona v. Ermita, G.R. No 187167, 16 July 2011; reproduced as Magallona
and ors v. Ermita and ors, Petition for certiorari and prohibition, G.R. No.187167,
reported in Oxford Reports on International Law in Domestic Courts (“ILDC”)
2758 (PH 2011), 16 July 2011, Philippines, Supreme Court.
Talmon, The South China Sea Arbitration 337
is exactly the situation in the present case. The historic record shows that the
Philippines’ claim to territorial sovereignty over the Kalayaan Island Group partly
overlaps with China’s claim to territorial sovereignty over the Nansha Islands. Since
the 1970s, the Philippines has claimed territorial sovereignty over the KIG as a whole,
including several “geographical features” which it now claims “are not features that
are capable of appropriation by occupation or otherwise”.164 By claiming, for exam-
(i) Capability of appropriation of the low-tide elevations of Mischief Reef, Second Thomas
Shoal and Subi Reef
71. In Submission No.4 the Philippines requested the Tribunal to adjudge and de-
clare that
Mischief Reef, Second Thomas Shoal and Subi Reef are low-tide elevations that
do not generate entitlement to a territorial sea, exclusive economic zone or con-
As regards low-tide elevations, they form part of the seabed and subsoil [. . .].
To determine whether a particular feature is a low-tide elevation does not re-
quire you to determine which state, if any, has sovereignty or sovereign rights
over it.175
75. The Tribunal may not positively have to determine which State has sovereignty
over a particular low-tide elevation, but by ruling that Mischief Reef, Second Thomas
175 SCS Arbitration, Hearing, Day 1, 7 July 2015, 77: 2-3, 10-13. See also ibid., 83:
25-26.
176 Maritime Delimitation and Territorial Questions between Qatar and Bahrain,
Merits, Judgment, ICJ Reports 2001, 40, 101, para.205.
177 Ibid., 102, para.205 (italics added).
178 Ibid., 102, para.206 (italics added).
179 Eritrea v. Yemen (First Stage – Territorial Sovereignty and Scope of the Dispute) 22
Reports of International Arbitral Awards (1998), 209, 330, para.527.
180 Robert Kolb, Case Law on Equitable Maritime Delimitation: Digest and
Commentaries (2003), 544.
181 Maritime Delimitation and Territorial Questions between Qatar and Bahrain,
Merits, Judgment, ICJ Reports 2001, 119, 124, para.7 (sep. op. Oda).
182 Request for Further Written Argument by the Philippines Pursuant to Article 25(2)
of the Rules of Procedure, 16 December 2014, Question 18.
342 Chinese JIL (2016)
referring to the jurisprudence of the ICJ, replied that it was “crystal clear from the
consistent body of case law on this matter” that low-tide elevations did not constitute
land territory and were not subject to appropriation.
78. But, the ICJ’s ruling on the matter is less than crystal clear. The ICJ did not
find any support in State practice that gave rise to a customary rule which unequivo-
cally “exclude[d]” the appropriation of low-tide elevations thus leaving open the pos-
take nationally the same approach with regard to sovereignty over low-tide elevations
such as Mischief Reef as they were presenting to the Tribunal.187 This fact, however,
is not reflected in the Tribunal’s Award.
79. Irrespective of whether or not State practice has given rise to a rule of custom-
ary international law governing the appropriation, vel non, of low-tide elevations, the
question is one of general international law and not a matter for the interpretation or
(ii) Mischief Reef and Second Thomas Shoal as part of the Philippines’ EEZ and continental
shelf
80. Similar problems arise with regard to Submission No.5 in which the Philippines
requested the Tribunal to adjudge and declare that “Mischief Reef and Second
Thomas Shoal are part of the exclusive economic zone and continental shelf of the
Philippines”.189 For the Tribunal the Submission reflected
a dispute concerning the sources of maritime entitlements in the South China
Sea and whether a situation of overlapping entitlements to an exclusive eco-
nomic zone or to a continental shelf exists in the area of Mischief Reef and
Second Thomas Shoal. This [. . .] is not a dispute concerning sovereignty over
the feature [sic], notwithstanding any possible question concerning whether
low-tide elevations may be subjected to a claim of territorial sovereignty.190
The Tribunal indicted that it could “declare that these features form part of the exclu-
sive economic zone and continental shelf of the Philippines” if no overlapping EEZ
or continental shelf entitlements existed.191
81. Any ruling that these features form part of the EEZ and continental shelf of
the Philippines logically excludes territorial sovereignty over these features in particu-
lar and the Nansha Islands as a whole in general. Although the Tribunal would not
positively determine which State has sovereignty over Mischief Reef and
187 See SCS Arbitration, Hearing, Day 1, 7 July 2015, 84:16-22 (Judge Wolfrum). The
question of whether the Philippines nationally asserted sovereignty over low-tide ele-
vations in the Kalayaan Island Group such as Mischief Reef was not addressed by
counsel for the Philippines in its reply to Judge Wolfrum’s question; see ibid., Day
2, 8 July 2015, 3-6.
188 Cf. SCS Arbitration, Hearing, Day 2, 8 July 2015, 137: 9-19, and 138: 1-8; ibid.,
Award, para.401.
189 SCS Arbitration, Award, para.101 (Submission No.5).
190 SCS Arbitration, Award, para.402.
191 Ibid.
344 Chinese JIL (2016)
Second Thomas Shoal, its ruling would prejudice and prejudge China’s (or any
other State’s) claim to sovereignty over these features and the Nansha Islands as a
whole.192 By ruling that these features are part of the EEZ and continental shelf of
the Philippines it would indirectly rule on a question of territorial sovereignty which
is outside its jurisdiction. The Philippines’ argument that it is the location of the fea-
ture and thus the law of the sea that determines whether it is subject to a claim of na-
tional sovereignty is inconsistent with the sequence of its own Submissions.193 The
192 Cf. also Antonios Tzanakopoulos, Resolving Disputes over the South China Sea un-
der the Compulsory Dispute Settlement System of the UN Convention on the Law
of the Sea, 8 (ssrn.com/ abstract¼2772659).
193 See SCS Arbitration, Hearing, Day 1, 7 July 2015, 82: 21-24. See also ibid., 83: 5-
8.
194 SCS Arbitration, Award, para.101 (Submission No.14).
195 SCS Arbitration, Award, para.411.
Talmon, The South China Sea Arbitration 345
88. In the “Annex of Issues the Philippines May Wish to Address at November
Hearing”, the Tribunal asked the Philippines about “the source, within the
Convention, of any legal duty not to interfere with traditional fishing rights.”208 In its
answer the Philippines referred the Tribunal to Article 2(3) of the Convention which
provides that the “sovereignty over the territorial sea is exercised subject to this
Convention and to other rules of international law.”209 According to the Philippines
208 SCS Arbitration, Hearing on the Merits and Remaining Issues of Jurisdiction and
Admissibility, Day 2, 25 November 2015, 164: 2-6 (italics added). Reference is
made to the Letter from the Permanent Court of Arbitration to the Parties dated 10
November 2015, Annex of Issues the Philippines May Wish to Address at
November Hearing.
209 SCS Arbitration, Hearing on the Merits and Remaining Issues of Jurisdiction and
Admissibility, Day 2, 25 November 2015, 164: 7-11.
210 See SCS Arbitration, Hearing on the Merits and Remaining Issues of Jurisdiction
and Admissibility, Day 2, 25 November 2015, 165: 13-17. See also ibid., Hearing,
Day 2, 8 July 2015, 142: 3-4.
211 Chagos MPA Arbitration, Award, para.516.
212 Chagos MPA Arbitration, Award, para.517.
213 Chagos MPA Arbitration, Dissenting and Concurring Opinion by Judge James
Kateka and Judge Rüdiger Wolfrum, para.94.
348 Chinese JIL (2016)
the obligation to respect fishing rights in the territorial sea were still considered to be
open, it would have been for the Tribunal to decide this question at the jurisdictional
stage. The abstract legal question of whether the term “other rules of international
law” in Article 2(3) refers only to the “general rules of international law” or also
encompasses obligations arising from specific rules of international law possesses an
exclusively preliminary character which must be decided as a preliminary question.214
214 See SCS Arbitration, Rules of Procedure, 27 August 2013, Article 20(3).
215 Cf. Monetary Gold Removed from Rome in 1943 (Italy v. United Kingdom and
United States of America), Preliminary Question, Judgment, ICJ Reports 1954, 19,
32.
216 Ibid., 32. This test has been repeated by the ICJ in subsequent decisions such as
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), Jurisdiction and Admissibility, Judgment, ICJ Reports 1984,
392 at 431, para 88; Land, Island and Maritime Frontier Dispute (El Salvador/
Honduras), Application to Intervene, Judgment, ICJ Reports 1990, 92, 116,
para.56, and 122, para.73; Certain Phosphate Lands in Nauru (Nauru v. Australia),
Preliminary Objections, Judgment, ICJ Reports 1992, 240, 258-62, paras.48-55;
East Timor (Portugal v. Australia), Judgment, ICJ Reports 1995, 90, 102-5,
para.28-35; Armed Activities on the Territory of the Congo (Democratic Republic
of the Congo v. Uganda), Judgment, ICJ Reports 2005, 168, 236-238, paras.197-
204.
217 See SCS Arbitration, Award, paras.179-188, 123.
Talmon, The South China Sea Arbitration 349
nations.218 However, during the oral hearing in July 2015 it declared the question of
whether any third parties are indispensable to the proceedings “to be a non-issue”.219
93. Viet Nam’s position was equally inconsistent. In April 2014, Viet Nam sent a
Note Verbale to the Tribunal requesting to be furnished with any documents relevant
to the proceedings because its ‘legal interests and rights may be affected’ by the arbi-
tration.220 It also reserved the right to intervene in the proceedings,221 but ultimately
not dependent upon the views – legal or political – of either the applicant or any third
State.
95. The Tribunal found that “Viet Nam is not an indispensable third party and
that its absence as a party does not preclude the Tribunal from proceeding with the
arbitration.”228 But this finding is, again, based on the Tribunal focusing on individ-
ual maritime features in the Spratly Islands, rather than on the Spratly Islands as an is-
land group.229 Viet Nam, however, like China, does not claim sovereignty over
233 Chagos MPA Arbitration, Award, para.160. See also SCS Arbitration, Award,
paras.189, 192; and M/V “Louisa” (Saint Vincent and the Grenadines v. Kingdom
of Spain), Verbatim Record, 8 October 2012, ITLOS/PV.12/C18/6/ Rev.1, 18:
46-48 (Spain).
234 Chagos MPA Arbitration, Award, 378.
235 M/V “Louisa” (Saint Vincent and the Grenadines v. Kingdom of Spain),
Provisional Measures, Order of 23 December 2010, ITLOS Reports 2008-2010,
77, 85, para.28 (diss. op. Wolfrum), 87, 89-90, para.9 (diss. op. Treves).
236 Land Reclamation in and around the Straits of Johor (Malaysia v. Singapore),
Provisional Measures, Order of 8 October 2003, ITLOS Reports 2003, 36, 39,
para.11 (sep. op. Rao).
237 Cf. Chagos MPA Arbitration, Award, paras.381, 382. See also “Arctic Sunrise”
(Kingdom of the Netherlands v. Russian Federation), Provisional Measures, Order
of 22 November 2013, ITLOS Reports 2013, 230, 254, para.3 (decl. Anderson).
238 See Chagos MPA Arbitration, Award, para.382.
239 See Chagos MPA Arbitration, Award, para.378. See also ibid., para.383, and
Dissenting and Concurring Opinion by Judge James Kateka and Judge Rüdiger
Wolfrum, para.66. See further “Arctic Sunrise” (Kingdom of the Netherlands v.
Russian Federation), Merits, Award of 14 August 2015, para.151.
352 Chinese JIL (2016)
claims and directly opposed counter-claims.”240 Article 283 obliges States to indicate
a view on the most appropriate means of settlement of their dispute.
99. The exchange of views must relate to the specific dispute or disputes forming
part of the proceedings. The Philippines had argued that
(1) it is not necessary to exchange views on the substance of each and every
submission per se; (2) as long as there has been an exchange of views on the gen-
240 Cf. Application of the International Convention on the Elimination of All Forms of
Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections,
Judgment, ICJ Reports 2011, 70, 132, para.157. See also China’s observation that
the exchanges between the parties pertained to “responding to incidents at sea in the
disputed areas and promoting measures to prevent conflicts, reduce fictions, main-
tain stability in the region, and promote measures of cooperation” (China, Position
Paper, para.47).
241 SCS Arbitration, Hearing, Day 2, 8 July 2015, 33: 23-25, and 35: 1-6; also quoted
ibid., Award, para.331.
242 SCS Arbitration, Hearing, Day 2, 8 July 2015, 34: 21-22. See in particular ibid., 33
n.41, and 34 n.43.
243 Maritime Delimitation (Guyana v. Suriname), Jurisdiction and Merits, Award of 17
September 2007, 47 ILM (2008) 166, 225, para.410.
244 See ibid., 184, para.151.
245 Ibid., 225, para.410 (italics added).
Talmon, The South China Sea Arbitration 353
Mauritius and the United Kingdom had discussed the proposed MPA. In the discus-
sions Mauritius had only expressed general reservations about the MPA without ever re-
ferring to UNCLOS or its Articles 2(3) and 56(2). The Chagos Tribunal considered
it to be settled international law that ‘it is not necessary that a State must ex-
pressly refer to a specific treaty in its exchanges with the other State to enable it
later to invoke that instrument,’ but that ‘the exchanges must refer to the
106. There is, however, no record of any exchange of views regarding the settlement,
for example, of the dispute in Submission No.10 concerning the interference by
China “with traditional fishing activities” of Philippine fishermen within a Chinese
territorial sea around Scarborough Shoal. This is not surprising as the “dispute” con-
cerning Philippine traditional fishing rights is purely hypothetical.257 The record pre-
sented by the Philippines shows that the dispute and any exchange of views
1. New claims
a. Formal amendment of the Statement of Claim
110. Article 19 of the Tribunal’s Rules of Procedure provides that “[d]uring the course
of the arbitral proceedings a Party may, if given leave by the Arbitral Tribunal to do so,
amend or supplement its written pleadings.” On 28 February 2014, more than one
year after the submission of its Statement of Claim and only 30 days before its
Memorial was due,264 the Philippines applied for leave to amend its original Statement
of Claim. The application added a request to determine the status pursuant to the
Convention of one additional feature, Second Thomas Shoal, and asked the Tribunal
to declare that China’s “exclusion of Philippine vessels from Second Thomas Shoal, vio-
late the sovereign rights of the Philippines”.265 On 11 March 2014, the Tribunal
granted the requested leave pursuant to Article 19 of the Rules of Procedure and ac-
cepted the Philippines’ Amended Statement of Claim.266 Only the first part of the
262 Oil Platforms (Islamic Republic of Iran v. United States of America), Judgement,
ICJ Reports 2003, 161, 177, para.29.
263 See SCS Arbitration, Hearing, Day 2, 8 July 2015, 131: 4-7.
264 This may be considered a classic example of guerrilla tactics in international
arbitration.
265 See SCS Arbitration, Award, para.99 (bullet point 4).
266 See SCS Arbitration, Award, para.43.
Talmon, The South China Sea Arbitration 357
112. Only a few days after the first navigational incident at Second Thomas Shoal,
on 29 March 2014 another Philippine vessel with “Reuters and other media invited
onboard” provoked a further incident with Chinese coast guard vessels at Second
Thomas Shoal watched by a “U.S. navy plane [and] a Philippine military aircraft”.272
On both occasions, the Philippines wrote to the Tribunal regarding “China’s most re-
cent actions in and around Second Thomas (Ayungin) Shoal” and expressed concern
“about its ability to resupply its personnel”.273
272 See Philippine ship dodges China blockade to reach South China Sea outpost,
Reuters, 31 March 2014 (www.reuters.com/article/us-philippines-china-reef-
idUSBREA2U02720140331); China-Philippines navy spat captured on camera,
BBC News, 30 March 2014 (www.bbc.com/news/world-asia-26806924).
273 See SCS Arbitration, Award, paras.44, 46.
274 See SCS Arbitration, Award, para.99 (bullet point 4).
275 SCS Arbitration, Award, para.101 (Submission No.14) (italics added).
276 Cf. South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa),
Preliminary Objections, Judgment, ICJ Reports 1962, 319, 344; Questions relating
to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, ICJ
Reports 2012, 422, 444, para.54; M/V “Louisa” (Saint Vincent and the Grenadines
v. Kingdom of Spain), Judgment, ITLOS Reports 2013, 4 at 46, para.151; and
ibid., Provisional Measures, Order of 23 December 2010, ITLOS Reports 2008-
2010, 87, 88, para.6 (diss. op. Treves).
Talmon, The South China Sea Arbitration 359
the existence of a dispute is thus 22 January 2013. This date is also relevant for any
new claim of the amendment of an existing claim.277 In order to consider a dispute in
all its aspects a court or tribunal may also deal with a submission that is based on
“facts subsequent to the filing of the Application, but arising directly out of the ques-
tion which is the subject-matter of that Application.”278 In the present case, the facts
did not arise directly out of a question which was the subject-matter of the
Rights under the Rules of Procedure, including the right to amend the pleadings,
thus constitute rights recognized in the Convention.
116. The Philippines amended its Statement of Claim requesting the Tribunal to
declare that China’s “exclusion of Philippine vessels from Second Thomas Shoal” vio-
lated the sovereign rights of the Philippines at a time when no vessel had ever been ex-
cluded from Second Thomas Shoal. In addition, it modified the amended claim
284 SCS Arbitration, Notification and Statement of Claim of the Republic of the
Philippines, 22 January 2013, para.31.
285 Ibid., para.41. See also SCS Arbitration, Award, para.99.
286 SCS Arbitration, Award, paras.7, 101.
287 SCS Arbitration, Award, para.99 (bullet point 3).
288 SCS Arbitration, Award, para.99 (bullet point 4).
289 SCS Arbitration, Award, para.99 (bullet point 5).
290 SCS Arbitration, Award, para.99 (bullet point 6).
Talmon, The South China Sea Arbitration 361
but more likely a sign that the Philippines used the arbitration first and foremost for
political point-scoring.
120. The following table shows how the Philippines changed the content and
meaning of several submissions. The numbers in square brackets at the beginning of
each claim refer to the bullet point of the Relief Sought in the Amended Statement of
Claim and to the number of the final submission in the Memorial.
These changes go beyond a mere modification of language not affecting the substance
of the submissions contained in the Statement of Claim and, at least in part, consti-
tute new submissions.
121. Besides the restatement and expansion of existing claims, the Philippines intro-
duced in its Memorial several new claims which were not set out or even foreshadowed
in its Amended Statement of Claim. In the final submissions as set out in its Memorial,
not refer to any violation of obligations under the Convention to protect and preserve
the marine environment.302
123. The Philippines’ claim with regard to the violation by China of its obligation
to protect and preserve the marine environment was detailed as follows:
‘China’s toleration, encouragement of and failure to prevent environmentally
destructive fishing practices at Scarborough Shoal and Second Thomas Shoal vi-
302 Coastal States also do not exercise over the continental shelf any sovereign rights for
the purpose of protecting or preserving the marine environment; see UNCLOS,
Article 77(1).
303 SCS Arbitration, Hearing, Day 2, 8 July 2015, 95: 6-22.
304 See SCS Arbitration, Hearing, Day 2, 8 July 2015, 87: 5-9; 21-22.
305 See SCS Arbitration, Hearing, Day 3, 13 July 2015, 16: 11-17, ibid., Day 2, 8 July
2015, 99: 18-19, and 110: 12-14.
306 SCS Arbitration, Hearing, Day 2, 8 July 2015, 104: 20-24, and 105: 1-3.
Talmon, The South China Sea Arbitration 365
reefs represent; (c) to protect and preserve endangered species found in the reefs;
(d) to apply a precautionary approach in all these respects; and finally (e) to con-
sult and cooperate with the Philippines and other relevant states in the manage-
ment of the biological resources, ecosystems and marine environment of all of
the reef systems in the South China Sea.307
At the merits stage the Philippines asserted the violation by China of all these obliga-
307 SCS Arbitration, Hearing, Day 2, 8 July 2015, 97: 1-12. See also, ibid., Hearing on
the Merits and Remaining Issues of Jurisdiction and Admissibility, Day 3, 26
November 2015, 22-34.
308 See e.g. SCS Arbitration, Hearing on the Merits and Remaining Issues of
Jurisdiction and Admissibility, Day 3, 26 November 2015, 21: 10-11; 34: 4-12.
309 SCS Arbitration, Award, para.19.
310 Note Verbale No.13-0211 from the Department of Foreign Affairs of the Republic
of the Philippines to the Embassy of the People’s Republic of China, Manila, dated
22 January 2013. For the Philippines’ view of the purpose of the arbitral proceed-
ings, see also the opening statement before the Tribunal of the Philippine Secretary
of State, Albert F. del Rosario: SCS Arbitration, Hearing, Day 1, 7 July 2015: 12:
25-26; 13: 1, 11-26; 14: 1-7, 12-17; 15: 3-5, 14-21; 16: 25-26; and 17: 1-2.
311 SCS Arbitration, Rules of Procedure, 27 August 2013, preamble, para.5. This de-
scription of the dispute can also be found in all Press Releases of the PCA on the
Arbitration between the Republic of the Philippines and the People’s Republic of
China; see e.g. PCA Press Release, The Arbitral Tribunal Requests Further Written
argument form the Philippines, 17 December 2014 (www.pcacases.com/web/
sendAttach/1295).
366 Chinese JIL (2016)
126. An applicant is not entitled to change its claims at will during the course of
the proceedings. The Philippines in its Statement of Claim expressly “reserve[d] the
right to supplement and/or amend its claims and the relief sought as necessary”.312
However, the fact that an applicant has reserved “the right to supplement or to
amend this Application”313 has not, for example, prevented the ICJ and the PCIJ
from examining whether a new claim is admissible.314
312 SCS Arbitration, Notification and Statement of Claim of the Republic of the
Philippines, 22 January 2013, para.43.
313 See e.g. Certain Phosphate Lands in Nauru (Nauru v. Australia), Application of
Nauru, 19 May 1989, para.50; Territorial and Maritime Dispute between
Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras),
Application of the Republic of Nicaragua, 8 December 1999, para.8.
314 See Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary
Objections, Judgment, ICJ Reports 1992, 240, 262-267; Territorial and Maritime
Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v.
Honduras), Judgment, ICJ Reports 2007, 659, 694-697.
315 See e.g. Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v.
Belgium), Judgment, ICJ Reports 2002, 3, 16, para.36; Certain Phosphate Lands in
Nauru (Nauru v. Australia), Preliminary Objections, Judgment, ICJ Reports 1992,
240, 267, para.70; Société Commerciale de Belgique, Judgment of 15 July 1939,
PCIJ Series A/B No.78, 160, 173.
316 Cf. Administration of the Prince von Pless (Preliminary Objections), Order of 4
February 1933, PCIJ Series A/B, No.52, 11, 14; Certain Phosphate Lands in
Nauru (Nauru v. Australia), Preliminary Objections, Judgment, ICJ Reports 1992,
240, 267, para.69; Ahmadou Sadio Diallo (Republic of Guinea v. Democratic
Republic of the Congo), Merits, Judgment, ICJ Reports 2010, 639, 656, para.39.
Talmon, The South China Sea Arbitration 367
justice”.317 This is confirmed by the fact that similar provisions can be found both in
the Statute and Rules of the ITLOS318 and the PCA Arbitration Rules.319
128. According to Article 1 of Annex VII a dispute may be submitted to an Annex
VII tribunal by written notification. This notification “shall be accompanied by a
statement of claim and the grounds on which it is based”.320 The requirement that
the subject of the dispute must be indicated with the greatest possible precision in the
131. In the Diallo case, the ICJ held that a claim that appeared for the first time in
the Reply was inadmissible. Guinea had asked the Court in its Application to “order
the authorities of the Democratic Republic of the Congo to make an official public
apology to the State of Guinea for the numerous wrongs done to it in the person of its
national Ahmadou Sadio Diallo”.329 The Application listed arrest, detention and ex-
pulsion measures taken against Mr. Diallo in 1995-1996. In its Reply, Guinea for the
329 Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo),
Merits, Judgment, ICJ Reports 2010, 639, 647, para.12 (italics added).
330 Ibid., 653, para.28.
331 Ibid., 657, para.43.
332 Ibid., 658-659, para.46.
333 See e.g. Gudmundur Eiriksson, The International Tribunal for the Law of the Sea
(2000), 156-157. But see also M/V “Saiga” (No.2) (Saint Vincent and the
Grenadines v. Guinea), Provisional Measures, Order of 11 March 1998, ITLOS
Reports 1998, 24, 38, para.33.
334 M/V “Louisa” (Saint Vincent and the Grenadines v. Kingdom of Spain),
Application of Saint Vincent and the Grenadines, 23 November 2010, 2.
370 Chinese JIL (2016)
and 303 of the Convention”.335 The Tribunal considered that “this reliance on article
300 of the Convention generated a new claim in comparison to the claims presented
in the Application; it is not included in the original claim.”336 The Tribunal observed
that
it is a legal requirement that any new claim to be admitted must arise directly
out of the application or be implicit in it [. . .] while the subsequent pleadings
335 See M/V “Louisa” (Saint Vincent and the Grenadines v. Kingdom of Spain),
Judgment, ITLOS Reports 2013, 4, 20, para.43 (italics added).
336 Ibid., 44 para.142.
337 Ibid., 44, paras.142, 143.
338 Ibid., 45, para.150. See also ibid., 88, para.112 (sep. op. Ndiaye). For the opposite
view, see ibid., 126-129, paras. 9-16 (sep. op. Kateka).
339 Cf. Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary
Objections, Judgment, ICJ Reports 1992, 240, 265-266, para.65.
Talmon, The South China Sea Arbitration 371
original claim. These environmental claims were neither “implicit” in the Statement
of Claim, nor did their “arise directly” out of the dispute over the maritime jurisdic-
tion of the Philippines in the South China Sea which had been identified both by the
Philippines and the Tribunal as the subject matter of the dispute set out in the
Statement of Claim.340 As the ICJ pointed out, it would be particularly odd to regard
a new claim as “arising directly” out of the issue forming the subject-matter of the
2. Hypothetical disputes
136. It is not the function of international courts and tribunals to decide purely hypo-
thetical disputes. The ICJ stated in the Northern Cameroons case:
There are inherent limitations on the exercise of the judicial function which the
Court, as a court of justice, can never ignore. There may thus be an incompati-
bility between the desires of an applicant, or, indeed, of both parties to a case,
on the one hand, and on the other hand the duty of the Court to maintain its
judicial character. [. . .]
The function of the Court is to state the law, but it may pronounce judg-
ment only in connection with concrete cases where there exists at the time of
the adjudication an actual controversy involving a conflict of legal interests be-
tween the parties. The Court’s judgment must have some practical consequence
340 For examples of submissions implicit in or arising directly out of the question which
forms the subject matter of the application, see Temple of Preah Vihear (Cambodia
v. Thailand), Merits, Judgment of 15 June 1962, ICJ Reports 1962, 6, 36; Fisheries
Jurisdiction (Federal Republic of Germany v. Iceland), Merits, Judgment, ICJ
Reports 1974, 175, 203, para.72; Arrest Warrant of 11 April 2000 (Democratic
Republic of the Congo v. Belgium), Judgment, ICJ Reports 2002, 3, 16, para.36;
Territorial and Maritime Dispute between Nicaragua and Honduras in the
Caribbean Sea (Nicaragua v. Honduras), Judgment, ICJ Reports 2007, 659, 697,
para.114.
341 Cf. Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the
Congo), Merits, Judgment, ICJ Reports 2010, 639, 658-659, para.46.
372 Chinese JIL (2016)
in the sense that it can affect existing legal rights or obligations of the parties,
thus removing uncertainty from their legal relations.342
The dispute between the parties must be “a real one”. A claim concerning a hypothet-
ical question or situation is not a “dispute” and must be declared inadmissible.343
137. China argued that “[i]f the sovereignty over a maritime feature is undecided,
there cannot be a concrete and real dispute for arbitration as to whether or not the mar-
least the late 1970s sovereignty over Scarborough Shoal.349 Even while the proceed-
ings were going on, the Philippines continued to claim Scarborough Shoal as “an in-
tegral part of the Philippine territory”. For example, in a lecture on the “West
Philippine Sea issue” on 10 March 2014, Philippine Secretary of Foreign Affairs
Albert F del Rosario stated:
Now we go back to our question, what is the extent of Philippine territory? It is
349 See Republic of the Philippines, Department of Foreign Affairs, Philippine Position
on Bajo de Masinloc (Scarborough Shoal) and the Waters Within its Vicinity, 12
April 2012 (www.gov.ph/2012/04/18/philippine-position-on-bajo-de-masinloc-
and-the-waters-within-its-vicinity/). See also Philippine Supreme Court, Magallona
v. Ermita, G.R. No.187167, 16 July 2011, ILDC 2758 (PH 2011), para.28: “the
Philippines has consistently claimed sovereignty over [. . .] the Scarborough Shoal
for several decades”. See further SCS Arbitration, Hearing, Day 1, 7 July 2015, 44:
1-2; ibid., Day 2, 8 July 2015, 30 n.36.
350 Secretary del Rosario delivers lecture on West Philippine Sea issue, 12 March 2014
(www.gov.ph/2014/03/12/secretary-del-rosario-delivers-lecture-on-west-philippine-
sea-issue/).
351 See SCS Arbitration, Hearing, Day 1, 7 July 2015, 8: 23-25.
352 Congressional Record, 16th Congress, Second Regular Session, House of
Representatives, Vol 1, No.10a, 27 August 2014, 8, (www.congress.gov.ph/down
load/congrec/16th/2nd/16C_2RS-10a-082714.pdf).
353 NAMRIA and UP launch Phl’s 1st ever book on Bajo de Masinloc, Republic of the
Philippines Department of Environment and National Resources, National
Mapping and Resources Authority, Newscoop, vol. XXVI, No.75, 1 December
374 Chinese JIL (2016)
hearings on the merits in the SCS Arbitration is also most revealing in this respect.
While in the courtroom the Philippines presented “a circa 1784 map” showing
Scarborough Shoal as evidence for “the long use of Scarborough Shoal by Filipino
fishermen”,354 the Bulletin of the Deputy Presidential Spokesperson on Day 2 of the
Hearing on the Merits stated that “A map from 1784 was presented to prove that
Bajo de Masinloc has always been part of the Philippines.”355
2014 (www.namria.gov.ph/Downloads/Publications/NewsScoop/2014decNo75.
pdf).
354 SCS Arbitration, Hearing on the Merits and Remaining Issues of Jurisdiction and
Admissibility, Day 2, 25 November 2015, 175: 5-14.
355 Bulletin No.3 of Deputy Presidential Spokesperson Abigail Valte on Day 2 of the
Hearing on the Merits, Released at 9:50pm (Netherlands time), on 25 November
2015 (www.gov.ph/2015/11/26/bulletin-no-3-day-2-of-the-hearing-on-the-merits/).
356 Cf. China, Position Paper, para.49: “The issue of Huangyandao [Scarborough
Shoal] is an issue of territorial sovereignty”.
357 Cf. Interpretation of Judgments Nos.7 and 8 concerning the Case of the Factory at
Chorzow, PCIJ, Series A, No.13, 4, 20.
358 See UNCLOS, Annex VII, Article 11.
Talmon, The South China Sea Arbitration 375
143. The Tribunal is the guardian of its judicial integrity and must discharge the
duty to safeguard its judicial function. Any adjudication devoid of purpose is outside
the judicial function of the Tribunal. In cases where it is evident – as in the present
case – that the judicial function cannot be engaged by a submission and where the
Tribunal’s judicial function is, in fact, abused in order “to provide a basis for political
action”,359 the submission must be declared inadmissible.360
could only rule on Submissions No.5, 8 and 9 if it determined that China could not
possess any potentially overlapping entitlement in the Spratlys.364
146. The question of potentially overlapping Chinese maritime entitlements de-
pends on Chinese sovereignty over the islands in the Spratlys. Sovereignty over the
maritime features in the South China Sea is, however, disputed between several
States, including China, the Philippines and Viet Nam. In order to determine
insular features within the Spratly Islands, irrespective of whether or not such features
are currently occupied by China.370 As the Philippines pointed out, there are more
than 750 features in the Spratly Islands and all are claimed by China.371 The
Philippines considered it to be ‘unmanageable’ to determine the nature of so many
features.372 Even if, in practice, the task is limited to the main insular features such as
Taiping (Itu Aba) Island, Zhongye (Thitu) Island and several other islands this ap-
374 Jules Basdevant, Quelques mots sur les “conclusions” en procédure internationale,
in: Scritti di Diritto Internazionale in onore di Tomaso Perassi, Volume I (1957),
173, 177. See also Omar Aslaoui, Les Conclusions et leurs Modifications en
Procédure Judiciaire Internationale (1963), 38.
375 Union Académique Internationale, Dictionnaire de la terminologie du droit interna-
tional (1960), 141; as quoted in Shabtai Rosenne, The Law and Practice of the
International Court, 1920-2005, Volume III: Procedure (2006), 1226. See also
Jean Salmon, Dictionnaire de droit international public (2001), 225.
376 Rosenne (above n.375), 1336. See also ibid., 1227.
377 Juan José Quintana, Litigation at the International Court of Justice: Practice and
Procedure (2015), 365.
378 SCS Arbitration, Award, para.101 (Submission No.15).
379 SCS Arbitration, Hearing, Day 1, 7 July 2015, 58: 3-5.
380 SCS Arbitration, Award, para.147; ibid., Day 2, 8 July 2015, 133: 17-18.
Talmon, The South China Sea Arbitration 379
are fully admissible.”381 The Philippines emphasized that all issues of jurisdiction argued
during the Hearing “could and should be resolved at this stage of the proceedings.”382
153. The Tribunal initially stated in its Award that it was “satisfied that disputes
[. . .] exist with respect to the matters raised by the Philippines in all of its
Submissions in these proceedings”.383 This was later reversed in the Tribunal’s con-
clusions on its jurisdiction. The relevant paragraph of the conclusions on Submission
381 SCS Arbitration, Award, para.102; ibid., Day 3, 13 July 2015, 80: 9-15.
382 SCS Arbitration, Hearing, Day 3, 13 July 2015, 28: 3-4. See also ibid., Award,
para.388.
383 SCS Arbitration, Award, para.178 (italics added).
384 SCS Arbitration, Award, para.412 (bold in original; italics added). See also ibid.,
para.413.I.
385 Arbitration between the Republic of the Philippines and the People’s Republic of
China: Arbitral Tribunal Establishes Rules of Procedure and Initial Timetable, PCA
Press Release, 27 August 2013 (italics added). See also SCS Arbitration, Award,
para.39.
386 See PCA, Arbitration between the Republic of the Philippines and the People’s
Republic of China, Press Releases of 3 June 2014 and 17 December 2014.
380 Chinese JIL (2016)
387 See Philippines, Department of Foreign Affairs, Statement of Secretary Albert F. del
Rosario on the Submission of the Philippines’ Memorial to The Arbitral Tribunal,
30 March 2014 (www.dfa.gov.ph/).
388 SCS Arbitration, Notification and Statement of Claim, 22 January 2013, para.41
(bullet point 13).
389 Article 25(2) of the Rules of Procedure provides: “In the event that a Party does not
appear before the Arbitral Tribunal or fails to defend its case, the Arbitral Tribunal
shall invite written arguments from the appearing Party on, or pose questions re-
garding, specific issues which the Arbitral Tribunal considers have not been can-
vassed, or have been inadequately canvassed, in the pleadings submitted by the
appearing Party. The appearing Party shall make a supplemental written submission
in relation to the matters identified by the Arbitral Tribunal within three months of
the Arbitral Tribunal’s invitation.”
390 See SCS Arbitration, Procedural Order No.3, Request for Further Written
Argument by the Philippines Pursuant to Article 25(2) of the Rules of Procedure,
16 December 2014. See also Philippine Mission to the United Nations, Note
Verbale No.72/2015, dated 2 February 2015, addressed to Permanent Missions
Accredited to the United Nations; and PCA, Arbitration between the Republic of
the Philippines and the People’s Republic of China, Press Release, 17 December
2014; SCS Arbitration, Award, paras.59, 120.
Talmon, The South China Sea Arbitration 381
submitting the documents, the Philippines declared that it “is confident that its an-
swers to the Tribunal’s questions leave no doubt that the Tribunal has jurisdiction
over the case”.391
156. On 23 June 2015, the Tribunal sent a letter to the Philippines with guidance
as to issues to address in connection with the hearing,392 and provided the
Philippines with an Annex of 38 issues set out in eight different categories, listed A to
H, which the Philippines may wish to address at the July hearing.393 In Issue A1 the
oral answers in writing”, including their answers on the existence of a legal dispute,400
which the Philippines did. The Tribunal could not have given the Philippines any
more opportunities to clarify the content and scope of its Submission No.15.
157. Nevertheless, in its Award on Jurisdiction and Admissibility the Tribunal di-
rected the Philippines “to clarify the content and narrow the scope of its Submission
No.15” at the merits stage of the proceedings. At the end of the hearing on the merits,
400 See SCS Arbitration, Hearing, Day 3, 13 July 2015, 81: 22-24. See also PCA,
Arbitration between the Republic of the Philippines and the People’s Republic of
China, Press Releases of 13 July 2015, 5.
401 SCS Arbitration, Hearing on the Merits and Remaining Issues of Jurisdiction and
Admissibility, Day 4, 30 November 2015, 203: 24-26, and 204: 1-5. See also ibid.,
Day 3, 26 November 2015, 90: 15-26, and 91: 1-7.
402 Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Merits, Judgment,
ICJ Reports 1974, 175, 204, para.74.
403 Ibid., 203, para.73.
404 Ibid., 203-204, para.74.
Talmon, The South China Sea Arbitration 383
views of the Parties, that the objection to its jurisdiction does not possess an ex-
clusively preliminary character, in which case it shall rule on such a plea in con-
junction with the merits.
Once the Tribunal had decided to treat China’s Position Paper and certain communi-
cations from China as constituting, in effect, “a plea concerning jurisdiction”,412 the
Tribunal was under an obligation to rule on this plea as a preliminary question unless
412 SCS Arbitration, Procedural Order No.4, dated 21 April 2015. See also ibid.,
Award, para.15.
413 See above section II.1.a.
414 See SCS Arbitration, Rules of Procedure, 27 August 2013, Article 22(1).
415 SCS Arbitration, Award, para.101 (Submission No 10) (italics added).
Talmon, The South China Sea Arbitration 385
by the Philippines during the last day of the hearing.429 It was also referenced by the
Tribunal in its Award on Jurisdiction and Admissibility.430
169. At the last day of the oral hearing, in the morning of Monday, 13 July 2015,
the President of the Tribunal simply “note[d] the receipt of these documents”,431 but
the Tribunal never took any decision on the admissibility of these documents. The
documents were delivered to the Chinese Embassy in The Hague,432 but unlike with
(6 July 2015); see SCS Arbitration, Hearing, Day 3, 13 July 2015, 2: 11-13
(President Mensah); ibid., Award, para.91.
429 See SCS Arbitration, Hearing, Day 3, 13 July 2015, 10: 4-26, and 11: 1; and
14:18-20, and 15: 1-8.
430 See SCS Arbitration, Award, para.147 n.91.
431 See SCS Arbitration, Hearing, Day 3, 13 July 2015, 2: 6-8 (President Mensah).
432 See SCS Arbitration, Award, paras.89, 91.
433 See e.g. SCS Arbitration, Award, paras.18, 34, 43, 44, 46, 47, 48, 50, 59, 60, 61,
69, 75, 79, 80, 90, 92.
434 See ICJ, Rules of Court, Article 56(4); Rules of the ITLOS, Article 71(5).
435 But this seems to be the view of the Philippines; see SCS Arbitration, Hearing, Day
3, 13 July 2015, 14: 18-20, and 15: 1.
436 See Stefan Talmon, Article 43, in: Andreas Zimmermann et al. (eds.), The Statute
of the International Court of Justice: A Commentary (2nd edn., 2012), 1088-1171,
MN 71, 166.
388 Chinese JIL (2016)
i.e. it has to decide that it considers the new document necessary.437 Such a decision
must be taken after hearing the parties. The party wishing to submit a new document
during the oral proceedings must explain why it considers it necessary to include the
new document in the case file and not just indicate the reasons preventing the pro-
duction of the document at an earlier stage.438 The rule aims to ensure the orderly
conduct of oral proceedings and to prevent either side, or the Court, from being taken
by surprise.439 The rule is thus an expression of the general principle of the proper ad-
437 Cf. Anna Riddell and Brendan Plant, Evidence before the International Court of
Justice (2009), 174-175; Quintana (above n.377), 330-332.
438 Riddell and Plant (above n.437), 176-177.
439 Ibid., 172.
440 Cf. Talmon (above n.436), MN 71, 72.
441 It is of interest to note in this connection that the Tribunal noted “the practice of in-
ternational courts and tribunals” with regard to other matters; see SCS Arbitration,
Award, paras.68, 122.
442 See e.g. Military and Paramilitary Activities in und against Nicaragua (Nicaragua v.
United States of America), Merits, Judgment, ICJ Reports 1986, 14 at 26, para.31.
See also Quintana (above n.377), 335.
443 See e.g. Military and Paramilitary Activities in und against Nicaragua (Nicaragua v.
United States of America), Merits, Judgment, ICJ Reports 1986, 14, 18, para.12.
444 Christian Tams, Article 52, in: Andreas Zimmermann et al. (eds.), The Statute of
the International Court of Justice: A Commentary (2nd edn., 2012), 1312-1323,
MN 12.
Talmon, The South China Sea Arbitration 389
V. Conclusions
173. In case of default of appearance by the respondent the Tribunal must satisfy it-
self that it has jurisdiction over the dispute and that the applicant’s claims are admissi-
ble. The Tribunal in the SCS Arbitration noted that China’s non-participation
imposes “a special responsibility on the Tribunal” and that it cannot “simply adopt
the Philippines’ claims”.446 On the basis of the above analysis it must be concluded
that the Tribunal has not lived up to this special responsibility.
174. The Tribunal held that there existed a legal dispute with regard to each of the
Philippines’ Submissions No.1-14. As it was unable to establish a positive opposition
by China with regard to the Philippines’ claims concerning the status of the individ-
ual maritime features in the Spratly Islands, the Tribunal set out to “infer” the exis-
tence of a dispute. Unlike the ICJ, which inferred the existence of a dispute from a
State’s silence or its failure to respond to a claim, the Tribunal “constructed” artificial
disputes over the status of certain maritime features in the South China Sea in the
face of, and contrary to China’s explicit legal position.447 The Tribunal also accepted
the existence of a dispute based on the Philippines’ tactical “assumption” which was
contradicted by the Philippines’ own behaviour outside the courtroom.448 But per-
haps most damaging to its credibility, the Tribunal accepted and adopted the
Philippines’ misrepresentation of China’s position that the “Nansha Islands are [in-
stead of is] fully entitled” to maritime entitlements and, consequently, focused on the
445 See SCS Arbitration, Award, para.64 (italics added). For a second letter of the
Chinese Ambassador, dated 1 July 2015, which stated that China “opposes any
moves to initiate and push forward the arbitral proceeding, and does not accept any
arbitral arrangements, including the hearing procedures”, see ibid., para.83.
446 SCS Arbitration, Award, para.12.
447 See above section II.1(a)(3).
448 See above section II.1.(a)(4)(c).
390 Chinese JIL (2016)
status and entitlements of individual maritime features in the Nansha Islands, rather
than on the Nansha Islands as a whole.449 The Tribunal paid neither sufficient regard
to China’s Position Paper and other official statements, nor to the academic litera-
ture.450 Judge Lagergren, acting as sole arbitrator, in B.P. Exploration Company v.
Libya, stated that in case of an absent respondent, the Tribunal is “compelled to un-
dertake an independent examination of the legal issues deemed relevant by it, and to
deferred inadequate submissions not specifying any particular dispute to the merits
stage of the proceedings.457 These are not just technicalities but go to the heart of the
good administration of justice. In order to safeguard its judicial function and integrity
the Tribunal should have dismissed Submissions No.11, 12(b), 14 and 15 as
inadmissible.
177. The Tribunal’s Award on Jurisdiction and Admissibility has been com-
mended for its “straightforward legal simplicity”.458 But, the Award rather seems to