【英文版】（三）中国国际法学会：菲律宾所提南海仲裁案仲裁庭的裁决没有法律效力
发布时间: 2016-07-01 | 阅读数:2016-06-10 国际法促进中心
2. The Arbitral Tribunal selectively neglects the real object and practical effect of the Philippines’ initiation of the Arbitration, namely to deny China’s territorial sovereignty in the South China Sea
In its application of the second criterion (see above), the Tribunal determines arbitrarily without any analysis that “[it] does not see that success on these Submissions would have an effect on the Philippines’ sovereignty claims”, and decides that the claims do not concern sovereignty (See Award, para.153). The fact is, however, that the Philippines’ claims are all directly aimed at denying China’s territorial sovereignty in the South China Sea, thus concern the issue of sovereignty.
There is abundant evidence showing that the real object of the Philippines in initiating the South China Sea Arbitration is to deny China’s territorial sovereignty over Huangyan Dao (Scarborough Shoal) and the Nansha Islands.
For instance, on 22 January 2013, the day of the initiation of the Arbitration, the Philippine Department of Foreign Affairs released a Q&A on the arbitral proceedings (See “Statement of Secretary Albert del Rosario: On the UNCLOS Arbitral Proceedings against China to achieve a peaceful and durable solution to the dispute in the West Philippine Sea”,http://www.gov.ph/2013/01/22/dfa-guide-q-a-on-the-legal-track-of-the-unclos-arbitral-proceedings/, last visited 8 June 2016). It explicitly described the purpose of the case as “to protect our national territory and maritime domain” (Question 1) or “to defend the Philippine territory and maritime domain” (Question 3), declared not “surrendering our national sovereignty” (Question 15), and stressed that “[o]ur action is in defense of our national territory and maritime domain” (Question 26).
In the 2014 State of Nation Address (SONA) Technical Report, published by the Office of the President of the Philippines in July 2014, the development of the South China Sea Arbitration was presented under the title of “Protected Territorial Integrity through the Promotion of the Rule of Law” (See The Office of the President of the Philippines, “The 2014 SONA Technical Report”, pp.64-65, http://www.gov.ph/2014/07/28/2014-sona-technical-report/, last visited 8 June 2016). In the 2015 SONA Technical Report, published in July 2015, a summary of the further development of the Arbitration was placed under the title of “Protected our National Territory and Boundaries” (See The Office of the President of the Philippines, “The 2015 SONA Technical Report”, pp.61-62, http://www.gov.ph/downloads/2015/2015-SONA-TECHNICAL-REPORT.pdf, last visited 8 June 2016).
It is thus obvious that the real object of the Philippines in its initiation of the Arbitration is to legitimize its unlawful seizure and occupation of some of China’s maritime features in the Nansha Islands. That it “has not asked the Tribunal to rule on sovereignty” is nothing but an outright lie.
In hearing a case, an international judicial or arbitral body is obliged to examine all relevant official statements made by the parties in and outside the court or tribunal, to define accurately the real object of the claims. In the Nuclear Tests Cases, the ICJ stated in 1974 that “the Court must ascertain the true subject of the dispute, the object and purpose of the claim ... it must take into account the Application as a whole, the arguments of the Applicant before the Court, the diplomatic exchanges brought to the Court’s attention, and public statements made on behalf of the applicant Government” (Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p.263, para.30; See also,Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, p.467, para.31). This requirement was reiterated by the Court in 1995 when it examined the relevant situation of its 1974 Judgment (New Zealand v. France) at the request of New Zealand (SeeRequest for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case, I.C.J. Reports 1995, p.304, para.56). In the present Arbitration, it is extremely abnormal of the Tribunal to turn a blind eye to the real object of the Philippines in its initiation of the Arbitration, so clearly stated in the materials presented above.
In addition, the Arbitral Tribunal fails to evaluate objectively the practical effect of its processing of the Philippines’ claims on China’s territorial sovereignty in the South China Sea. In the Award, the Tribunal expresses its intention to “ensure that its decision neither advances nor detracts from either Party’s claims to land sovereignty in the South China Sea” (Award, para.153). However, in practical terms its establishment of jurisdiction over and endorsement of the Philippines’ claims will inevitably detract China’s territorial sovereignty in the South China Sea.
China has always enjoyed sovereignty over the Nansha Islands as a whole. For instance, both the Declaration of the Government of the People’s Republic of China on the Territorial Sea of 1958 and the Law of the People’s Republic of China on the Territorial Sea and the Contiguous Zone of 1992 expressly provide that the territory of the People’s Republic of China includes,inter alia, the Dongsha Islands, the Xisha Islands, the Zhongsha Islands and the Nansha Islands. The Nansha Islands, which consists of a large number of maritime features, is included in China’s land territory as a whole. The islands, reefs, islets and shoals, as components of the Nansha Islands, are all part of China’s land territory. The Philippines, by claiming that features such as Mischief Reef (Meiji Jiao), Second Thomas Shoal (Ren’ai Jiao) and Subi Reef (Zhubi Jiao) are low-tide elevations and are incapable of appropriation, directly aims at challenging China’s territorial sovereignty over the Nansha Islands. If the Tribunal takes jurisdiction over and supports the claims, it will amount to an attempt to deny China’s territorial sovereignty over the Nansha Islands as a whole.
The Tribunal’s possible support for the Philippines’ claims regarding the status and maritime entitlements of certain maritime features each as a separate single feature will likewise amount to, in practical terms, an attempt to deny China’s territorial sovereignty over the Nansha Islands as a whole. The Nansha Islands, taken as a whole, is capable of generating a territorial sea, exclusive economic zone and continental shelf. The purpose of the Philippines, in requesting the Tribunal to decide on the status and maritime entitlements of a small number of selected maritime features of China’s Nansha Islands, is to deny China’s maritime interests based on the Nansha Islands as a whole to further deny China’s territorial sovereignty over the Nansha Islands.
III. The Arbitral Tribunal disregards the fact that there exists an issue of maritime delimitation between China and the Philippines, distorts Article 298 of the UNCLOS, and actsultra vires to exercise jurisdiction over claims concerning maritime delimitation
Even assuming,arguendo, the Philippines’ claims constitute disputes between China and the Philippines concerning the interpretation or application of the UNCLOS, the Tribunal still may not exercise its jurisdiction over the disputes, as the resolution of these disputes forms an integral part of the maritime delimitation between China and the Philippines and they have been excluded from the applicability of compulsory procedures, including arbitration, by China’s 2006 Declaration made under Article 298 of the Convention.
Pursuant to Article 298 of the UNCLOS, a State Party may declare in writing that it does not accept any one or more of the procedures provided for in Section 2, Part XV of the Convention, including arbitration, with respect to disputes concerning the interpretation or application of Articles 15, 74 and 83 relating to sea boundary delimitation (Article 298(1)(a)), disputes involving historic bays or titles (Article 298(1)(a)), disputes concerning military activities or law enforcement activities (Article 298(1)(b)), and disputes in respect of which the Security Council is exercising the functions assigned to it by the Charter of the United Nations (“the UN Charter”) (Article 298(1)(c)). The exceptions made pursuant to Article 298 are opposable to other States Parties. In other words, other States Parties may not initiate compulsory procedures against a State Party with respect to the above subject-matters which it has excluded by declaration, and the Tribunal has no jurisdiction over them. In 2006, China declared that “[t]he Government of the People’s Republic of China does not accept any of the procedures provided for in Section 2 of Part XV of the Convention with respect to all the categories of disputes referred to in paragraph 1 (a) (b) and (c) of Article 298 of the Convention”, which clearly excludes disputes concerning maritime delimitation and other subject-matters from the applicability of compulsory procedures.
With a view to circumventing the jurisdictional hurdle posed by China’s 2006 Declaration and to justifying its jurisdiction over relevant claims made by the Philippines, the Arbitral Tribunal disregards the fact that between China and the Philippines there exists an issue of maritime delimitation, and narrows the interpretation of the term “disputes concerning or relating to sea boundary delimitation” in Article 298 down to “disputes over maritime boundary delimitation itself”. Such moves are groundless in fact or law.
1. The Arbitral Tribunal ignores the fact that between China and the Philippines there exists an issue of maritime delimitation
China pointed out in its Position Paper that “[t]here exists an issue of maritime delimitation between the two States. Given that disputes between China and the Philippines relating to territorial sovereignty over relevant maritime features remain unresolved, the two States have yet to start negotiations on maritime delimitation. They have, however, commenced cooperation to pave the way for an eventual delimitation” (Position Paper, para.59). In its Award, the Tribunal deliberately ignores this fact, and finds that the Philippines’ claims do not concern maritime delimitation between the two States (See Award, paras.156-157).
As a matter of fact, there exist between China and the Philippines a delimitation geographical framework and overlapping claims of maritime entitlements. None of the nine features in the South China Sea that are concerned in the Philippines’ Submissions is over 400 nautical miles from the baseline of the Philippine archipelago, with Huangyan Dao (Scarborough Shoal) of the Zhongsha Islands less than 200 NM; Zhubi Jiao (Subi Reef), Huayang Jiao (Cuarteron Reef) and Yongshu Jiao (Fiery Cross Reef) of the Nansha Islands between 230 and 260 NM; other features less than 200 NM. As China has been all long taking the Zhongsha Islands and the Nansha Islands as a unitary whole, respectively, to claim territorial sea, exclusive economic zone and continental shelf, while the Philippines has been claiming such rights based on its coast, there is obviously an issue of maritime delimitation between the two States. As far as the relevant claims of the Philippines are concerned, particularly in the specific context of geographical framework of the South China Sea and overlapping claims of maritime rights between the two States, any determination of the status and maritime entitlements of features will have an inevitable effect on the future delimitation between China and the Philippines. Therefore, the Philippines’ claims regarding the status and maritime entitlements of features constitute an integral part of maritime delimitation between China and the Philippines and have been excluded from compulsory procedures by China via its 2006 Declaration.
An examination of the Philippines’ claims also reveals that the relevant Submissions reflect a dispute concerning maritime delimitation. For instance, by requesting the Tribunal to determine that Mischief Reef (Meiji Jiao) and Second Thomas Shoal ( Ren’ai Jiao) are part of its exclusive economic zone and continental shelf and that certain Chinese activities unlawfully interfered with its enjoyment and exercise of sovereign rights in its exclusive economic zone, the Philippines was asking the Tribunal to declare that the relevant maritime zones were part of its exclusive economic zone and continental shelf and it enjoyed sovereign rights and jurisdiction in the zones. This is a request for maritime delimitation in disguise. The Philippines’ claims practically comprise the major steps and principal issues of maritime delimitation. If the Tribunal decides on the claims at the merits stage, it will amount to conducting maritime delimitation indirectly.