The South China Sea Arbitration (The Philippines v. China): Potential Jurisdictional Obstacles or Objections

Abstract

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 inthismatter. 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’ claimsareessentiallylandterritorialsovereigntymatters,notconcerningtheinterpretationorapplicationoftheUNCLOS,oraredependentontheresolution oflandterritorialsovereigntyclaims.PartIVdiscussesthejurisdictionalobstacles orobjectionsbasedonArticle298oftheUNCLOSandChina’s2006optional exceptions declaration as well asthe Philippines’ relatedUnderstanding. When