The objective link between the Philippines' claims and the issue of territorial sovereignty over certain maritime features in the South China Sea is such that a decision on the latter is the precondition to deciding on the former and the Tribunal errs in treating the Philippines' claims in isolation from sovereignty.
In its Submissions No. 1 and 2, the Philippines argues that China's maritime claims in the South China Sea have exceeded the extent allowed under the UNCLOS. In practice, however, without first having determined China' s territorial sovereignty over the maritime features in the South China Sea, the Arbitral Tribunal will not be in a position to determine what maritime rights China enjoys and the extent to which China may claim maritime rights therein, not to mention whether China's claims exceed the extent allowed under the Convention.
The Philippines' Submissions No. 3 through 7 concern the status and maritime entitlements of certain maritime features. According to international law, including the UNCLOS, the maritime entitlements generated by a maritime feature belong to the costal State that has sovereignty over the feature, rather than the feature itself. The UNCLOS, in its regulations on territorial sea, contiguous zone, exclusive economic zone and continental shelf, explicitly ties the maritime entitlements to the coastal State in respect of the maritime zone in question. If the status and maritime entitlements of a feature are considered in isolation from its holder' s sovereignty, there will be no "real" disputant party, as a subject of international law, and such claims can not constitute a "real" dispute. Moreover, whether or not low-tide elevations can be appropriated is a question of territorial sovereignty in itself. Thus, with the issue of sovereignty over the features undetermined, the Tribunal puts the cart before the horse by determining that it has jurisdiction over the above Submissions.
The Philippines' Submissions No. 8 through 14 concern the lawfulness of China' s activities in the South China Sea. In practice, however, to determine the lawfulness of China' s activities in the South China Sea, the Tribunal has to first decide on the holder of maritime entitlements with respect to the maritime zones where the activities took place, which derives from the sovereignty over the land territory. It would be impossible to deal with the above Submissions without first ascertaining the territorial sovereignty over the features in question.
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.
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 Philippine Department of Foreign Affairs released a Q&A on the arbitral proceedings, which explicitly described the purpose of the case as "to protect our national territory and maritime domain" and stressed not "surrendering our national sovereignty".
The Arbitral Tribunal also fails to evaluate objectively the practical effect of its processing of the Philippines' claims on China's territorial sovereignty in the South China Sea. China has always enjoyed sovereignty over the Nansha Islands in its entirety. The islands, reefs, islets and shoals etc., as inseparable components of the Nansha Islands, all form part of China' s land territory. The Nansha Islands, taken as a whole, is capable of generating a territorial sea, exclusive economic zone and continental shelf. The Philippines' claims that features such as Mischief Reef (Meiji Jiao), Second Thomas Shoal (Ren'ai Jiao) and Subi Reef (Zhubi Jiao) are low-tide elevations which are incapable of appropriation, and requests the Tribunal to decide on the status and maritime entitlements of a small number of selected maritime features of China's 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.
III. The Tribunal disregards the fact that there exists an issue of maritime delimitation between China and the Philippines, distorts Article 298 of the UNCLOS, and acts ultra vires to exercise jurisdiction over claims concerning maritime delimitation
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. 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. Any determination of the status and maritime entitlements of features will have an inevitable effect on the future delimitation between them. The Philippines' claims regarding the status and maritime entitlements of features constitute an integral part of maritime delimitation between China and the Philippines. In 2006, China made a declaration in line with Article 298 of the Convention, explicitly excluding "disputes concerning sea boundary delimitation" from the applicability of compulsory procedures, including arbitration.
The term of "disputes concerning sea boundary delimitation" under Article 298 of the UNCLOS includes, but is not limited to, "disputes over maritime boundary delimitation itself". The Tribunal, in an attempt to cut the objective link between the status and maritime entitlements of features on the one hand, and maritime delimitation on the other, narrows the interpretation of this term down to "disputes over maritime boundary delimitation itself" . This is not in line with international law, international practice and the teachings of publicists, and is inconsistent with the drafters' intention to limit the application of compulsory procedures by Article 298.
