Arbitration request by the Philippines against China over the South China Sea would hit nowhere with false assumptions and the UN tribunal has actually no jurisdiction over some of the requests, said European experts.
None of the 13 points of the request by the Philippines either gives rise to a dispute concerning the interpretation or application of the Law of the Sea convention (UNCLOS, or the Convention) or can be addressed without considering matters which are or have been validly removed from the jurisdiction of the tribunal, according to Stephan Talmon, co-director of the Institute of Public International Law at the University of Bonn.
In fact, sovereignty disputes are beyond the scope of the UNCLOS as they do not concern the interpretation or application of the Convention.
Disputes concerning maritime delimitation have been excluded from compulsory arbitration procedures by China in a declaration in accordance with the Convention in 2006.
Based on these facts, in its Position Paper issued last December the Chinese government argued that the tribunal has no jurisdiction on any of the Philippines' claims.
"Certain parts of the Philippines' claim, such as asking the tribunal to determine that certain specific areas are part of the continental shelf of the Philippines, are basically asking for a delimitation," said Prof. Alex Oude Elferink, director of the Netherlands Institute for the Law of the Sea (NILOS) at Utrecht University.
That is excluded by the Chinese declaration under article 298 of Law of the Convention, said Oude Elferink.
As to the "nine-dash line" (also known as dotted-line), be it in historical claim or a maritime boundary claim, Oude Elferink also believed that the tribunal can not say anything about it since the tribunal does not have jurisdiction to deal with historic title or delimitation in this case.
"I do not think that's really the interest of the Philippines. I would suspect that they do not expect all of their claim will be awarded," said Oude Elferink.
