The abuse of legal process by the Philippines is apparent. To trigger the Arbitration, the Philippines tried everything possible to exceed the limits of mutual state consent, by disguising the real disputes, by circumventing China's declaration, and by degrading the bilateral and regional agreements on resolving disputes through negotiation. In so doing, no good faith was demonstrated. Furthermore, according to the explicit provisions in the UNCLOS, given China's declaration, the Philippines has no right at all to unilaterally initiate the arbitration (Articles 286, 299).
The ultra vires (acts beyond one's legal power or authority) by the Arbitral Tribunal is also obvious. Given China's declaration, the establishment and functioning of the Tribunal has no legal basis (Article 286). With its legitimacy in doubt, the Tribunal further exceeded the limits of state consent by wrongly establishing its jurisdiction, particularly by the following ultra vires acts:
The Tribunal has restricted the rights of States to exclude compulsory procedures with declarations under Article 298 of the UNCLOS. According to the customary rule for treaty interpretation, i.e. the textual approach and good faith principle as enshrined in the Vienna Convention on the Law of Treaties, Article 298 of the UNCLOS grants States the right to exclude compulsory procedures with respect to all disputes on or concerning the whole delimitation process. By endorsing the Philippine assertion that the Arbitration is irrelevant to territorial dispute and delimitation, the Tribunal has overlooked the relationship among territorial dispute, delimitation and the issue of entitlement. It has also disregarded the terms "concerning" and "relating to" in Article 298, and has neglected the jurisprudence that the first step of any delimitation is to determine whether there are entitlements, and that the task of delimitation involves resolving overlapping claims. With such a fragmentary approach, the Tribunal has not only failed to isolate the real disputes, but has also largely nullified the right of States by only recognizing the right to exclude compulsory procedures with respect to disputes on the final determination of the maritime boundary line.
In addition, the Tribunal has restrictively interpreted the right of States to opt out compulsory procedures by entering into agreements among themselves. With the Declaration on the Conduct of Parties in the South China Sea and a series of bilateral documents, China and the Philippines have repeatedly agreed and undertaken to resolve their disputes through friendly negotiations and consultations. By the Joint Statement on August 10, 1995, and on May 16, 2000, the two countries have also agreed to "eventually" negotiate a settlement of their bilateral disputes. The term "eventually" clearly indicates that negotiation is the only means chosen by the two States for resolving their disputes, and that other means including compulsory arbitration have been excluded, because "the absence of an express exclusion of any procedure is not decisive" for States to exercise the rights to exclude further procedures by their agreement (the Southern Bluefin Tuna arbitration, Award on Jurisdiction and Admissibility, para. 57). Nonetheless, despite the previous case law and with no basis in the Convention, the Tribunal interpreted that the compulsory procedures could only be excluded explicitly, and consequently set an unreasonably higher standard to limit States' right.
IV. The Awards are neither binding nor helpful
According to the UNCLOS, the Awards of the Tribunal shall have no binding force. States shall comply with the decision rendered by a court or tribunal, but only insofar as the court or tribunal has jurisdiction (Article 296.1). The current Tribunal has no jurisdiction over the real disputes in the Arbitration, and its ultra vires acts could create neither jurisdiction nor binding force; consequently, its Awards do not meet the qualification of being complied.
