[Andrew Gou is an Associate Professor at Jilin University. A translation of this post is also being circulated in Chinese via wechat, and that can be found here.]
Once upon a time, a man was traveling with a white horse. They were stopped at the entrance to town, for the town had a “no horses allowed” rule. The man argued that a white horse was not a horse, for white horse was a new concept defined by both the concepts of white and of horse, and thus different from the original concept of horse. However, the gatekeeper insisted that the white horse was still a horse and should consequently be excluded from the town. The white horse story highlights the importance of the identification of the subject matter to the application of rules. Even for such simple rule as “no horse allowed”, identifying the true subject matter is inevitable.
A key aspect of the ongoing South China Sea arbitration is to identify whether the submissions fall within the delimitation exception in the UNCLOS and China’s declaration under the exception: China argues yes, while the Philippines disagrees. On 29 October, the Arbitral Tribunal delivered its award on jurisdiction. Issues relating to delimitation exception are addressed briefly in paragraphs 155-157. The Tribunal states that it is “not convinced” by China; it considers that a dispute concerning maritime entitlement is distinct from a dispute concerning the delimitation; the Philippines has not requested the Tribunal to delimit, and the Tribunal will not effect the delimitation of any boundary. Then in paragraphs 397-412 titled “[t]he Tribunal’s conclusions on its jurisdiction”, the Tribunal concludes that 14 submissions of the Philippines do not concern maritime delimitation.
I respectfully disagree with the award. In particular, I disagree with the manners in which the Tribunal reaches its conclusions on the delimitation exception.
Basic understanding of the delimitation exception
Article 298.1(a) of the UNCLOS provides that a State may declare that it does not accept compulsory procedures with respect to “disputes concerning the interpretation or application of Articles 15, 74 and 83 relating to sea boundary delimitations”. In a recent article of mine (paras. 7-37), I tried to interpret the exception in accordance with Article 31 of the VCLT. Some basic findings are as follows:
First, delimitation is a process, and the term delimitation in the exception shall be understood as such. “The task of delimitation consists in resolving the overlapping claims” (Maritime Delimitation in the Black Sea, para. 77), which indicates that delimitation is a process of identifying, weighing and effecting competing claims, not only the final determination of the boundary line.
Second, according to their ordinary meaning, the good faith principle and relevant case law, the terms relating to and concerning in the language of the delimitation exception shall be interpreted non-restrictively. They carry the meaning of on and connected with, or having a bearing on.
Thus, the delimitation exception covers not only disputes on the determination of sea boundaries but also disputes having a bearing on the entire delimitation process. With an Article 298.1(a) declaration, the UNCLOS compulsory procedures shall not apply to those disputes.
The Philippines has wrongly specified the nature of the disputesMy article (paras. 73-100) also examines the Philippines’ submissions, and concludes that each of them has a bearing on delimitation and is excluded from arbitration by the declaration of China.
For instance, the Philippines asks the Tribunal to declare that China’s maritime claims based on its “nine dash line” are inconsistent with the UNCLOS and therefore invalid (award, paras. 4, 99). Apparently the Philippines is of the view that the line represents China’s maritime claims. If the view is correct, then disputes on the line are typically disputes on overlapping claims: they arose only when the Philippines raised maritime claims overlapping with China’s; they could be settled only in the process of delimitation. If the Philippines’ view is not correct, then it must be proved that there exists a dispute concerning the interpretation and application of the UNCLOS; otherwise, the Tribunal will have no jurisdiction.