On the other hand, the Philippine territory has nothing to do with the SCS Islands. All the SCS Islands are located to the west of 118 degrees east, which is the westernmost limit of the Philippine territory, as defined by the 1898 US-Spain Treaty of Peace, the 1900 US-Spain Treaty for Cession of Outlying Islands of the Philippines, the 1930 US-UK Convention Delimiting the Boundary between the Philippines Archipelago and State of North Borneo, as well as the 1935 Philippine Constitution and the 1961 Act to Define the Baselines of the Territorial Sea of the Philippines.
In the 1970s, the Philippines invaded eight maritime features of the SCS Islands, which gave rise to the territorial disputes between China and the Philippines. Later on, with the negotiation of the UNCLOS in process, the Philippines expanded its maritime claims, which overlapped with China's and led to their maritime delimitation disputes.
The real disputes in the South China Sea are therefore of and about territorial sovereignty and maritime delimitation. According to the principle that the land dominates the sea, with the territorial dispute pending, the coastal State, and the relevant coast and relevant areas for delimitation, cannot be determined; consequently, the task of delimitation cannot start. Therefore, the territory and delimitation disputes in the South China Sea are closely intertwined, and the territorial dispute is predominant.
In the Arbitration, the Philippines raised three categories of inter-related submissions, on the validity of the U-shaped line, on the status/entitlements of maritime features and on China's interference in the Philippines' sovereign rights. And the Philippines asserted that these submissions are not relevant to the territorial and delimitation disputes. Careful examination can easily pierce the veil:
First, the U-shaped line depicts China's sovereignty over the SCS Islands, thus the submissions regarding the line concern the sovereignty of the Islands. In addition, in the Philippine submissions, the line is asserted as representing China's maritime claim. If the Philippine assertion is correct, resolving the disputes on the U-shaped line is plainly part of the delimitation process, as "the task of the delimitation involves resolving overlapping claims" (Maritime Delimitation in the Black Sea, para. 77).
Second, the submissions on maritime entitlements are inalienable parts of the delimitation process, and are closely related to territorial disputes. According to the established jurisprudence, the first step of any delimitation is to determine whether there are entitlements and whether they overlap (Bangladesh v. Myanmar, para. 397; Barbados /Trinidad and Tobago, para. 224). Further, as maritime entitlements are granted to coastal States, the determination of coastal States, i.e. the settlement of territorial disputes, is a precondition for ascertaining maritime entitlements.
Third, the submissions on the legality of China's activities are dependent on the settlement of the territorial and delimitation disputes. These submissions reflect the existence of disputed areas, and cannot be addressed without the settlement of the underlying territory and delimitation disputes.
As demonstrated above, all the Philippine submissions are either territorial and delimitation disputes per se, or subsequent to the underlying disputes. In other words, the real disputes in the Arbitration are those regarding territory and maritime delimitation. With respect to the jurisdiction, the UNCLOS does not address territorial disputes, and delimitation disputes have been excluded from compulsory procedures by China's declaration under Article 298. Therefore, the disputes in the Arbitration are beyond mutual state consent to compulsory jurisdiction.
III. The abuse of legal process and ultra vires acts in the Arbitration
As elaborated in Section I, State Parties to the UNCLOS agree to be bound by the compulsory procedures, but only under the circumstances set out in Articles 281, 282, 286, 298 and 299 of the Convention. To maintain the balance and compromise in the Convention, Article 300 requires that right and jurisdiction shall be exercised in a manner that would not constitute an abuse; Article 294 further provides preliminary proceedings to address claims that might constitute abuses of legal process. These non-abuse requirements serve an essential role in safeguarding the overarching principle of state consent. However, the South China Sea Arbitration demonstrates how the legal process is abused by one party to the dispute, and how the arbitral organ acts beyond its power.
