Alternatively, according to Article 296.2, the decision of a court or tribunal shall have no binding force except in respect of that particular dispute at issue. Since the Philippines and the Tribunal have reiterated, time and again, that the Arbitration concerns neither territorial dispute nor delimitation, the Awards shall have no effects in respect of the territory and delimitation disputes in the South China Sea.
Moreover, the Arbitration is detrimental to the settlement of disputes. The fragmentary approach employed by the Philippines and the Tribunal, and their degradation of existing bilateral and regional agreements, are not helpful to the ongoing efforts for managing and resolving disputes in the South China Sea, and will only be counterproductive. Besides, the abuse of legal process and ultra vires will break the balance of the UNCLOS dispute settlement regime and contravene procedural justice.
In conclusion, the real disputes in the Arbitration are those about territorial sovereignty and maritime delimitation, both of which are beyond the Tribunal's jurisdiction. By obscuring the real disputes and bypassing the limits to compulsory procedures, the Philippines does abuse the legal process, and the Tribunal does exceed the state consent and act ultra vires. According to Article 296, the Awards on jurisdiction and on merits will have no binding force whatsoever.
Bearing in mind the significance of state consent as the very foundation of international judicial/arbitral organs,
Concerned about the abuse of legal process and ultra vires acts in the South China Sea Arbitration,
Noting the dangerous tendency towards the judicial/arbitral expansion in the field of the law of the sea, and,
Worried about the degradation of the role of State's negotiation,
We hereby:
Request international judicial and arbitral organs to act strictly within their mandate under international law, to faithfully fulfill their duty in identifying the real dispute between parties, to adjudicate within the realm of their jurisdiction and to avoid acting ultra vires. The arbitral tribunals, ad hoc as they are, shall still be responsible for the overall and long-term functioning of the UNCLOS without breaking the balance contained therein, and shall show their respects for the consent of relevant State Parties.
Urge the Philippines to unconditionally terminate its illegal occupation of the Chinese maritime features in the South China Sea, to stop all activities that may escalate regional tension, to withdraw the claims that are inconsistent with the facts and law, and to solve maritime disputes with its neighbors in good faith.
Call upon all State Parties to the UNCLOS to join China in the efforts to combat abuse of legal process and ultra vires, to adopt all necessary measures, including practical guidance to the judicial/arbitral organs, so that the judicial/arbitral powers are exercised in a way consistent with state consent in the Convention.
Invite scholars, students and lawyers of international law to further study the UNCLOS disputes settlement mechanism so as to contribute to the peaceful settlement of disputes in the South China Sea dispute.
