The Agreements and Disputes Crystalized by the 2009-2011 Sino-Philippine Exchange of Notes Verbales and their Relevance to the Jurisdiction and Admissibility Phase of the South China Sea Arbitration

Abstract

This paper examines the evidences used by the Tribunal for the South China Sea Arbitration to conclude that Philippines' Submissions 3-4 and 6-7 reflect disputes. The Jurisdictional Award uses certain notes verbales sent by the Philippines and China in April 2011 for this purpose. However, the plain wording of these notes verbales negates the existence of disputes concerning the legal status of nine maritime features identified by those four Submissions. The Tribunal overlooks the agreement reached in these notes verbales that some geological features in the Kalayaan Islands Group may generate Exclusive Economic Zone and continental shelf, which serve to defeat Philippines' Submissions 5, 8, and 9 as well as the Philippines' theory that China invokes historical rights to justify its law enforcement activities in the entire region within the U-Shaped Line.