3. Even if Manila did have the right, China is exempted from compulsory arbitration. This is Beijing's most compelling argument. It rests on China's 2006 declaration, as allowed by UNCLOS, that it is exempt from arbitration on certain topics including maritime delimitation. The Philippines has done an admirable job of framing its case as being about China's obligation to clarify the nine-dash line and about the status of features, not about delimiting disputed waters.
But Manila's argument is not a slam dunk. Most worrying for the Philippines is that its lawyers felt compelled to include an argument about the status of Itu Aba, the largest of the Spratly Islands, in its March 30 submissions to the court. Were the tribunal to rule Itu Aba (or any other feature) an island legally capable of generating a continental shelf, then it would likely undermine parts of the Philippine case, especially those pertaining to low-tide elevations. But it is noteworthy that China's position paper does not detail this point, leaving it to the arbitral judges to connect the dots.
4. Even if China were not exempt, the use of a special arbitral tribunal in cases in which a state has not selected one of the other options for arbitration permitted by UNCLOS violates international law. This is essentially questioning an UNCLOS provision to which China agreed in 1996. It is the least compelling of China's arguments, not least because it is hard to fathom that a court established under the provisions of UNCLOS would feel empowered to overturn the only sensible interpretation of one of those provisions.
It is telling that amid its arguments against the court's jurisdiction, China also touches on the merits of the case (despite insisting in the introduction that it will not do so). In particular, it makes an argument about the ability of a state to make a claim of sovereignty over a low-tide elevation, despite acknowledging that the International Court of Justice in 2012 ruled that such a claim is not permissible. China also defends its actions at Scarborough Shoal and Second Thomas Shoal since 2012, which the Philippines describe as employing the threat of force. Yet the position paper does not address either the status of those features the Philippines identifies as rocks rather than islands, nor does it defend the nine-dash line as a claim to maritime space in accord with UNCLOS - both indicative of the weakness of China's legal position on those points.
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