Academic: Tribunal has no jurisdiction rights
An arbitration tribunal would be wrong to decide in the Philippines’ favor over claims it has brought unilaterally against China regarding South China Sea issues, according to a professor at Oxford University.
Manila has packaged its case to persuade the arbitrators that it lies within the tribunal’s jurisdiction, when it does not have this right, according to Antonios Tzanakopoulos, associate professor of public international law at the British university.
He told China Daily in an exclusive interview there is little doubt that the claims made by the Philippines and the dispute are over sovereignty, a matter over which the tribunal does not have jurisdiction.
Tzanakopoulos said he believes the tribunal would be wrong to decide that it has jurisdiction over most of the claims made by the Philippines. His views, originally outlined in an article on the Social Science Research Network, have attracted wide attention.
“The dispute between the Philippines and China is obviously about sovereignty over maritime features in the South China Sea. Essentially, the Philippines’ submissions challenge in one way or another the validity of the nine-dash-lines under the UN Convention on the Law of the Sea,” Tzanakopoulos said.
He was referring to a term used by China to define its area of sovereignty and relevant rights and interests in the South China Sea.
Tzanakopoulos said the claims made by the Philippines appear to be asking the tribunal to define the nature of certain maritime features, a matter over which it does not have jurisdiction.
The claims are packaged in such away to give the tribunal an excuse to exercise jurisdiction over them, he said.
China has said it does not recognize the tribunal’s “competence” in the sovereignty issue and will not accept its ruling.
“Instead of asking who owns these features, the Philippines has asked what the nature of these features is,” Tzanakopoulos said.
“Is a particular feature an island, an islet, a low-tide ele- vation or a rock? But, in fact, definitions relating to these maritime features have significant implications for sovereignty issues.”
This is because each of these features may generate different zones of influence around them.
“The whole debate is about who has control and sovereignty over these maritime features, and thus the zones around these features that would give exclusive control over the seabed, subsoil and water column.”
The designation of a landmass determines precisely how the surrounding water can be used and who can use it.
For example, an island is granted a territorial sea area of 12 nautical miles (22.2 kilometers) and a continental shelf of 200 nautical miles, and these can be used to claim an exclusive economic zone of 200 nautical miles. These factors have implications regarding access to natural resources in the water and on the seabed, Tzanakopoulos said.
Incontrast, a rock is granted a territorial sea area of 12 nautical miles, but no exclusive economic zone. A low-tide elevation is not granted a territorial sea area, but it may be used as a base point in claiming territorial waters if it is within 12 nautical miles of land.
“Any determination by the tribunal that a particular maritime feature is a low-tide elevation, for example, would preclude any claim to sovereignty over that feature, as it is incapable of appropriation,” the academic said.
The Philippines claims that an area extending 200 nautical miles from its coast, except for 12 nautical miles of hightide land, is its exclusive economic zone and continental shelf. Manila has accused Beijing of interfering in its exercise of sovereignty and jurisdiction in its territorial waters.
The Philippines also argues that China’s claim to historical rights within the nine-dash-lines in the South China Sea violates its sovereignty and jurisdiction over non-biological resources on the seabed.
Tzanakopoulos said he believes the tribunal made a mistake in accepting that it has jurisdiction over some of the Philippines’ claims. “If it responds to the Philippines’ claims, in some sense it is prejudicing issues that are not within its jurisdiction,” he said.
Chinese officials and experts have defended China’s stance of nonacceptance and nonparticipation in the case, saying the Philippines’ unilateral initiation of the arbitration violates international law.
The tribunal’s decision is expected soon.
Antonios Tzanakopoulos, associate professor of public international law at Oxford University