Tri­bunal should fix its mis­takes and over­sights

China Daily (Canada) - - ACROSS AMERICAS - By SIENHO YEE

The true rule of law re­quires us not to be mis­led by the su­per­fi­cial im­age of re­sort­ing to ar­bi­tra­tion, but to ex­am­ine the sub­stance of all the con­crete is­sues in­volved. The South China Sea ar­bi­tra­tion uni­lat­er­ally ini­ti­ated by the Philip­pines against China has vi­o­lated many in­ter­na­tional rule of law stan­dards.

Th­ese prob­lems in­clude: the ar­bi­tral tri­bunal does not prop­erly iden­tify or prove the ex­is­tence of the real dis­putes; the mem­ber­ship of the tri­bunal does not rep­re­sent the main forms of civ­i­liza­tion or prin­ci­pal le­gal sys­tems in the world; all the tri­bunal’s fees were paid by the Philip­pines; the ar­bi­tra­tion pro­ceeds at a fright­en­ing speed (for in­stance, mov­ing from the ju­ris­dic­tion is­sued on Oc­to­ber 29, 2015 to mer­its hear­ing dur­ing Novem­ber 24-30, 2015).

The award on ju­ris­dic­tion does not take proper cog­nizance of China’s po­si­tions. For in­stance, China treats Nan­sha Is­lands as one sin­gle unit for sovereignty as well as for mar­itime rights and de­lim­i­ta­tion pur­poses, but the tri­bunal de­lib­er­ately changes the sin­gu­lar verb form “is” used by China into the plu­ral form “are”, as if Chi­nese peo­ple did not un­der­stand English gram­mar, thus treat­ing the is­lands and reefs in the Nan­sha Is­lands as sep­a­rate units.

The award does not give proper re­gard and ef­fect to China’s po­si­tions although it sum­ma­rizes some of them su­per­fi­cially. For ex­am­ple, the tri­bunal sum­ma­rizes China’s ar­gu­ment that a 1995 joint state­ment stat­ing that the two coun­tries would take cer­tain mea­sures with a view to “even­tu­ally ne­go­ti­at­ing” a set­tle­ment of their dis­putes as evinc­ing an in­tent to choose only ne­go­ti­a­tion as the means of dis­pute res­o­lu­tion, but this point drops out of the part of the award la­beled as “the tri­bunal’s de­ci­sion”.

The award does not com­plete the re­quired anal­y­sis. For ex­am­ple, the award rests on la­belling the bi­lat­eral in­stru­ments be­tween the two coun­tries and the Dec­la­ra­tion on Con­duct of Par­ties in the South China Sea as po­lit­i­cal doc­u­ments but the in­ter­na­tional jurispru­dence re­quires one to an­a­lyze whether the par­tic­u­lar com­mit­ment at is­sue (choos­ing ne­go­ti­a­tion as the means of dis­pute set­tle­ment here) was clear and spe­cific so as to be­come bind­ing.

The award rests on giv­ing two cri­te­ria for finding a dis­pute as one about ter­ri­to­rial sovereignty — if a de­ci­sion on the dis­pute is premised on a prior de­ci­sion on ter­ri­to­rial mat­ters or if the sub­mis­sion is in­tended to ad­vance or de­tract from the land ter­ri­to­rial sovereignty of one of the par­ties—but then sim­ply ac­cepts the Philip­pines’ as­ser­tion with­out com­plet­ing its anal­y­sis why the Philip­pines’ claims would not de­tract from China’s sovereignty.

The de­trac­tion is ob­vi­ous from the treat­ing com­po­nents of China’s Nan­sha Is­lands as sep­a­rate fea­tures, which would work a dis­mem­ber­ing of that archipelago, and from a rul­ing that the low-tide el­e­va­tions at is­sues, which are part of the Nan­sha Is­lands, are not sub­ject to ap­pro­pri­a­tion. The award su­per­fi­cially claims that mar­itime en­ti­tle­ment and de­lim­i­ta­tion are dis­tinct with­out con­sid­er­ing the de­lim­i­ta­tion ge­o­graph­i­cal frame­work and sit­u­a­tion in the South China Sea and the as­so­ci­ated ef­fect of fus­ing dis­tinct is­sues of en­ti­tle­ment and sta­tus of var­i­ous fea­tures into a big de­lim­i­ta­tion com­plex, ren­der­ing th­ese is­sues con­cern­ing de­lim­i­ta­tion.

Fi­nally, the award does not re­spect the con­sis­tency re­quire­ment in in­ter­na­tional law. The tri­bunal com­pletely ig­nores the Louisa case, which is fa­vor­able to China and is di­rectly ap­pli­ca­ble to the in­ter­pre­ta­tion of China’s ex­clu­sion of dis­putes “con­cern­ing” or “re­lat­ing to” mar­itime de­lim­i­ta­tion as dis­putes about mat­ters broader than the draw­ing of the line of de­lim­i­ta­tion.

The ar­bi­tra­tor com­pletely changes, with­out of­fer­ing any ex­pla­na­tion, his twi­cepub­lished po­si­tions which are fa­vor­able to China. All this vi­o­lates the fun­da­men­tal re­quire­ment of con­sis­tency in in­ter­na­tional law. This shows that the tri­bunal only pays lip ser­vice to its du­ties in ar­bi­tra­tion.

The South China Sea ar­bi­tra­tion uni­lat­er­ally ini­ti­ated by the Philip­pines against China has vi­o­lated many in­ter­na­tional rule of law stan­dards.

The ar­bi­tral tribu nal adopts an ex­ces­sively ex­pan­sive in­ter­pre­ta­tion of the ju­ris­dic­tional grant, plays a game of words, and dis­torts the text of the Con­ven­tion. This wrong­ful ex­er­cise of the com­pe­tencedela­com­pe­tence presents a sub­stan­tial dam­age to the in­ter­na­tional rule of law.

The com­pe­tence to de­cide the tri­bunal’s ju­ris­dic­tion is not ab­so­lute power, and can only be ex­er­cised with gen­uine con­cern and re­spect for the lim­i­ta­tions im­posed by the Con­ven­tion and for China’s in­tents and pur­poses in in­vok­ing its ex­plicit right un­der the Con­ven­tion to ex­clude dis­putes con­cern­ing mar­itime de­lim­i­ta­tion and his­toric ti­tles.

This ex­ces­sively ex­pan­sive in­ter­pre­ta­tion of the ju­ris­dic­tional scope will present great dif­fi­culty in per­suad­ing other non-par­ties such as the US to rat­ify the Con­ven­tion in the fu­ture, be­cause their great­est fear is that a court or tri­bunal may abuse its ju­ris­dic­tional com­pe­tence.

This ex­ces­sively ex­pan­sive in­ter­pre­ta­tion will bring great harm to the in­ter­na­tional le­gal sys­tem and its le­git­i­macy and ef­fec­tive­ness.

If the tri­bunal and ar­bi­tra­tors are ra­tio­nal and se­ri­ous, they should cor­rect their mis­takes and make up for what they have ne­glected to do, and con­sider the is­sues not yet con­sid­ered but that should have been con­sid­ered.

The au­thor is pro­fes­sor of in­ter­na­tional law and chief ex­pert at Wuhan Univer­sity In­sti­tute of Boundary and Ocean Stud­ies.

Sienho Yee

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