Tribunal should fix its mistakes and oversights
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.