Tri­bunal needs to cor­rect its mis­takes

China Daily (Canada) - - LIFE -

The South China Sea ar­bi­tra­tion uni­lat­er­ally ini­ti­ated by the Philip­pines against China in The Hague-based Per­ma­nent Court of Ar­bi­tra­tion has vi­o­lated many in­ter­na­tional stan­dards of law and rules. To be­gin with, the ar­bi­tral tri­bunal does not prop­erly iden­tify or prove the ex­is­tence of a real dis­pute. Also, the tri­bunal does not fol­low the world’s prin­ci­pal le­gal sys­tems.

The award on ju­ris­dic­tion does not take proper cog­nizance of China’s po­si­tion. For ex­am­ple, China treats Nan­sha Is­lands as one sin­gle unit for the pur­pose of sovereignty, mar­itime rights as well as de­lim­i­ta­tion, but the tri­bunal has changed the sin­gu­lar “is” into the plu­ral form “are”, treat­ing the is­lands and reefs in the Nan­sha Is­lands as sep­a­rate units.

The award does not con­sider China’s po­si­tions ei­ther, although it sum­ma­rizes some of them su­per­fi­cially. For ex­am­ple, the tri­bunal sum­ma­rizes China’s ar­gu­ment that a 1995 joint state­ment say­ing the two coun­tries would take mea­sures with a viewto “even­tu­ally ne­go­ti­at­ing” a set­tle­ment of their dis­putes as evinc­ing an in­tent to choose ne­go­ti­a­tion only as the means to re­solve dis­putes, but this point is ab­sent from the part of the award called “the tri­bunal’s de­ci­sion”.

Be­sides, the award ac­cepts the Philip­pines’ as­ser­tion with­out an­a­lyz­ing why its claims would not de­tract from China’s sovereignty. The de­trac­tion is ob­vi­ous from the treat­ment of the com­po­nents of China’s Nan­sha Is­lands as sep­a­rate fea­tures, which would di­vide that archipelago into smaller units, and from a rul­ing that the low-tide el­e­va­tions at is­sue, which are part of the Nan­sha Is­lands, are not sub­ject to ap­pro­pri­a­tion.

The award also su­per­fi­cially claims mar­itime en­ti­tle­ment and de­lim­i­ta­tion are dis­tinct, with­out con­sid­er­ing the de­lim­i­ta­tion of 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 over mat­ters broader than the draw­ing of the line of de­lim­i­ta­tion. The ar­bi­tra­tor has com­pletely changed, with­out of­fer­ing any ex­pla­na­tion, his pre­vi­ously pub­lished po­si­tions which were fa­vor­able to China. All this vi­o­lates the fun­da­men­tal re­quire­ment of con­sis­tency in in­ter­na­tional lawand shows that the tri­bunal only pays lip ser­vice to its du­ties in ar­bi­tra­tion.

The tri­bunal adopts an ex­ces­sively ex­pan­sive in­ter­pre­ta­tion of the ju­ris­dic­tional grant and dis­torts the text of the UN Con­ven­tion on the La­wof the Sea. This wrong­ful ex­er­cise of the “com­pe­tence-com­pe­tence” prin­ci­ple, which em­pow­ers an ar­bi­tra­tion tri­bunal to rule on its ju­ris­dic­tion, causes 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 UNCLOS 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 United States to rat­ify UNCLOS in the fu­ture, be­cause their great­est fear is that a court or tri­bunal may abuse its ju­ris­dic­tional com­pe­tence. This in­ter­pre­ta­tion will also greatly harm the in­ter­na­tional le­gal sys­tem and its le­git­i­macy.

If the tri­bunal and ar­bi­tra­tors are ra­tio­nal and se­ri­ous, they should cor­rect their mis­takes and make up for what they have ne­glected to do. For ex­am­ple, they should cor­rect their de­lib­er­ate al­ter­ation of sin­gu­lar “is” used by China to de­scribe the Nan­sha Is­lands into the plu­ral “are”, cor­rect their mis­take in not con­sid­er­ing the de­lim­i­ta­tion ge­o­graph­i­cal frame­work and sit­u­a­tion in the South China Sea and the as­so­ci­ated ef­fect, and rec­tify their mis­take of ig­nor­ing the rule of law re­quire­ment of con­sis­tency and in dis­re­gard­ing the word “con­cern­ing” in ap­pre­ci­at­ing the proper scope of China’s ex­clu­sion of dis­putes on or re­lat­ing to mar­itime de­lim­i­ta­tion.

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

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