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The South China Sea arbitration award bad in law

2021-07-16 10:08:59       source:NISCSS

July 16, 2021

Nearly five years have passed since the Philippines unilaterally initiated arbitration on its South China Sea dispute with China. These past five years have witnessed remarkable changes in both the situation in the South China Sea and relations between the two countries. This serves as an enlightening reminder that only when the arbitral award is thrown into the dustbin, can the South China Sea issue truly return to the track of negotiation and consultation for a long-term solution. However, in recent years, there have been calls both within and outside the region for the arbitral award to be accepted as international law. Perhaps, it is out of misunderstanding by the ill-informed on third-party compulsory dispute settlement mechanisms, or misinterpretation by a small number of people on the rules of the United Nations Convention on the Law of the Sea (UNCLOS). But in the main, it reflects the attempts of certain countries in the region, based on false strategic judgments, to affirm the award as a means to strengthen their unilateral claims, as well as the efforts by some forces outside the region to stir up trouble in the South China Sea by seeking to drive a wedge in relations between China and ASEAN countries. All this will serve neither the sound development of the international rule of law, nor enduring peace and order in the South China Sea.


First, the arbitral ruling is not a contribution to international rule of law.


According to the fundamental logic of those who believe the "ruling is international law", the ruling, issued by the arbitral tribunal, is legally "final and binding". However, the ruling is invalid because the tribunal exceeded its jurisdiction.


Disregarding the basic fact that UNCLOS does not regulate matters of territorial sovereignty, the arbitral tribunal ignored China's position and opinions expressed through public channels, accepted the Philippines' claims carefully designed to circumvent legal obstacles for it to initiate arbitral proceedings, and ruled on the sovereignty of the islands and reefs in violation of the basic principles and the spirit of prudence and self-discipline that international judicial and arbitral organs usually follow in their practice. The arbitral tribunal's exercise of jurisdiction over matters in which China has lawfully excluded the compulsory settlement mechanism under UNCLOS undermined the balance and equity of UNCLOS as a "package agreement". The arbitral tribunal exercised its "discretionary power" in such an extreme way that it freed itself from the legal constraints to exercise jurisdiction arbitrarily. This has not only shook the confidence of the states parties in the UNCLOS dispute settlement mechanism, but also undermined the reputation established by international judicial and arbitral organs over the years.


The arbitral award, which goes against the purposes and principles of UNCLOS as well as the rules of international law on treaty interpretation, attempt to create law rather than interpret it, undermining the stability and predictability of the UNCLOS system. The International Court of Justice once emphasized that interpretation is not amending a treaty, nor is interpreting a treaty into something not expressly provided for or necessarily included in the treaty. The treatment of issues such as "historical rights", "mid-ocean archipelago" and "regime of islands" during the UNCLOS III Conference was a balance of interests among all the countries participating in the negotiations, representing the basic consensus reached among them. The tribunal arbitrarily changed or even created maritime rules on these issues, which not only subverted the qualification of states as subjects of international law, but also diluted the nature of international law — a consensus between states — thus running counter to the spirit of the international rule of law.


In addition, there were signs of political manipulation behind the South China Sea arbitration case. Before initiating the arbitration, the Philippine government did not disclose to the government of China on its intentions and specific claims, which is not the usual way to initiate an international arbitration. The then president of the International Tribunal for the Law of the Sea, ShunjiYanai, was a Japanese national, whose country has a dispute of a similar nature with China in the East China Sea. Yanai was concurrently chairman of an advisory panel for Japan's Prime Minister on constitutional amendment to allow military actions overseas, playing a role in strengthening the Japan-US alliance and coordinating Japan-US policy on the Diaoyu Islands. During the hearing, the arbitral tribunal not only allowed the Philippines to submit additional evidence several times beyond the reasonable time limit, but also exceeded its authority by searching on behalf of the Philippines for evidence based on which the award in favor of the Philippines could be issued. All these not only violated the arbitral tribunal's own procedural rules, but also deviated from the general rules of evidence in international law.


Second, the ruling is not written for fairness and justice.


The fundamental role of international dispute settlement mechanisms is to maintain international justice. However, against the principle of "the land dominates the sea" in international law, the arbitral ruling attempted to deny China's territorial sovereignty by misinterpreting and misapplying UNCLOS, with a long list of fallacies in interpretation and application of the law, fact-finding and admissibility of evidence.


On the issue of historic rights, the ruling ignored the role of general international law, including customary international law, in regulating matters not exhausted by UNCLOS, and regarded UNCLOS as the only instrument for evaluating the legitimacy of historic rights.This has not only distorted the parallel relationship between UNCLOS and general international law, but also attempted to erase the unique historical accumulation, legal implications and cultural specificity of China's long-standing development and jurisdictional activities in the South China Sea.


On the issue of mid-ocean archipelagoes of continental countries, the ruling ignored the fact that China claims the Nansha Islands as a single unit and misread China's positions as claiming individual marine features in the Nansha Islands. Proceeding from the status of individual islands and reefs to generate maritime rights, this approach in logic is to reject in advance the claim to the integrity of the archipelago, and its conclusion is based on mistaken fact finding. In dealing with the question of the integrity of the archipelago, the ruling not only failed to take a close look into the history of UNCLOS negotiations, but also disregarded widespread international practices of continental countries on mid-ocean archipelagoes.


On the issue of status of island features, the arbitral award rewrote the UNCLOS provisions on the regime of islands, by adding criteria on settlement, community and self-sufficiency. Starting with denying the island status of Taiping Island not included in the Philippines' request for arbitration, the ruling found no island among the Nansha Islands had full entitlement to an exclusive economic zone and continental shelf. Contrary to the legal principle of "no trial without complaint", this approach was obviously erroneous in legal interpretation and fact-finding, leading to a conclusion vastly different from many international practices on the regime of islands.


Third, the ruling is not a panacea for dispute resolution


The ultimate goal of international judicial and arbitral organs is to settle disputes. However, this objective cannot be reached by an ill-founded ruling issued by a arbitral tribunal without any legitimacy that was politically motivated and manipulated and was rejected by the other party based on sound and sufficient legal grounds. The South China Sea issue is so complex as it is related to so many countries, intertwines disputes on territorial sovereignty with issues of maritime delimitation, and involves historical, political, legal and other factors. It is by no means can be resolved by a ruling with a predetermined conclusion and so many flaws.


In the past five years, Sino-Philippine relations have witnessed remarkable improvement and have enjoyed sound development, and the South China Sea has become more stable, not because the arbitral award has settled the disputes, but because the current Philippine administration has adopted a rational policy on the South China Sea and reached agreement with China on putting aside the award and not dealing with the South China Sea issue based on the award. If one is obsessed with the idea that the ruling is international law and indulge the illusion that China will accept an unfair and unjust judgment unilaterally imposed on it, the result will be that the dispute will be trapped in a dead end with no way out.


China rejected the arbitral ruling, to safeguard its legitimate rights as well as the integrity and authority of international law, including UNCLOS. It will surely take a long time to find a proper solution to the South China Sea issues. In exploring such a solution, all parties concerned should exercise restraint and patience, abandon any illusions that are legally groundless, logically unreasonable and practically unhelpful, and truly follow "a spirit of mutual understanding and cooperation" as stipulated in UNCLOS, in an effort to jointly maintain the hard-won peace and stability in the South China Sea and create a future of win-win cooperation.


The author is deputy director and associate research fellow of the Research Center for Ocean Law and Policy at the National Institute for South China Sea Studies.


Link: http://www.chinadaily.com.cn/a/202107/16/WS60f0cd2fa310efa1bd6623d2.html