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Niu Qingbao | Arbitral tribunal on South China Sea ignored key factors

Published:Thursday | July 21, 2016 | 7:00 AM
Niu Qingbao

On July 12, 2016, the Arbitral Tribunal in the South China Sea rendered an award in an attempt to undermine China's territorial sovereignty and maritime rights and interests in the South China Sea. The tribunal seemed to have ignored some key factors:

First, it ignored its own illegality. The tribunal quoted as the legal basis of its very existence the United Nation's Convention on the Law of the Sea (UNCLOS). True, Article 288 allows for compulsory arbitration. 'Inconveniently' for the tribunal, UNCLOS has another article, Article 298, which allows for optional exceptions. Declarations of optional exceptions made by state parties in accordance with this article constitute an integral part of UNCLOS. China and about 30 other countries made such declarations of optional exceptions. Article 298 and China's declaration of optional exceptions, however, were wilfully distorted so they could be "conveniently" disregarded by the tribunal.

Second, it ignored the agreement between China and the Philippines to solve their disputes through bilateral negations, which has been reaffirmed time and again in many bilateral legal documents as well as the Declaration on Conduct of Parties in the South China Sea (DOC). For the information of the tribunal, the DOC, signed by China and ASEAN countries, including the Philippines in 2002, explicitly stipulates that "the parties concerned undertake to resolve their territorial and jurisdictional disputes by peaceful means, through friendly consultations and negotiations by sovereign states directly concerned".

 

VIOLATION OF CORE NORM

 

By unilaterally initiating the arbitration, the Philippines has gone back on its solemn commitment and violated a fundamental and core norm in international law - pacta sunt servanda (agreements must be kept). Again, the arbitrators turned a blind eye, qualified themselves to exercise jurisdiction over the arbitration case despite China's consistent and explicit objection, and denied China's right to seeking dispute settlement of its own choice as provided by articles 280 and 281 of the UNCLOS.

Third, it ignored the crux of the subjects of the arbitration. You don't need to be a legal expert to know that the subjects of the arbitration are, in essence, territorial disputes and maritime delimitation between China and the Philippines and are, therefore, none of the business of an arbitral tribunal unilaterally initiated in violation of the UNCLOS and general international law. Even the United Nations and International Court of Justice can't solve such disputes without consent of the parties concerned, let alone a temporary tribunal of five individuals, one that was established at the unilateral request of one party over the explicit objection of the other and lacks credibility. Only through peaceful negotiations between parties directly concerned, with full respect of historical facts and international laws and on the basis of mutual understanding and mutual accommodation, can a lasting solution be found. But none of the arbitrators seemed to care.

Fourth, it ignored fundamental ethics of arbitration. Third-party dispute settlement mechanism shall be founded on objectivity and impartiality with peaceful settlement of disputes as its fundamental purpose. But sorry, no trace of objectivity and impartiality can be found in the award of the tribunal.

Fifth, it ignored its own lack of authority and tried to impose on the world its own criteria of "island" or "rock". By declaring that none of the islands in the Nansha Islands is an "island", the tribunal has shown a total disregard of geographic facts. Its ability to deny islands being islands is sure to knock the audience dead. Maybe your house will no longer be a house. Who knows?

No wonder the award is so arbitrary. Thankfully, the tribunal is a temporary one and is already past tense.

Fortunately, this tribunal and its award don't carry legal authority. It helps to clarify, though, that this tribunal has nothing to do with the United Nations. It is no International Court of Justice or Permanent Court of Arbitration, although the latter provides it with secretarial service. It has little to do with the International Tribunal for the Law of the Sea (ITLOS) other than that four out of five of the arbitrators were designated by the then president of the ITLOS. As a matter of fact, this is no more than a temporary arbitral tribunal established at the unilateral request of the Philippines, comprising five arbitrators. That's it.

• Niu Qingbao is the Chinese Ambassador to Jamaica. Send feedback to columns@gleanerjm.com.