By Ding Duo
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.
–The Daily Mail-China Daily News Exchange Item
