Op-ed: South China Sea arbitration turned a blind eye to UNCLOS, exceeded own competence and exposed tribunal’s ignorance

File photo: South China Sea

By now it’s a well-known fact that the South China Sea arbitration was unilaterally initiated by the Philippines, and that it focused on the dispute between China and the Philippines about territorial sovereignty and sea delimitations. The Foreign Ministry of the Philippines made a statement to the effect that it filed the case to safeguard its territory. China has consistently maintained its position of not accepting or getting involved in the proceedings.

First of all, territorial issues are not subject to the United Nations Convention on the Law of the Sea (UNCLOS). China made a declaration of optional exception back in 2006 in accordance with Article 298 of the Convention, which excludes from the Convention’s settlement procedures disputes relating to sea delimitations, those involving historic bays or titles, and those related to military and law enforcement activities.

Secondly, Article 280 of Part XV holds that “nothing in this part impairs the right of signatory parties to agree at any time to settle a dispute between them concerning the interpretation or application of this Convention by any peaceful means of their own choice.” Article 281 holds that, “if the signatory states which are parties to a dispute concerning the interpretation or application of this Convention have agreed to seek settlement of the dispute by a peaceful means of their own choice, the procedures provided for in this part apply only where no settlement has been reached by such means and agreement between the parties does not exclude any further procedure.” Because China and the Philippines agreed to settle their dispute through negotiation, the compulsory arbitration procedures detailed in the Convention are not applicable.

The tribunal nevertheless disregarded China’s objections and proceeded to overstep its own jurisdiction. It referenced Article 288 and Annex VII to justify moving forward with the arbitration. Article 288 of the Convention provides that, in the event of a dispute as to whether a court or tribunal has jurisdiction, the matter shall be settled by the decision of that court or tribunal. Annex VII to the Convention provides that the absence of a party or failure of a party to defend its case shall not constitute a barrier to the proceedings.

Common sense tells us that individual parts of a law will not contradict each other. Since China made the optional exception in accordance with Articles 280, 281 and 298, it’s not a convincing argument that the tribunal based its decision on Article 288.

Can the tribunal define its own jurisdiction according to Annex VII? Mi Chenxi, associate fellow at the Institute for Ocean Development Strategy Studies at China’s State Oceanic Administration (SOA), explained that both the main body and annexes are components of the Convention. However, the annexes are only responsible for procedural matters, and in practice should comply with the main body. Part XV of “Settlement of Disputes” says that “signatory parties shall settle any dispute between them concerning the interpretation or application of this Convention by peaceful means.” It also imposes many conditions and restrictions on the application of Annex VII.

Mi said the Convention is the result of time consuming negotiations in which every party’s interests were fairly considered. The restrictions and exceptions in Section 3 of Part XV provide legal protection for signatory states to choose peaceful means to address disputes concerning their vital national interests. The preamble says that the establishment of the Convention sets a legal order for the seas and oceans with due regard for the sovereignty of all states. Issues that don’t stem from the Convention and are not regulated by the Convention should be dealt with based on the rules and principles of general international law. The arbitration procedures set in accordance with Annex VII should be initiated out of good faith. Jia Yu, deputy director of SOA’s Institute for Ocean Development Strategy Studies, said that the tribunal’s choice to acknowledge only the parts it favors while turning a blind eye to the rest will ultimately undermine the integrity of the Convention. Therefore, the tribunal’s decision is unfair, unjust, biased and lacking in any legal binding force.

Many legal authorities outside China have criticized the tribunal for exceeding the limits of its power. Dalveer Bhandari, former judge on the International Court of Justice, emphasized that the purview of international law doesn’t include dispute settlement, which depends on the consent of all involved parties. Zheng Yongnian, a professor and director of the East Asian Institute at the National University of Singapore, pointed out that the South China Sea disputes, in essence, are a political issue rather than a legal one. Since arbitration requires the consent of all parties, the legal approach is inapplicable if either party fails to consent.

Many legal professionals in the West have also expressed concern over the tribunal’s abuse of arbitration procedures. If other countries follow Manila’s example, disguising the true nature of territorial and sea delimitation claims, then the optional exceptions written into the Convention will become empty words. This would hurt the credibility of the Convention’s dispute settlement methods and also pose a threat to the existing international order. Antonios Tzanakopoulos, associate professor of public international law at the University of Oxford, and Chris Whomersley, a former deputy legal adviser to the British Foreign and Commonwealth Office, worried that the events of this tribunal may cause the Convention to be perceived as an “evil law,” which could damage the overall stability of international relations.

The five arbitrators are experienced legal practitioners. This begs the question: Why are they so ignorant when it comes to basic matters of the law? The answer is obvious. They allowed themselves to be manipulated as puppets in this political farce, and now they have no choice but to play dumb. These legal practitioners lack basic respect for the law, and we cannot look on and do nothing. 

As a founder, advocate, and builder of the international rule of law, China opposes the selective use of international law. The actions of the tribunal will not affect China's resolute stance on sovereignty, territory and the importance of maintaining peace and stability through the rule of law.