The South China Sea Arbitration Case Could Exacerbate Disputes in the South China Sea

On October 29, 2015, the Arbitral Tribunal of the Philippines vs. China Arbitration case in the South China Sea (“the Tribunal”) ruled that it had jurisdiction to hear the case and found the Philippines’ submissions admissible. The Tribunal’s decision is illogical, unfair, and risks escalating tensions in the South China Sea.

The United Nations Convention on the Law of the Sea (“UNCLOS” or “the Convention”) created dispute settlement mechanisms, including arbitration, to ensure a fair and effective implementation of the Convention, so as to bring to bear equitable and authoritative decisions by the international judiciary and help mitigate and resolve maritime disputes. But any adjudication or arbitration which disregards history and reality and is based on biased notions will not only cause it to miss the goal of the UNCLOS, but also aggravate the dispute.

The Tribunal’s jurisdiction and admissibility decision effectively refutes the entire “Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines” (“Position Paper”) issued on December 7, 2014. The decision has also negated China’s 2006 declaration on the exclusion of maritime delimitation disputes and historic title from compulsory arbitration and other compulsory dispute settlement procedures,overlooked the Declaration on the Conduct of Parties in the South China Sea (“DOC”), and disregarded the priority given to consultation and negotiation in dispute resolution. The Tribunal essentially determined that the Philippines’ action was not vexatious, and that the Parties had exchanged views as required by the Convention. It also found that the Philippines’ submissions fall within the scope of application and interpretation of UNCLOS, and that the disputes do not concern territorial sovereignty or maritime boundary delimitation.

The Tribunal established its jurisdiction to decide on seven of the Philippines’ submissions, mainly seeking the Tribunal’s declaration that Huangyan Dao (Scarborough Shoal) and the Nansha Islands (the Spratlys), occupied and controlled by China, do not generate entitlements to an exclusive economic zone and a continental shelf, and that China has unlawfully interfered with the exercise of the Philippines’ rights under the Convention. The Tribunal’s jurisdiction over the remaining eight submissions (mainly seeking the Tribunal’s declaration that China’s claims to “historic rights” with respect to the maritime areas of the South China Sea are without lawful effect, that the “nine-dash line” is contrary to the Convention, and that China has violated its obligation under the Convention by virtue of its activities on some features in the Nansha Islands) will be determined together with merits.

Given that the basic facts were ignored and legal principles underpinning UNCLOS defied, the Tribunal not only failed the principles of justice, neutrality, and impartiality, but also defended and spoke up for the Philippines’ unfounded and unreasonable claims. Particularly, the Tribunal’s decision on jurisdiction was completely biased, considering that nearly all of the Philippines’ claims were acceptable. It chose to overlook and deliberately distort China’s legitimate claims logically expounded in its “Position Paper.” Again, this was unjust and has failed to serve the purpose and objectives of dispute resolution.

First of all, the Tribunal’s finding that the DOC is not legally binding has, ipso facto, denied the parties the use of other means of dispute resolution provided under the Convention. To manage and control disputes and maintain peace and stability in the South China Sea, China has engaged in negotiations with the ASEAN countries since the 1990s to find methods of dispute settlement suited to the region’s specificities and that embody Asian approaches to problem solving. After consulting and negotiating for more than a decade, China and the ten ASEAN countries adopted the Declaration on the Conduct of Parties in the South China Sea in 2002, which since becoming effective, has helped abate South China Sea conflicts and engendered in the region a fairly long period of peace and stability.

Article 4 of the DOC clearly provides that “[t]he Parties concerned undertake to resolve their territorial and jurisdictional disputes by peaceful means, without resorting to the threat or use of force, through friendly consultations and negotiations by sovereign states directly concerned, in accordance with universally recognized principles of international law, including the 1982 UN Convention on the Law of the Sea.” But what baffles is the Tribunal’s supposition that the DOC “was not intended to create legal rights and obligations,” and that it represents only “mutually agreeable compromise” and a “stop-gap measure.” This is a misrepresentation of the undertaking by the Parties concerned to resolve disputes “through friendly consultations and negotiations.” The denial that such undertaking is not binding is certainly not constructive, but even worse, encourages undermining actions of the entire DOC adopted by China and the ten ASEAN countries. The Tribunal’s dismissal of the peaceful route of dispute resolution chosen by eleven Asian countries is clearly unpersuasive.

Secondly, the Tribunal has extended its jurisdiction at will, and has relied on the pretext of interpreting the legal status of maritime features to deprive China of its sovereignty and sovereign rights in the South China Sea. The Tribunal’s action has seriously betrayed the intents and purposes of the Convention.

“Maritime features”, which include islands, rocks and reefs, low tide elevations, and shoals, possess complex physical geographic characteristics and a multiplicity of legal statuses, according to which they generate different maritime rights. Maritime delimitation would therefore create different legal effects. Such complexities are incapable of being regulated only by the Convention, therefore, some of these are governed by customary international law. As such, Article 121 of the Convention only generally provides the legal status of islands and reefs. International judicial practice has yet to evolve a standard capable of rendering objective judicial determination of the legal status of other features. More broadly, whether the legal status of maritime features directly affects territorial sovereignty is still unclear.

But what we know for certain is that any determination on the legal status of maritime features immediately alters a country’s territorial size, i.e., either expands or reduces its territorial sovereignty. Clearly, the Tribunal’s disregard for China’s lawful and legitimate rights to the South China Sea islands and their adjacent maritime area is an arbitrary act on the part of the Tribunal to rob China of its territorial sovereignty, and which has exceeded the Tribunal’s power and undermined the fundamentals of the contemporary international law regime.

By proceeding to adjudicate despite opposition, the Tribunal will neglect to address the core of the dispute. It will therefore complicate the South China Sea dispute between China and the Philippines and provoke new disputes. The core of the dispute lies in territorial sovereignty and maritime delimitation. Regrettably, the Philippines has breached the consensus it has reached with China and has reneged on its commitments. Its abuse and distortion of international law is a betrayal of the spirit of the Convention. The Philippines has intentionally disguised the de facto disputes regarding territorial and maritime delimitation beneath the cloak of historic rights, the legal status of islands and reefs, and the interpretation and application of the Convention. This is a breach of the principle of “state consent.” And its unilateral institution of arbitration proceedings was a blatant giveaway of its political intentions.

Yet, the Tribunal somehow found that it has jurisdiction to consider the Philippines’ claims, when it well knew that the Philippines has territorial disputes with China. The Tribunal’s findings will not resolve the real dispute, but will instead cause the South China Sea to be mired in greater tensions. Even sadder is that the Tribunal has digressed from its primary duty to stay impartial and administer justice, and gone off on a tangent that takes it far away from its mandate to resolve international disputes peacefully. Perhaps we now have reason to urge these arbitrators to return to their conscience and integrity.

The current international system is increasingly demanding countries to participate in international affairs and consult with each other. It disapproves of harboring prejudice and biased treatment of any country, and discourages the arbitrary exercise of supra-national legal authority to serve individual national political agendas. Without these principles, in this contemporary society where we live together and our interdependence deepens more than ever, the cause of global governance towards democracy and the rule of law would unfortunately suffer from a hard time.

Wu Shicun is President and Senior Fellow of the National Institute for South China Sea Studies, and a member of ICAS’s Advisory Board

This commentary originally appeared in the Diplomat