Interview: SCS arbitration tribunal's erroneous exercise of jurisdiction violates UNCLOS: law expert

When the South China Sea (SCS) arbitration tribunal ruled that it has jurisdiction over Phillipines' case against China, it had gravely violated the United Nations Convention on the Law of the Sea (UNCLOS), an expert on the law of the sea said on Friday.

China has made a written statement in 2006, excluding and refusing to accept "any compulsory jurisdiction over any disputes concerning interpretation or practice of the Convention" involving "maritime boundary delimitation, territorial sovereignty, military confrontation, and/or historical titles," said Professor Kuen-chen Fu, Dean of the South China Sea Institute from China's Xiamen University.

According to article 298 of the UNCLOS, such a written statement entitled China to be exempted to the present compulsory situation, said Fu when meeting international journalists in The Hague.

"However, the Philippines unilaterally initiated a wrapped arbitration case against China in January 2013. And regretfully, the tribunal failed to pierce the veil of forged cause of action of the Philippines case," said the professor, who graduated from National Taiwan University and the University of Virginia School of Law.

In this case, the Philippines raised submissions on entitlements of maritime features which it has no sovereignty and asserted that these submissions did not relate to sovereignty or delimitation, therefore not excluded from compulsory settlement.

The Philippines, supported by the United States, is trying to challenge sovereignty issues by playing tricks to say their claims are not setting for the sovereignty issues but only for interpretation of the convention, explained the professor.

"We all know that 'Land dominates the sea' is the basic principle in the Convention. As long as the sovereignty issue is not settled, how could you decide on issues such as claims of territorial sea, the Exclusive Economic Zone (EEZ) and the continental shelf (CS)? " Fu argued.

Noting the Philipines' self-made term of "maritime entitlements" which refers to the territorial sea, the EEZ or the CS that an island or a rock can claim or not, the law expert said the cause of the action is a forged one, and the arbitrators should have the obligation "to pierce the veil."

Regretfully, the tribunal endorsed the Philippines' argumentation and is expected to further issue its award on the merits of the Philippines's claim in coming months, though China has announced its disagreement and refusal to the award.

"Many similar dispute settlement precedents have indicated clearly that such an interpretation is always done when a real maritime boundary line delimitation case is put in front of the tribunal. The arbitral tribunal should follow it," Fu argued.

For the scholar who has been studying the South China Sea issues in the past decades, the tribunal's erroneous exercise of jurisdiction constitutes a grave violation to the UNCLOS and will bear negative impact on the legal order of the sea that negotiators of the Convention sought to defend.

"More than 180 countries discussed for nine years to reach this Convention. Why did we people of the world decide to open up a back-door for all the contracting party states to escape from any compulsory third party adjudication procedures? Because it has always been known from experiences that any dispute involving or related to maritime boundary delimitation, territorial sovereignty, military confrontation or historic titles, is hard to be settled compulsorily," said Fu, referring to the exemption statements.

Actually, the respect for the contracting parties' choice of proper methods to settle disputes on their own will, is evidenced by the articles of the Convention.

"Some 30 countries have made the same written statement, as China has done, to exclude the compulsory jurisdiction. Now an ad hoc chamber of arbitration organized by five appointed lawyers wants to change the text and its effectiveness of the Convention, which was agreed up among some 180 countries. Isn't this improper?" questioned the professor.

"Courts could make wrong decisions. History has told us that some of the dissenting opinions would prove to be the 'correct law' later and contribute to the progress of law," he said.

"By opposing, criticizing and correcting what went wrong with the South China Sea arbitration case, China is actually contributing to the progress of the international law," he told Xinhua. Endi