Spotlight: Two law experts in Britain question arbitral tribunal's jurisdiction over South China Sea dispute

Two leading experts on international law in Britain have recently published two research papers, both concluding that an arbitral tribunal which allowed the South China Sea case initiated by the Philippines against China to go ahead is not convincing in many respects.

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, were the experts.

JURISDICTION QUESTIONABLE

In 2013, the Philippines unilaterally filed compulsory arbitration against China at the Permanent Court of Arbitration in The Hague with respect to the two sides' dispute in the South China Sea.

The dispute is obviously concerning sovereignty and maritime delimitation, which are beyond the stipulations of the United Nations Convention on the Law of the Sea (UNCLOS), according to a recent research paper by Tzanakopoulos originally published in the Social Science Research Network (SSRN).

"Both the Philippines and the Tribunal sought to carve out distinct and limited 'disputes' over which the Tribunal could make a decision," but this carving-out exercise "smacks of artificiality," he wrote.

China made a declaration in 2006 in accordance with Article 298 of the UNCLOS, making it clear that China would exclude disputes on maritime delimitation from compulsory arbitration.

The paper further elaborated: "It is difficult to see how questions of entitlement generated by maritime features are not inextricably intertwined with issues of delimitation as well as with issues of sovereignty over the relevant features."

Tzanakopoulos' analysis on the jurisdiction of the arbitral tribunal was echoed by Whomersley.

In his paper published last week by the Chinese Journal of International Law, an independent and peer-reviewed research journal, Whomersley wrote that "questions of territorial sovereignty, status of features and maritime delimitation are inextricably linked; to consider only one element out of these three is unreal and artificial, and worse it risks producing a distorted result."

The tribunal "failed to recognize that the fundamental dispute is about the sovereignty over the features in the South China Sea, and that the status of the features, such as whether they are low-tide elevations or 'rocks,' is a question which can only logically be answered once the sovereignty dispute has been resolved," Whomersley wrote. "To put it succinctly: the Tribunal should have got below the surface of the Philippines' claims, but it did not."

ESTOPPEL

In 2002, China and the Association of Southeast Asian Nations (ASEAN), including the Philippines, signed the Declaration on the Conduct of Parties in the South China Sea (DOC), which stipulated that "the 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."

Whomersley argued that "there is a strong case for saying that the Philippines was estopped from ignoring the declaration and proceeding to the institution of legal proceedings."

Tzanakopoulos, in his paper, observed that "the relevant provision therein regarding resolution of disputes by negotiation was drafted in clearly binding terms, stating that the parties 'undertake' to resolve disputes through friendly consultations."

ADMISSIBILITY

The South China Sea disputes involve many of the littoral states, and any determination by the tribunal may have the effect of rendering states other than the Philippines and China the "indispensable third parties," Tzanakopoulos wrote in his paper.

He argued that "the South China Sea disputes, as multilateral disputes, are not fit for determination in the context of a bilateral, adversarial proceeding between only two of the many disputing states."

POTENTIALLY DESTABILIZING

Whomersley, in his paper, also pointed to the potential damage to international relations by an unconvincing decision of the tribunal.

He warned "it is potentially destabilizing to the general course of international business that the Tribunal accepted that the Philippines could resile from the undertakings in a formal document like the Declaration (DOC)."

Tzanakopoulos also warned in his paper: "The complex and multilateral nature of the relevant disputes" in the South China Sea could lead to "a rather hard case" for the arbitration system.

"Hard cases make bad law, and it may be that the Annex VII Tribunal in the Philippines-China dispute has not taken this fully under advisement," he explained.

The scholar suggested that the best solution to these complex disputes is putting aside disputes and engaging in joint exploitation of the territory in the South China Sea, put forward by the late Chinese leader Deng Xiaoping decades ago.

"Perhaps zones of cooperation will do much to allow the littoral states to enjoy the benefits of the South China Sea without all the fallout that adjudication inevitably produces in the face of strong objections," he concluded in his paper. Endi