Spotlight: Arbitral tribunal's jurisdiction over China-Philippine maritime disputes abuse of international law -- experts

An arbitral tribunal's jurisdiction over South China Sea disputes between China and the Philippines is abuse of international law and exerts baneful influence worldwide, experts have said.

"For the most part, the tribunal hasn't answered satisfactorily with respect to why there is a dispute under the United Nations Convention on the Law of the Sea, and also how these claims do not relate to sovereignty, and in my view they do (relate to sovereignty)," Antonios Tzanakopoulos, an associate professor of public international law at the University of Oxford, said in a recent interview with Xinhua.

In 2013, the Philippines unilaterally filed an arbitration case against China at the Permanent Court of Arbitration (PCA) in The Hague, the Netherlands, with respect to the two countries' dispute in the South China Sea.

The Philippines' action went against an agreement it reached with China in the mid-1990s on settling their disputes in the South China Sea through negotiation. The agreement has been reaffirmed in many other bilateral documents since then, including the joint statement the two countries issued in September 2011.

China maintains that the tribunal handling of the arbitration proceedings has no jurisdiction over the case, which is in essence about territorial sovereignty and maritime delimitation.

Territorial issues are beyond the scope of the UN Convention on the Law of the Sea (UNCLOS), and China has excluded maritime delimitation from compulsory arbitration in a declaration it made in 2006 in accordance with Article 298 of UNCLOS. Therefore, China has made it clear it will not accept or get involved in those proceedings.

Tzanakopoulos noted the tribunal "hasn't to a large extent answered how the claims put forward by the Philippines do not fall within the Chinese exceptions to the jurisdiction, because the convention allows every state to exclude some disputes from the jurisdiction of the relevant tribunals."

"The dispute settlement system in UNCLOS is not the best way to go about it, if this is done unilaterally by states starting disputes against other states on a bilateral level," he said.

In the view of Peter Li, an associate professor of the University of Houston Downtown, it was unfair for the tribunal to accept the case brought forward by the Philippines.

First, China's opposition to the arbitration proceedings was rejected by the PCA. The admission of the Philippine's unilateral arbitration request was indicative of the Court's position biased toward Manila, according to Li.

Second, all of the claims made by the Philippines were admitted by the tribunal while China's arguments have all been rejected by the court, including its calls for the exclusion of delimitation of maritime boundaries from compulsory arbitrary proceedings, and to follow peaceful settlement and consultation principles agreed among Southeast Asian countries, he said.

Third, the tribunal has abused its mandate granted by UNCLOS by involving itself in a territorial dispute that it has no authority to rule over, he added.

Due to the unfairness of the tribunal's actions, China has no legal obligations to participate in or to accept the verdict, Li said.

"China's rejection of and non-participation in the arbitration proceedings are in compliance with UNCLOS," he added.

The expected ruling will stoke tensions in the South China Sea, as it could send a wrong signal to Manila that it has the backing of the international community behind its territorial claims, encouraging it to turn a blind eye to China's bid of peacefully settling the dispute through bilateral talks, Li said.

Greg Austin, a professor at University of New South Wales Canberra, told Xinhua that the South China Sea issue clearly involves two very separate issues, one is the sovereignty dispute around the Nansha Islands and the other one is the maritime rights dispute which is covered by UNCLOS, which China is a signatory to.

The two issues are "very dangerous combination," said the professor.

"There are no easy solutions by the international laws when the combinations of the two disputes exist. While the Philippines is quite within its rights to use UNCLOS, that will not answer any questions of territorial sovereignty and the Permanent Court will make no judgment and can make no judgment on territorial sovereignty," he said.

Yasser Gadallah, director of the Chinese-Egyptian Research Center at Helwan University, said that the Philippines' resort to arbitration requires China's approval.

"Arbitration requires the consent of the two concerned parties that resort together to an international arbitration committee whose decisions are binding for both of them," the expert told Xinhua.

A 2002 Declaration on the Conduct of Parties in the South China Sea signed by China and the 10 member states of the Association of Southeast Asian Nations (ASEAN), including the Philippines, states that all parties should resolve their disputes peacefully and avoid any move that would complicate or escalate the situation.

"I believe that the agreed-upon pact between China and the ASEAN countries can represent a suitable framework to resolve the Filipino-Chinese territorial dispute," said Mahmoud Allam, former Egyptian ambassador to China. Endi