Spotlight: Philippine-initiated arbitration on South China Sea undermines international law

The Philippine-initiated arbitration on the South China Sea issue is but a political farce under "legal" pretexts aiming to fake "a new reality," which provokes both principles of international law and order, said an article published in a renowned Chinese biweekly magazine.

The article, which appeared in the latest edition of the biweekly Qiushi, said the arbitration is believed to endanger the foundation of the existing international law and order by defying basic respect for sovereignty, territorial integrity and voluntary choice by sovereign states, as it seeks maritime jurisdiction overriding national sovereignty and other international laws.

China rejects the arbitration for its failure to conform with international law, said the article carried by the magazine, one of the publications of the Central Committee of the Communist Party of China (CPC).

The magazine's comment is made prior to an arbitral tribunal ruling due on July 12, reiterating the Chinese government's stance of no-acceptance of and non-participation in the arbitration.

It also reaffirmed China's insistence on its sovereignty and rights in the South China Sea based on historical facts and legal principles.

The Philippines unilaterally initiated the compulsory arbitration proceedings of the International Tribunal for the Law of the Sea (ITLOS) in January 2013, prompting a five-member arbitral tribunal presided over by a former Japanese diplomat.

However, the UN Convention on the Law of the Sea obliges peaceful solution of disputes in an agreed way out of voluntary choice, and encourages comparison of notes on differences over its application before seeking a third-party intervention.

Meanwhile, the tribunal has no jurisdiction over territorial claims and allows delimitations, including maritime demarcation.

The article criticized the arbitral tribunal for overstepping its jurisdiction and abusing the UN sea convention to consider the Philippine submissions.

The tribunal has chosen to ignore Manila's obligation to a negotiated solution under bilateral deals and the 2002 Declaration on the Conduct of Parties in the South China Sea by China and all members of the Association of Southeast Asian Nations, and to defy the delimitations China has made to the UN sea convention.

The moves amount to a de facto nullification of convention members' self-choice rights and the delimitations so far made by some 30 members, undermining the integrity of the convention's dispute settlement mechanism.

Worse, it reaches beyond the convention's jurisdiction. It feeds Manila's illegal territorial claims under technical pretenses, attempting to deny China's sovereignty herein through distorted interpretations of the convention, in a way not to pride itself, the article notes.

The Qiushi article also denounced the arbitral tribunal's misconduct in ascertaining facts and law application.

The tribunal has deliberately misinterpreted China's position paper on the arbitration by quoting out of the context, it points out.

As regards dispute settlement and the legal binding force of related accords, the tribunal reduces readings to be of single document and cites highly disputable judicial precedents in favor instead of more ones otherwise, so as to arrive at a conclusion that China and the Philippines do not rule out a third-party intervention.

On the legal status of the reefs concerned, the tribunal chose to discriminate them from a macro geographic context in defiance of China's insistence on deeming the Nansha Islands as a whole, says the article.

The arbitral tribunal is also found to have selectively collected evidence to fit but only to contradict presumptions against China.

While determining that the Manila requests have nothing to do with territorial claim and maritime demarcation, the tribunal used related bilateral consultations to justify Manila's initiation of the arbitration.

The Qiushi article also noticed suspicious shifts in basic stance of key figures in the arbitration. For instance, Professor Alfred Soons of The Netherlands, a longtime advocate for legal status of reefs as an inextricable part of maritime demarcation, supports their disconnection instead after being involved as an arbitrator, believed to argue for the tribunal's jurisdiction and Manila's ill-purposed evasion of China's delimitation.

On procedural justice, the article elaborated on China's opposition to the tribunal presidency held by former Japanese diplomat Shunji Yanai. It also disputed the geographic representation and cultural background of the five arbitrators for the sake of an unbiased judgement.

What the arbitral tribunal has done runs against the international principle for peaceful solution of disputes, and it has worked to worsen disputes and destabilize the situation in South China Sea, stresses the article. Endi