Interview: Tribunal should make amends for South China Sea arbitration: expert

The arbitral tribunal should correct its mistakes and make up for the homework it has neglected to do, chief expert at the Institute of Boundary and Ocean Studies of Wuhan University Sienho Yee told Xinhua in an exclusive interview Wednesday.

The tribunal has made four major mistakes, said Yee, who was the main convener of the seminar on the South China Sea arbitration case in The Hague on June 27.

First, Yee said, experts found that the arbitration has violated many international rule of law standards. "The arbitral tribunal does not properly identify or prove the existence of the real disputes; the membership of the tribunal does not represent the main forms of civilization or principal legal systems in the world," Yee said.

Moreover, the fact that all the tribunal' s fees were paid by the Philippines seems to explain why the arbitration proceeds at a "frightening speed."

Besides, the tribunal deliberately changed the singular "is" used by China to describe the Nansha Islands into the plural "are," thus failing to regard the Nansha Islands as a single unit for sovereignty, maritime rights and delimitation purposes.

"The true rule of law requires us not to be misled by the superficial image of resorting to arbitration, but to examine the substance of all the concrete issues involved," Yee cited the experts at the seminar as saying.

Second, Yee said the experts believed that the arbitral tribunal fails to properly fulfil its duties, especially when compared to the International Court of Justice.

Yee said that experts have observed that there have been over 14 cases of non-appearance internationally. When a non-participation scenario happens, international tribunals should take a very cautious approach to assure fair treatment for both sides, especially to ensure that the non-appearing side would not be punished simply because of its non-appearance, he said.

However, "the tribunal completely ignores the Louisa case, which is favorable to China and is directly applicable to the interpretation of China' s exclusion of disputes 'concerning' or 'relating to' maritime delimitation," Yee said.

Third, "the award on jurisdiction does not pay due respect for historical facts and makes some general, convoluted comments," Yee said.p Yee said he had the impression that experts observed that the United Nations Convention on the Law of the Sea (UNCLOS) does not override historic titles or rights in general, which means the two may exist in parallel.

Fourth, Yee said, experts have observed that "the arbitral tribunal adopts an excessively expansive interpretation of the jurisdictional grant, plays a game of words, and distorts the text of the Convention." He said this wrongful exercise of the jurisdictional right presents a substantial damage to the international rule of law.

What's more, Yee said this excessively broad interpretation of the tribunal's jurisdictional reach will make it difficult to persuade the United States and other non-parties to ratify the Convention in the future, "because the United States' greatest fear is that a court or tribunal may abuse its jurisdictional competence."

"If the arbitrators are rational and serious, they would have to listen to these views from the bottom of the hearts of the experts," Yee said.

The experts emphasized that the complexity of the South China Sea issue and the myriad choices available to solving it make it an impossible task for a court or arbitral tribunal to settle it, but negotiation was the most appropriate way to settle the issue.

"In the next phase, the tribunal and the arbitrators should correct their mistakes and make up for what they have neglected to do, and consider the issues not yet but should have been considered," Yee said. Endi