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Criticisms of Philippines Arbitral Tribunal
Not Limited to Chinese Scholars


Tian Shichen 

(The artical was originally published on Global Times by Captain(Retd) Tian Shichen, Vice President at Grandview Institution, then held the pen name of Liu Haiyang)

Accessed at: http://www.globaltimes.cn/content/988395.shtml

The new label of "self-isolation" imposed on China in the Shangri-La Dialogue has not prevented more and more Western scholars from joining China in defending its position on non-participation in and non-acceptance of the South China Sea (SCS) Arbitration initiated by the Philippines under Part XV of the 1982 United Nations Convention on the Law of the Sea (UNCLOS). Among them is Antonios Tzanakopoulos, associate professor of Public International Law, University of Oxford, who systematically criticized the stance of the Arbitral Tribunal in rendering its award on jurisdiction and admissibility in his newly published article entitled "Resolving Disputes over the South China Sea under the Compulsory Dispute Settlement System of the UN Convention on the Law of the Sea."

The article first outlined the structure of Part XV of UNCLOS, which contains in its section 2 the compulsory dispute settlement system. Contrary to the common understanding of the nature of the compulsory dispute settlement, Tzanakopoulos defined it as essentially a compromissory clause, the unique nature of which means that it is subject to a few caveats and conditions as embodied in section 1 and section 3. 

In fact, the operation of section 2 is subject to both section 1, which allows states parties to escape the compulsory dispute settlement system by agreement, and section 3, which allows states parties to exclude certain further disputes from the system. Since both section 1 and section 3 prevail over section 2 in terms of application of law, the jurisdictional discretion enjoyed by the Tribunal based on article 287 of section 2 are restricted by section 3, in particular article 298 which allowed China to exclude maters of maritime delimitation, historic rights and military activities from the jurisdiction of the Tribunal. 

Other than the above limitations and restrictions, the compulsory dispute settlement of the UNCLOS is not so mandatory also on condition that the disputes do exist between the parties, "but more crucially that it is a dispute 'concerning the interpretation or application' of the Convention." Both the Philippines and the Tribunal are quite aware of those limitations and restrictions and have tried desperately in a collaboration of efforts to "package" disputes in such a way so as to shoehorn Philippines' submissions into the narrow confines of the compromissory clause. For the Philippines, knowing that the questions of sovereignty over land (and insular) territory do not fall within the scope the UNCLOS, and thus does not constitute dispute "concerning the interpretation or application" of the UNCLOS, it was at pains to "package" the dispute as one concerning the interpretation of Article 121 of the UNCLOS on the regime of the island. 

The Tribunal was also at pains to employ all available legal techniques to facilitate the Philippines' packaging so as to keep it within the scope of the Tribunal's jurisdiction. Tzanakopoulos listed a number of techniques used by the Tribunal. One is to use legal reasoning, which may be self-contradictory or at odds with the logic. When arguing against the possibility of preclusion of jurisdiction by agreement, the Tribunal "strikes one as odd that a non-binding instrument may not contain binding obligations because it is a non-binding instrument, while a binding instrument may contain non-binding provisions despite being so binding." 

The other way is to choose laws only to its advantage. To overcome jurisdictional obstacles, the Tribunal distinguished itself from the Chagos Marine Protected Area Arbitration, which declined jurisdiction because the Chagos Tribunal was of the view that any determination of maritime entitlement requires it to determine "first" the sovereignty over the Chagos Archipelago, a mater which did not fall within the scope of UNCLOS. 

Likewise, the Tribunal also disagrees with the Annex VII Tribunal in Southern Bluefin Tuna on the point of decisive nature of express exclusion of any procedures.

The last way to entertain its jurisdiction by the Tribunal is to simply keep silent on some points, which may otherwise draw the Tribunal into a dangerous situation of loosing its jurisdiction. 

The article listed many points that the Tribunal either keeps silent or gives no reasoning on its position. For example, "the effect of the Chinese declaration under Article 298 should have been to exclude any consideration of the nine-dash line and its validity by the Annex VII Tribunal, to the extent that it represents a claim to 'historic title.' The Tribunal is oddly silent on this point." The same can also be argued with regard to the exclusion of "military activities" from the Tribunal's jurisdiction. 

As China has never denied the military purpose of the islands construction, many of the activities submitted by the Philippines may be military in nature and thus be excluded from scope of the jurisdiction of the Tribunal. Likewise, the Tribunal is also silent on this point. 

Finally, the Philippines' submission has only focused on certain selected individual features, while China has always maintained and enjoyed territorial sovereignty over the Zhongsha Islands and the Nansha Islands in their entirety. Unfortunately, the Tribunal has never touched upon this point to the extent that the propositions of China and the Philippines concern different issues and do not pertain to the same subject-maters.

Those joint efforts show that, as Tzanakopoulos rightly put it, "both the Philippines and the Tribunal sought to carve-out distinct and limited 'disputes' over which the Tribunal could make a decision, so as to avoid issues of sovereignty falling out with the scope of Part XV of the UNCLOS and issues of delimitation excluded by the Chinese declaration under Article 298." One great job that has been done by Tzanakopoulos is to pierce the veil of the Philippines' submission by pointing out that, "The dispute between the Philippines and China is obviously over sovereignty over maritime features in the SCS, and only relatedly over maritime zones and the entitlements that the relevant features generate." Tzanakopoulos argues that questions of entitlements generated by maritime features are inextricably intertwined with issues of delimitation as well as with issues of sovereignty. Thus it is still unclear how will the Tribunal prove that none of the findings of its ruling will affect China's sovereignty over the Nansha Islands and Zhongsha Islands in their entirety.

Will the Arbitration, at the end of the day, contribute to the peace and stability of the South China Sea or only create new sources of contentions and conflicts? These are questions faced by the Arbitrator when balancing values between public conscience and self-interest, between law and politics, and between justice and peace.


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