By Wang Wen and Chen Xiaochen     Source: The Straits Times

Published: 2016-7-14

On July 12, a temporarily established Arbitral Tribunal located in The Hague, sharing office service with the Permanent Court of Arbitration but not a part of that, released a unanimous award over the South China Sea Arbitration.

The award was in favour of almost all the Philippines` claims. However, no matter how sophisticated the 500-page award may appear, it comes from an arbitration that is flawed in procedure, and is not in accordance with its jurisdiction. In short, with the arbitration`s lack of legitimacy and jurisdiction, the award is not legal, and thus not binding.

While the award categorically denied China`s historic rights in its nine-dash-line map, in fact it does not even have authority and jurisdiction over territorial disputes, as stated in the United Nations Convention on the Law of the Sea (Unclos).

Then there is the fact that the arbitration case was unilaterally initiated by the Philippines without any diplomatic consultation with China.

This is inconsistent with the Philippines` own commitment, in the Declaration on the Conduct of Parties in South China Sea, to resolve the dispute through consultations and negotiations. According to the Equitable Estoppel, its words should be its bond. That is why we see the unilateral arbitration as an act of bad faith of the Aquino government of the Philippines.

Thus, the lawfulness of the arbitration itself is doubtful from the very beginning.

Fundamentally, therefore, we cannot expect any objective judgment to emerge from the tribunal. It simply does not accord with procedural justice.

Merits of the case When it comes to the actual merits of the case and the subject matter of the arbitration, the tribunal`s ruling cannot be justified as well.

The essence of the subject matter of the arbitration is the territorial disputes over the maritime features in the South China Sea.

Territorial disputes are beyond the scope of the Unclos and does not concern the interpretation or application of the Convention. As far as the present arbitration is concerned, without first having determined China`s territorial sovereignty over the maritime features in the South China Sea, the tribunal will not be in a position to determine the extent to which China may claim maritime rights in the South China Sea pursuant to the Convention, not to mention whether China`s claims exceed the extent allowed under the Convention. In essence, the sovereignty issue falls beyond the purview of the Convention.

That is why it is so surprising to many observers, even to those who are inclined to the Philippine side, that the tribunal boldly claimed jurisdiction and then directly denied China`s historic rights in the "nine-dash line".

That China has historic rights over the areas within the nine-dotted line has been the subject of much historical and academic writings, so we will not go into them here.

What we want to emphasise here is that, without clear jurisdiction, the tribunal simply has no rights to even arbitrate the case, let alone fundamentally deny China`s rights.

Second, the Philippines, by requesting the tribunal to determine the maritime features "occupied or controlled by China", has in effect dissected the Nansha Islands as a whole. It deliberately makes no mention of the rest of the Nansha Islands, including those illegally captured or claimed by the Philippines.

Its real intention is to gainsay China`s sovereignty over the whole of the Nansha Islands, to deny the fact of its own illegal seizure of or claim on several maritime features of the Nansha Islands, and to distort the nature and scope of the China- Philippines disputes in the South China Sea.

It sounds even more ridiculous for the award to claim that the largest island in the Nansha Islands, Taiping Dao (Taiping Island), currently controlled by the Taiwan authorities of China, is not an island. In fact, this section has triggered more ridicule than anger among scholars.

Third, the tribunal also alleges that China`s claim to and exercises of maritime rights in the South China Sea have unlawfully interfered with the sovereign rights, jurisdiction and rights and freedom of navigation which the Philippines is entitled to enjoy and exercise under the Convention.

The premise for this claim must be that the spatial extent of the Philippines` maritime jurisdiction is defined and undisputed, and that China`s actions have encroached upon such defined areas. The fact is, however, to the contrary.

China and the Philippines have not delimited the maritime space between them. Until and unless the sovereignty over the relevant maritime features is ascertained and maritime delimitation completed, this category of claims of the Philippines cannot be decided upon.

To decide upon any of the Philippines` claims, the tribunal would inevitably have to determine, directly or indirectly, sovereignty over the maritime features, which is beyond its legitimacy and jurisdiction. That is why China does not participate in the arbitration, nor accept, recognise or implement the award.

But it does not mean China refuses to talk. In fact, China has always been committed to settling disputes over territorial sovereignty and maritime rights through consultation and negotiation between the sovereign states directly concerned.

Regardless of the award and the arbitration, China will continue to work closely with Asean countries, including the Philippines, to safeguard the peace and stability and uphold the freedom of navigation in the South China Sea, so as to eventually turn it into a "sea of peace, friendship and cooperation".

Wang Wen is the Executive Dean of Chongyang Institute for Financial Studies, Renmin University of China; Chen Xiaochen is a researcher at the institute. Chang Yudi, intern researcher at the institute, also contributed to the article.