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Interview: UN Tribunal should think twice on South China Sea issue
2016/05/26

The South China Sea issue, which is currently pending before an arbitral tribunal under theUnited Nations Convention of the Law of the Sea (UNCLOS), is unsuitable for adjudication and the tribunal should think twice before issuing a ruling which might enjoy little support, said Tom Zwart, professor of law at the Netherlands' Utrecht University.

Zwart told Xinhua that certain types of conflict cannot be solved by courts and tribunals, because "there are too many parties involved and too many interests at stake."

"Even if China would be willing to take part, I would still advise not using arbitration in this case," he said in a phone interview with Xinhua on Tuesday.

He said that the approach of the tribunal, which deals with the case featuring one polarized party against another, is alien to East Asia's culture of harmony, which relies on the willingness to reconcile conflicts and differences.

"Consequently, in the region the award will be widely regarded as the fruit of a poisonous tree, and it will fail, therefore, to garner the necessary support," warned the professor in post published Sunday on his university's Culture and Human Rights blog and coauthored with Ruikun Sun, fellow at the Netherlands School of Human Rights Research.

Zwart admitted that the law is a means to solving conflicts and sometimes a tribunal is needed to assist in upholding the law. "But when law or tribunals become barriers to solving problems, or even make matters worse, you should not use them."

"When you want to bring people together, you should offer tea instead of a sword," added the professor during the interview.

Given the geopolitical importance of the South China Sea, the professor advocated that the issue should be decided at the political level and not by a judicial tribunal.

In their post, the professor and Sun also pointed out that "it is an illusion to think that a legal award in a matter of high politics is going to gain any traction when one of the parties, which also happens to be a permanent member of the Security Council, refuses to take part in the proceedings".

In the west, there is an idea that something can only be regarded as law if it emanates from an international court. It overlooks the fact that these international bodies owe their existence to treaties, which are concluded by states, also main actors in the international law, read the post.

The Philippines unilaterally initiated an arbitration case against China over the maritime disputes under the UNCLOS in January 2013.

However, China has reiterated that it has legitimate rights under international law to reject the arbitration, as the tribunal has no jurisdiction over the territorial claims to several islands, rocks, shoals and other land features across the South China Sea.

"Tribunals and their decisions require legitimacy for their compliance," said Zwart, adding that if one or several of the affected states do not believe in this legitimacy, there is little chance that any ruling will be implemented. (From Xinhua News Agency)

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