By Chen Weihua (China Daily)
Editor's Note: Myron Nordquist is the associate director and editor of the Center for Oceans Law and Policy at the University of Virginia. He is also a senior fellow at the Center for National Security Law at the University of Virginia School of Law. He spent more than 30 years on maritime law studies, including being editor-in-chief of a seven-volume commentary on the United Nations Convention on the Law of the Sea. Chen Weihua, deputy editor of China Daily USA talked with Nordquist in a telephone interview regarding the South China Sea arbitration case initiated by the Philippines. The following are excerpts from the interview.
Does the tribunal have the legal right to arbitrate on the case?
The tribunal has the right to arbitrate. But the real question is: Should the case even be there at all? I can say with some authority that the big item on dispute was there were those who want to subject everything to dispute settlement. And there were those very skeptical about anything. Russia is very skeptical about this dispute settlement system. And the United States wasn't even a party. And under Article 298, a state can opt out if it does not want a settlement on sovereignty, China did opt out. But the Philippines sued them anyway. And there were these five Europeans, who want to get their hands on this, they were eager to pass on their judgment on the case.
So China had put out a position paper in December, 2014, saying, "We unmistakably did not want this arbitration. We opposed to it. We are not going to honor it. We are not going to participate".
The court turned on its head, and said, "Ah, the position paper is going to be a plea" because they have the authority to decide each case whether they have jurisdiction or not. And so they took what was an all-right "we don't want to play this game" decision by China in writing and they said, this will be a plea. So they then constitute the tribunal to look at whether they have jurisdiction or not. They treated not a plea as a plea. So China really got sandbagged.
Of course, the Philippines got this: Americans were cheerleading. All the world thought China was being really bad because they refuse to honor this arbitration. They (China) boycott it.
There were more reasons than just that, though.
What was the purpose of the position of the Philippines? They spent several million dollars on this high-priced lawyers, trying to embarrass China. But I don't think the top bracket of the Philippines government really knew what the endgame was, because all they have done now is create bad will with China. They think somehow they are going to stop China from building this low-tide elevation stuff. But they are not. China is not going to abide by.
United States doesn't even recognize the tribunal. So you got three out of the five permanent UN Security Council members (like this). So what is the endgame? What would they expect to accomplish? Who would enforce it?
Everyone in the Western press believes China is really being the bad guy, and they are only getting half of the story.
Also, you heard China is building airstrips. But every airstrip is dual use. It can be used for military purpose, or for search and rescue and disaster relief purpose. Anyway, there is only one side of the story because the Chinese have said, "Hey, we aren't going to be in this game. We opted out to be in this kind of game involving either maritime delimitation or sovereignty."
China never said, but they should say this: Nine Dash Line, among other things, indicate a broad sea area which there are features that are subject to the historic title claims. And if they say that, they are automatically opted out of any compulsory jurisdiction. Why they don't say that? I don't know.
You should not say historic rights or reasons, the magic word in the (UN) Convention is historic title. Title implies ownership, possession and sovereignty. There is no place in the Convention you could find historic rights. There are only two places where you will find historic titles. It means you own it.
The Chinese could kill this thing right now, in my opinion if they say, "All the Nine Dash Line is in general not a boundary, it's a general indication, among other things, there are maritime features we have historic title claims."
I mean, Taiping (the only island occupied and inhabited by Taiwan people), is a historic title claim.
The real danger in this is the Vietnamese. The Vietnamese are just psycho about this. Vietnam is watching this thing like a hawk. They are waiting for a decision and sue China too.
So it's very bad for the tribunal. They have two permanent members of the Security Council that are unhappy with the court. It's very bad they stir up China and Vietnam get into a fight. People talk about China and the US getting into a fight, but they are not going to. Neither of them want that, a fight.
Is it true that the ruling is not going to be in China's favor?
They have already shown the prejudice. They have already shown so much prejudice. China said: they (the Philippines) are doing this because they want to get an advantage on maritime delimitation. If that's true, the Chinese have already opted out. You can't have them subject to compulsory jurisdiction if the problem is the maritime delimitation or if it is sovereignty.
But they (China) sound like a tough guy, they don't engender a lot of sympathy.
Does it make sense to you to say that Xisha and Nansha belong to China since ancient times?
It does if you don't take it literally. That is to say if the Nine Dash Line is an indication of sphere of influence. What happened is that journalists think they (China) claim it's internal waters or something. They (China) never said that. China doesn't want that to be internal waters.
Some Chinese think the US is behind the Philippines trying to stir up the situation?
I think they are. They want to get back to those military bases. You know they got kicked out of quite a few of those places.
Now the Filipinos are having such fun of making faces at China, hiding behind the US military, thinking they are really doing something wonderful. I think they are all wrong. My view is that you got to have fair decisions. If you really obey the rule of the law, you never would have said that it didn't involve the sovereignty of island or maritime delimitation and historic title. If any of those three exists, and sure all three exist, then China should never be there in that arbitration.
They (China) have not done an effective job. There are lots of arguments that can be made pro-Chinese. Here in this country (US) they think you are a traitor if you are pro-Chinese. There are something bigger than being a traitor, that is being truthful. I am not afraid what they are going to do to me.
China said the tribunal is not legal?
But it engages in this sleight of hand tricks, such as what I described in respect to jurisdiction.
I think it's a good strategy for the Chinese not to participate from the beginning. But what I don't agree with is whereafter they (China) have not done a good job of explaining their position. It takes some hard work to get it. I don't think they have won the public relations fight, at least here, maybe at home, I don't know.
But things involving sovereignty is not going to be solved quickly. Have mechanism for search and rescue, fighting piracy, there is lots of ways to cooperate.
US officials such as Assistant Secretary Danny Russel always said this tribunal ruling is going to be binding?
It does not mean anything. Anytime they say that, ask them the question, who is going to enforce it.
In my view, it's an abuse of the process, where these five Europeans (judges) are passing judgment Chinese opted out of. By the way, if the US ever became a party of this agreement, we would have opted out as the Chinese did.
I think China's position is legal because they opted out of this stuff.
It is blatantly stupid politically (on the part of the jury) ... They should not use China's position paper as a plea.
I think the rulings going to be bad for China. It's not going to end the problem. It's going to exacerbate it. That's what I think.
I am just not happy. I don't think China is getting a fair shake. I think part of the reason is that people that are being paid by a lot of money by the Filipinos are taking advantage of the ignorance of people about this very complicated area. I am not someone in the pocket of China or the US, but some who have opinion about this.