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Ambassador WU Ken's article on NRC, Saturday, 16 July--The farce of ultra vires Arbitration ended, when will be the drama of negotiation?
2016/07/16

The Arbitral Tribunal in the Philippines' South China Sea Arbitration delivered its final award on 12 July. Living in "the capital of international law", we must keep a clear head in harms of the ultra vires arbitration and in the appropriate means of peaceful resolution of disputes in the South China Sea.

China has indisputable sovereignty over Islands in the South China Sea and the adjacent waters. In 1970's, the Philippines illegally invaded some islands and reefs of China's Nansha Islands, thus raised the Sino-Philippine territorial sovereignty dispute, which is the essence of the bilateral disputes. With the negotiation of the United Nations Convention on the Law of the Sea, the Philippines puts forward the claims of exclusive economic zone and continental shelf in the South China Sea which overlap with the maritime zone that China claims, thus delimitation dispute emerged. Territorial sovereignty issues are not subject matters of the Convention. As for delimitation dispute, China has already, in accordance with the Convention, made a declaration in 2006, excluding compulsory procedures. Therefore, disputes in the South China Sea should be peacefully resolved through negotiation and consultation instead of appealing to compulsory procedures like arbitration. This is based on the explicit provisions of the Convention and becomes the agreement and consensus among China, the Philippines and other ASEAN nations.

In 2013, the Philippines unilaterally initiated the South China Sea Arbitration and raised 15 submissions on matters including the maritime entitlements of certain islands and reefs in the South China Sea. It alleged that these submissions have nothing to do with territorial sovereignty and delimitation dispute. But what is the truth? In accordance with the international law, entitlements of maritime features belong to the coastal States. In the context of Sino-Philippine territorial sovereignty dispute over islands and reefs, the matter of maritime rights can not be addressed. According to established jurisprudence, determination of maritime entitlements is the first step of any delimitation. Hence, the issue of maritime entitlements of island and reef is not only subsequent to the Sino-Philippine territorial sovereignty dispute, but also an inseparable part of bilateral delimitation. A careful analysis will tell that the Philippines' 15 submissions are closely connected with disputes of territorial sovereignty and delimitation and thus are not subject to the jurisdiction of arbitration.

What is even more important, the Convention has explicitly stated that, when a party to dispute has made declaration to exclude compulsory procedures, relevant dispute may be submitted to such procedures only by the agreement of the parties. Since China has already made such a declaration, the Philippines has no right to unilaterally initiate the arbitration and its abuse of legal process is blatant. In addition, the Convention has also made it clear that the application of compulsory procedure is subject to optional exceptions declaration. With China's declaration, compulsory procedures can not be applied and both the constitution, operation of the arbitral tribunal and binding force of its decisions have no legal basis. With no basis for constitution, the so-called "Arbitral Tribunal" further eschewed the provisions of the Convention and establishes jurisprudence and rushed to the conclusions that the Philippines' submissions have no bearing on territorial and delimitation disputes. The Tribunal thus forcibly establishes jurisdiction beyond its power.

The South China Sea Arbitration started with the Philippines' abuse of rights, developed with the Tribunal's ultra vires and will finally ended with nothing to come. The Convention provides that parties to the dispute shall comply with any decision made by a court or tribunal having jurisdiction. But since the Arbitral Tribunal is established and exercises jurisdiction in an ultra vires way, its decisions do not meet the condition of being complied. Furthermore, the Convention specifies that a decision shall have no binding force except in respect of "particular dispute". Since the Philippines and the Arbitral Tribunal have reiterated time and again that the arbitration has nothing to do with territorial sovereignty and delimitation, the decision of the Tribunal obviously cannot implicate territory and delimitation matters, and cannot be applied to disputes of territory and delimitation.

Arbitration is just like medicine. A moderate dose benefits health while overdose backfires. The United Nations Convention on the Law of the Sea strikes balance over various means of dispute settlement. Although procedures like arbitration are mandatory to some extent, their application has a series of limitations and exceptions and shall accord with a range of prerequisites. The South China Sea Arbitration reflects a dangerous tendency that some arbitral bodies in the area of the law of the sea expand their jurisdiction, diminish the right of States to choose means of resolving disputes and belittle the role of negotiation. Such tendency breaches procedural justice, undermines the inherit balance of the Convention, can not help resolve the disputes, but is only counterproductive. That's why all contracting states to the Convention shall be highly alert to it.

In the field of the law of the sea, negotiation remains the first choice in settling disputes. Take European countries for example, only 5 of dozens of delimited maritime boundaries are settled through international judicial and arbitral means, while most of the rest are settled through negotiation and consultation. Negotiation can best reflect the will and equality of sovereign State, thus possesses distinctive advantage in resolving complex and sensitive boundary and maritime disputes. The States involved have the best knowledge not only of the history and facts related to the disputes, but also of their mutual interests and concerns, so they are in the best position to work out a solution that satisfies the needs of all States. Therefore the negotiation output can be easily accepted by the peoples of the States involved and merits the best vitality.

The key of resolving disputes in the South China Sea is in the hands of directly concerned states. After decades' of negotiation and consultation, China has successfully resolved land boundary disputes with twelve out of its fourteen neighbors, delimiting some 2,0000 kilometers of land boundary. In the South China Sea, China and Vietnam concluded an agreement on the maritime boundary in Beibu Bay. China, Vietnam and the Philippines have once concluded an agreement for joint marine seismic undertaking in agreed area. China and ASEAN have signed the Declaration on the Conduct of Parties in the South China Sea (DOC) that promises to manage maritime disputes and strengthen maritime cooperation. Now, Code of Conduct on the South China Sea is being formulated. Though the territorial sovereignty and delimitation disputes in the South China Sea are extremely complex, China has the confidence and competence to work with relevant maritime neighbors, in accordance with the United Nations Charter, United Nations Convention on the Law of the Sea and related international law, to control the disputes through mechanisms, to mitigate the disputes through maritime cooperation, and to reach final solution of the disputes through peaceful negotiation and consultation.

Instead of yielding any legal or practical results, the farce of ultra vires arbitration only wastes time and manpower and damages political mutual trust. The ultra vires arbitration will not shake China's determination and will to safeguard its national interests and the dignity of international law. Nor will it affect China's sincerity in peacefully resolving disputes through direct negotiations. We urge that countries concerned can change their mind and get back on the right track so that the drama of negotiation and consultation can resume and open new chapters.

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