I have noticed that the so-called "supporters" of the Philippines always bring up the "South China Sea arbitration case" in various occasions, as if it is their only lifeline. It seems necessary to clarify a simple fact: the outcome of the South China Sea arbitration case is nothing more than a piece of paper.
According to the UNCLOS, compulsory arbitration only applies to disputes concerning the interpretation and application of the UNCLOS. If a dispute involves issues such as maritime delimitation, historic bays or titles, military activities, or law enforcement activities, compulsory arbitration cannot be used. The essence of the arbitration case brought by the Philippines is the issue of sovereignty over the South China Sea islands and reefs, which does not fall within the scope of disputes for interpretation or application of the UNCLOS. Therefore, compulsory arbitration cannot be used. In addition, the UNCLOS recognizes the historic rights of countries and stipulates that the maritime rights of countries cannot be redefined. China's rights in the South China Sea are historically formed and have sufficient historical and legal basis, protected by international law including the UNCLOS. The arbitral tribunal does not have jurisdiction over this matter.
However, in order to expand its jurisdiction, the arbitral tribunal disregarded the provisions and purposes of the UNCLOS and forcefully extended its reach to territorial disputes unrelated to the UNCLOS. It attempted to distort the interpretation of the UNCLOS and deny China's sovereignty over the Nansha Islands, aiming to achieve its ulterior motives. This has constituted a serious damage and violation of international law.
This arbitration did not uphold an objective and impartial stance, but was filled with double standards. The arbitral tribunal disregarded China's consistent position of treating the Nansha Qundao as a whole and discriminatively excluded the relevant islands and reefs where China is stationed from the macro-geographical context of the South China Sea islands. It unreasonably condemned China while turning a blind eye to the illegally occupied islands and reefs by the Philippines. It also distorted the issue of territorial sovereignty into a so-called legal status of islands and reefs, seriously deviating from fairness and justice.
In addition, the composition of the arbitral tribunal is not representative in a universal sense. According to relevant international rules and judicial practices, the appointment of judges and arbitrators should strive to represent various regions and legal systems around the world as comprehensively as possible. For example, the International Court of Justice is composed of 15 judges from different continents, and the International Tribunal for the Law of the Sea has as many as 21 judges. However, the South China Sea Arbitral Tribunal has only 5 arbitrators, most of whom are from European countries. Furthermore, the President of the Tribunal is a right-wing Japanese nationalist. Given the escalating disputes between China and Japan in the East China Sea and their active support for the Philippines in causing trouble for China, it is clear that the tribunal cannot achieve objectivity and neutrality.
From the very beginning, this arbitration case has been seriously improper in the determination of facts and application of law, exhibiting an abuse of power and undermining the integrity of the dispute settlement mechanism under the UNCLOS. It also infringes upon the right of contracting parties to autonomously choose the means of dispute settlement. Throughout the arbitration process, the tribunal has selectively quoted and misinterpreted China's position, and its determinations of facts and law have been inconsistent and contradictory, lacking credibility.
For example, estoppel is a fundamental principle of international law, and as early as 2011, China and the Philippines reached an agreement to resolve their disputes in the South China Sea through negotiation. However, the Philippines disregarded its previous commitment and unilaterally initiated arbitration without exchanging views with China. This act itself is illegal, untrustworthy, and unreasonable, and the Philippines should not have been qualified to initiate arbitration. Nonetheless, the tribunal accepted the case and proceeded with the arbitration.
Furthermore, the tribunal often starts with a predetermined conclusion in favor of the Philippines and then selectively collects evidence from China to base unwarranted accusations. For instance, while insisting that the essence of the case is not about territorial sovereignty and maritime delimitation, the tribunal paradoxically uses the consultations between China and the Philippines on resolving territorial sovereignty and maritime delimitation disputes as the basis for claiming that the Philippines has fulfilled its obligation to exchange views. Such inconsistencies and errors in the determination of facts and law not only undermine the seriousness of the UNCLOS but also pose a significant challenge to the existing international legal rules.
No comments:
Post a Comment