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Exclusive interview: Limitation of UNCLOS Dispute Settlement System

Reporter: Zhang He 丨 CCTV.com

06-28-2016 15:02 BJT

Full coverage: South China Sea Is Indisputable Part of China

A legal expert at the University of Oxford has published a paper on resolving disputes in the South China Sea. It relates to the arbitration unilaterally initiated by the Philippines against China. With Antonios Tzanakopoulos, Associate Professor of Public International Law, to discuss his paper...

The UN Convention on the Law of the Sea provides a compulsory and binding framework for the peaceful settlement of disputes. If the parties have a dispute with respect of the interpretation or application of the Convention, the compulsory dispute settlement is triggered…

However, not every maritime dispute can be resolved this way. Professor Tzanakopoulos says the dispute between Philippines and China is one of these instances.

"Could you tell me in the article, what are the limitations of the compulsory dispute settlement under the Convention?" said Zhang He Oxford.

"It is three hurdles. First of all, this is the dispute under the UN convention on Law of the Sea. Second, have the parties agreed to resort it to other way. And third, is this dispute excluded from the dispute settlement system under the Convention. None of the three hurdles do I find the answer to the tribunal fully convincing," said Antonios Tzanakopoulos Associate Professor of Public International Law, University of Oxford.

According to the paper, the dispute between the Philippines and China is clearly over sovereignty over maritime features in the South China Sea, which do not fall within the scope of the Convention.

"The first major issue is that the dispute is not necessarily a dispute under the UN Convention on the Law of the sea. Though it has been presented as such. The way the Philippines presented to the tribunal is very smart. They said we don’t want you to tell us who owns the particular features, we just want to know what are the particular features are. But, of course, that is an artificial separation of the real issue. The real issue in the dispute is that who owns the particular feature. So who get the benefit of what zone the feature generate. Not a particular feature in itself has a particular nature to generate zones or not. So it is a very smart move to avoid the problem that the Philippines knew that they would face. China’s agreement to resolve the dispute under the UN convention of the Law of the Sea is limited to dispute under the UN Convention of the Law of the Sea. And a sovereignty dispute is not a dispute under the Convention under the Law of the Sea. Sovereignty dispute is under the Customary International Law, for which you need different arrangement," said Antonios Tzanakopoulos Associate Professor of Public International Law, University of Oxford.

China and the Philippines have reached agreement to settle their disputes in the South China Sea through‘friendly consultations’ and negotiation. This would have the effect of depriving the Tribunal of jurisdiction over this dispute.

"The first hurdle is to show that the two states who participate in the dispute have not decided to solve the dispute in another way. Now China, even though, it did not appear before the Tribunal, it has made the case that they have agreed with the Philippines as well as other states to resolve the dispute with respect to the South China Sea by negotiation. And in fact there are a number of documents that are presented to the Tribunal which tribunal considered that seems to point to that direction. But the way Tribunal dealt with them in my view is slightly unsatisfactory," said Antonios Tzanakopoulos Associate Professor of Public International Law, University of Oxford.

As for the issue of South China Sea, it is difficult to see how questions of entitlements generated by maritime features are not intertwined with issues of delimitation, which is crucial to the jurisdiction of the Tribunal.

"The dispute system of the Convention allows states to exclude certain matters from the dispute settlement, and China has exercise its right, exclude all the matter it can exclude under the Convention from the jurisdiction of the arbitrary tribunal or any tribunal under the Convention. and this includes delimitation. My view is any of the claim of the Philippines will necessarily result in bring the question of delimitation for the court," said Antonios Tzanakopoulos Associate Professor of Public International Law, University of Oxford.

“The South China Sea issue has becoming increasingly complicated and serious. And from this discussion we can see the limitation of this compulsory dispute settlement system under the convention, in regarding to resolving the issue of South China Sea," said  Zhang He Oxford.

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