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South China Sea FAQ16: What is compulsory arbitration


07-06-2016 13:42 BJT

Full coverage: The South China Sea Issue

On today's episode of our special series on the South China Sea, Hou Na explores whether the arbitral tribunal is authoritative and impartial. She also asks what is compulsory arbitration?

On January 22, 2013, the Philippines unilaterally filed for compulsory arbitration against China at the Permanent Court of Arbitration in The Hague. The case paperwork refers to "maritime jurisdiction" in the South China Sea.

Now, the question is—Is the arbitral tribunal authoritative and impartial?

And, wat is compulsory arbitration?

Compulsory arbitration is the final and most extreme form of dispute resolution for an aggrieved UNCLOS party. But the other party has the right to opt out.

This right is explicitly stated in Article 298. This can be over the interpretation or application of certain provisions "relating to sea boundary delimitations, or those involving historic bays or titles." (Article 298, 1 (a)(i))

Both China and the Philippines referenced the compulsory arbitration opt-out provisions of Article 298 when they signed on to UNCLOS.

Still, the Philippines initiated arbitration to gain leverage in the territorial dispute. China is acting within its rights to reject the jurisdiction of the Arbitral Tribunal. The tribunal has acted like many transnational bureaucracies do, in seeking to expand its authority over sovereign states.

Compulsory arbitration can only be applied when the interpretation and application of the Convention is concerned. But UNCLOS doesn't cover territorial sovereignty. The Philippines has chosen the wrong venue, and the Arbitral Tribunal is overstepping its authority.

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