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Expert: Arbitration illegal, invalid


07-12-2016 14:22 BJT

Full coverage: The South China Sea Issue

China has reiterated time and again that it will not participate in or accept the results of the arbitration. Many legal experts and scholars have supported China's stance, saying that the arbitration is illegal and invalid, and has no jurisdiction on this matter.

One expert from China Foreign Affairs University tells us more about this unfair arbitration.

The Philippines unilaterally initiated the arbitration at The Hague in 2013.

Its 15 submissions raised in the arbitration can be categorized into three groups: challenging China's South China Sea dash line, China's claim of rights over several islands and reefs, and that China's exercise of rights on the waters harms the Philippines' interests.

But one expert says, underneath the submissions raised by the Philippines is case concerning territory and maritime delimitation. 

"First, it focused the attention on 9 ocean features actually owned by China. Not all of them are controlled by China. The Philippines controlled some of them illegally," said  Gong Yingchun, associate professor of China Foreign Affairs University.  

"But its illegal occupation of the features is not mentioned, as if this is not a problem. So primarily, it intents to deny China's sovereignty on the rocks, including low-tide elevations."

Having identified the nature of the arbitration, experts talked about whether the tribunal has jurisdiction.

The United Nations Convention on the Law of the Sea, or UNCLOS doesn't cover territorial sovereignty. Even if it involved maritime delimitation, according to Article 298, China has ruled out the settlement by compulsory arbitration.

Gong also said, "So far, out of the five permanent members of UN Security Council, four have similar rule-out. The last one, the US, it's not in the convention. The rule-out itself tells of the international community's stance on dispute resolutions."

"On the third party intervention on dispute resolution process, this was quite controversial at the sea convention conference. That's why there are so many limitations on it."

And on the tribunal itself, experts say it has strong political and temporary features. Unlike other maritime courts, which have 21 judges from countries and regions all over the world, the temporary tribunal only has five people.

The presiding arbitrator, Shunji Yanai, once suggested to Japanese Prime Minister Abe to lift the ban on collective self-defense. And he was the one who appointed the other four members.

"It's easy for manipulation to take place, from the beginning of the case, to the appointment of member arbitrators. The rules of this case is made up by the case itself, other maritime tribunal or courts all follow fixed rules. It's such an important matter, yet it's put into hands of only 5 people," said Gong.

Gong Yingchun also said the tribunal violated the UNCLOS regulation on starting compulsory arbitration process. It's an act exceeds the authority, and the act itself harms the convention.

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