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S. China Sea arbitral tribunal not to solve disputes, nor should accept jurisdiction, Dutch expert

Editor: Zhang Pengfei 丨Xinhua

07-13-2016 08:06 BJT

Full coverage: The South China Sea Issue

THE HAGUE, July 12 (Xinhua) -- The award issued by the South China Sea arbitral tribunal will not resolve any disputes and the court had no authority to accept the case, a Dutch law expert told Xinhua.

"The tribunal should not have accepted jurisdiction," said Tom Zwart, professor of law at Utrecht University in the Netherlands, referring to the court's acceptance of a case involving territorial claims of which it has no authority to issue a ruling.

In January 2013, the Aquino administration in the Philippines unilaterally initiated the arbitral proceedings and asked the tribunal to decide on issues such as China's historical rights and legal status of certain maritime features in the South China Sea.

"From the outset, critics like me said that it would be very difficult to avoid sovereignty issues (when handling the Philippines' claims)," said Professor Zwart.

Under the United Nations Convention on the Law of the Sea (UNCLOS), the tribunal cannot rule on issues concerning territorial sovereignty. Through a UNCLOS declaration, China has said it won't take part in any third-party arbitration involving maritime delimitation. Dozens of other countries have taken a similar stance.

"Another reason for the tribunal not to accept jurisdiction is that the South China Sea issue is a too complicated matter for them to decide. There are so many issues involved and some of them are outside of that jurisdiction," he explained.

The tribunal ruled in October 2015 that it has jurisdiction over part of the claims submitted by the Philippines and deferred the judgment on jurisdiction over other claims until after further hearings, a decision that sparked widespread scepticism among international law experts.

"The tribunal after having decided it has jurisdiction should have taken a step back, for example by saying 'by having another look we have come to the conclusion that that is not the best way forward' or 'this is a political question which does not belong in a tribunal but should be decided through diplomacy and political discussions'," said the professor.

Professor Zwart, who has repeatedly called on the tribunal to step aside and make way for a negotiated settlement, believed that the ruling "will not solve any disputes but only fan the flames."

On the Philippines' possible reaction to this award, the professor noted that "if they are smart politicians, they will know that is not going to work because China does not agree with the ruling."

"I hope that after a day of celebration perhaps in Manila, they will come to their senses and pick up the phone to contact the leaders in Beijing and say 'we have to resolve this peacefully'."

As to the role played by Washington and Tokyo in the dispute, Professor Zwart said only states directly involved should "solve this problem peacefully and in a harmonious way."

"What I find important ... is that this very legalistic approach which now characterizes international law, perhaps even Western law in general, is not helpful to solve problems in other parts of the world, outside the West," he said.

"In Asia, states have been dealing with the South China Sea for ages in a peaceful and constructive manner," Professor Zwart said. "People should go back to the situation where they tried to find diplomatic solutions."

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