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Arbitration and award questionable


07-17-2016 09:34 BJT

Full coverage: The South China Sea Issue

An award was made earlier this month over the South China Sea territorial dispute by The Hague-based arbitral tribunal consisting of five arbitrators. The arbitration which was brought by the Philippines and its subsequent award, have raised more questions than answers

On July 12th, an arbitration award was sent via email, which appeared to be from the Hague-based Permanent Court of Arbitration. It led many to believe that this court had overseen the South China Sea case. However, the real sender was a temporary arbitral tribunal, which asked the PCA to provide them with secretarial services. As a temporary group, the arbitral tribunal has no unified working location, secretaries, emails or official letterhead. Thus it has had to pay a significant amount in service charges to the PCA since July 2013 to provide related services. They include the search and nomination of experts, circulation of news and press release, organization of hearings in The Hague and payment to arbitrators and other staff. This made the temporary arbitral tribunal look like it was a part of the PCA.

Many organizations have drawn a clear line with the arbitral tribunal after it issued its award. A spokesperson for the Secretary-General of the United Nations said the arbitral tribunal's operations were not linked in any way with the UN. The UN's International Court of Justice also reiterated that the ICJ was never involved with the arbitration. It refutes some media reports that the award was supported or made by UN courts. The International Tribunal for the Law of the Sea was established in 1994 under the UN Convention on the Law of the Sea. A spokesperson for the organization said the arbitral tribunal doesn't belong to it and won't comment further on any award released by other organizations.

From the beginning, China hasn't recognized or participated in the arbitration case. All five arbitrators were appointed by the then president of the International Tribunal for the Law of the Sea, under UNCLOS. However, the president in question was Shunji Yanai, a controversial figure because of his close relationship with Japan's prime minister, Shinzo Abe, and his aggressive stance as an international court judge of the East China Sea. To an extent the fairness of the court's operations was called into question by the personal wishes of Shunji Yanai.
According to some international law experts, the award was also full of inaccuracies. It was made based on incomplete evidence and also deliberately avoided or confused the definition and right of attribution of the islands and reefs in the South China Sea, in an attempt to deny China's lawful sovereignty in the region.

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