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Arbitration: More questions than answers


07-18-2016 00:28 BJT

Full coverage: The South China Sea Issue

On July 12th, an arbitral tribunal in The Hague made an award in the South China Sea territorial dispute case filed by the Philippines. The tribunal itself and its subsequent award, have many points which have raised more questions than answers.

Vice Minister of China's Foreign Ministry, Liu Zhenmin, says the five arbitrators making up the temporary tribunal have actually made money from the South China Sea case. As China refused to participate in proceedings, the Philippines had to foot the bill for the case. According to estimates, the tribunal cost around 26 million Euros over the past three years. The initial cost at the outset of the tribunal was 500 thousand Euros with each of the arbitrators earning a fee of 4,800 Euros daily. The Philippines allegedly paid an additional 850 thousand Euros to the tribunal in April.

International jurisdiction organs all adhere to strict formation processes which included the composition of the arbitration committee. The International Court of Justice has 15 judges from different continents, elected by the General Assembly of the United Nations and its Security Council. The International Tribunal for the Law of the Sea has up to 21 judges. But four of the five arbitrators on the temporary arbitral tribunal were appointed by the then president of the International Tribunal for the Law of the Sea, Shunji Yanao. This process has called into question the fairness of the tribunal.

Meanwhile, some of the arbitrators have changed and refuted their own arguments throughout the arbitration process. Dutch arbitrator Alfred Soons insisted that defining the lawful status of islands and reefs is an inseparable element of maritime demarcation. But since becoming an arbitrator of the tribunal, he has said there is no relation between the two, apparently trying to avoid the exclusion statement of maritime delimitation from China. Also one expert witness invited by the Philippines used to call Taiping an island, but during the case changed this opinion, saying it is a reef.

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