On July 12, the Arbitral Tribunal for the South China Sea arbitration released its so-called award. In response, China soon issued statements and a white paper to reaffirm the position of non-acceptance and non-recognition of the award. Actually, China has not changed its attitude towards the arbitration since the very beginning.
China defines the arbitration as a “political farce”. When the Philippine government under Benigno Aquino III initiated the arbitration despite China’s strong opposition, China detected that the administration was aiming at utilizing “international law” as a tool to serve it own interests.
The Aquino administration deliberately chose the compulsory procedure set by the United Nations Convention on the Law of the Sea (UNCLOS). Article 287 and Annex VII of UNCLOS overturn the traditional principle of the international law that arbitration should be based on common choice. However, UNCLOS still gives priority to the peaceful means “of their own choice” for settling disputes between parties. Philippines’ initiation of arbitration willfully ignored other choices and the other party’s choice. Instead, the country stuck to a unilateral approach.
As for the procedure, the Philippines’ selection of a non-permanent arbitral tribunal undermines the authority of the arbitration. According to Article 287 of UNCLOS, four means are provided, including the International Tribunal for the Law of the Sea established in accordance with Annex VI, the International Court of Justice, an arbitral tribunal constituted in accordance with Annex VII, and a special arbitral tribunal constituted in accordance with Annex VIII.
The International Court of Justice is the principal judicial organ of the United Nations. The Court’s role is to settle, in accordance with international law, legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies. The Court is composed of 15 judges, who are elected for terms of office of nine years by the United Nations General Assembly and the Security Council. The International Tribunal for the Law of the Sea is an independent judicial body established by the United Nations Convention on the Law of the Sea to adjudicate disputes arising out of the interpretation and application of the Convention. The Tribunal is composed of 21 independent members, elected from among persons enjoying the highest reputation for fairness and integrity and of recognized competence in the field of the law of the sea.
The above two are permanent institutions, while the arbitral tribunal constituted in accordance with Annex VII is non-permanent. The advantages of the former have been approved by many professionals, including Mr. Rüdiger Wolfrum, the member of the Tribunal appointed by Philippines. In his remarks at the International Tribunal for the Law of the Sea in December 2007, he stated that compared with an arbitral tribunal constituted to deal with a specific case, the International Tribunal for the Law of the Sea, as a permanent institution, had the advantage of ensuring consistency in the development of a coherent corpus of jurisprudence. He also emphasized that “harmonization of international jurisprudence may be achieved only through permanent courts and tribunals.” Wolfrum’s opinion revealed the defects of the arbitral tribunal composed of five members.
The justice of the award is in doubt. The Tribunal claimed that it considered its jurisdiction “both with respect to the exception in Article 298 for disputes concerning sea boundary delimitation and with respect to the effect of States that are not Parties to the present proceedings”. However, it concluded that “both Mischief Reef and Second Thomas Shoal are located within 200 nautical miles of the Philippines’ coast on the island of Palawan and are located in an area that is not overlapped by the entitlements generated by any maritime feature claimed by China”, and “Mischief Reef and Second Thomas Shoal form part of the exclusive economic zone and continental shelf of the Philippines”. This is obviously related to sea boundary delimitation and even a sovereignty issue, which should not be touched upon by the Tribunal.
In addition, the Tribunal considered Taiping Island to be a “rock” and therefore to generate no exclusive economic zone or continental shelf. This conclusion is contrary to the expectation of many experts and caused more suspicion on the fairness of the Tribunal.
Therefore, it is unlikely for China to accept this “political farce” and give up sovereignty and rights. The prompt response from the Chinese government by releasing statements and a white paper indicated China’s preparation for dealing with the biased award of the arbitration and the country’s determination to defend its national interests.
At the same time, China sent out clear signals to a variety of parties concerning the South China Sea issue.
First of all, China provided an opportunity for the Philippines’ new government to get back on the right track. The white paper is titled “China Adheres to the Position of Settling Through Negotiation the Relevant Disputes Between China and the Philippines in the South China Sea”, which informs the Philippines that bilateral talks will be the only option to resolve problems, and the award of the arbitration amounts to nothing more than a piece of paper. There is no chance that the bilateral talks will be held based on this piece of paper.
Second, China’s attitude towards the arbitration stands as a warning to the other claimants. Some Western media have hyped that the arbitration would set a “successful example” and other countries like Vietnam would take into account the way to follow suit. However, China’s response is within the calculation of the other claimants. They will be cautious in making the decision if any efforts in this kind proved in vain.
Third, China is on alert to the intervention from the United States and Japan. Compared with Philippines’ reaction, these third parties seem to be more enthusiastic about the award. Both countries made great efforts in misleading the media and tried to portray China as a country that downgrades international laws. Even though China will not accept the arbitration under their pressure, the two countries’ tricks have had a negative impact on China’s national image. Meanwhile, the involvement of the two countries has increased the uncertainties of the situation in the South China Sea.
This political farce has been a test for China’s national interests. In future, China will invest more resources in capacity building, in order to deal with provocation and intervention. At the same time, the arbitration reminds China the difficulty and complexity of the South China Sea issue. China will explore more approaches to manage the disputes.
The political farce has taught Philippines and other claimants a lesson. These countries need to understand the importance of avoiding escalation of tension and the necessity of sound communication. They should also be more careful in utilizing the power of some outside forces.
The political farce has encouraged ASEAN to pay more attention to the stability of the South China Sea. It is the time that ASEAN works closely with China.
For all the related parties’ interests, such a political farce should not take place in the South China Sea.
