Tribunal has no jurisdiction, academic says

A professor at Oxford University believes body at The Hague cannot rule over sovereignty issues

An arbitration tribunal would be wrong to decide in the Philippines' favor over claims it has brought unilaterally against China regarding territory in the South China Sea, according to a professor at Oxford University.

Manila has packaged its case to persuade the arbitrators that it lies within the tribunal's jurisdiction, when it does not have this right, according to Antonios Tzanakopoulos, associate professor of public international law at the British university.

He told China Daily in an exclusive interview that there is little doubt the claims made by the Philippines and the dispute are over sovereignty, a matter over which the tribunal does not have jurisdiction.

Tzanakopoulos says he thinks the tribunal would be wrong to decide that it has jurisdiction over most of the claims made by the Philippines. His views, originally outlined in an article on the Social Science Research Network, have attracted wide attention.

"The dispute between the Philippines and China is obviously about sovereignty over maritime features in the South China Sea. Essentially, the Philippines' submissions challenge in one way or another the validity of the nine-dash-lines under the UN Convention on the Law of the Sea," Tzanakopoulos says.

He was referring to a term used by China to define its area of sovereignty and relevant rights and interests in the South China Sea.

Tzanakopoulos says the claims made by the Philippines appear to be asking the tribunal to define the nature of certain maritime features, a matter over which it does not have jurisdiction.

The claims are packaged in such a way to give the tribunal an excuse to exercise jurisdiction over them, he says.

China has said it does not recognize the tribunal's "competence" in the sovereignty issue and will not accept its ruling.

"Instead of asking who owns these features, the Philippines has asked what the nature of these features is," Tzanakopoulos says.

"Is a particular feature an island, an islet, a low-tide elevation or a rock? But, in fact, definitions relating to these maritime features have significant implications for sovereignty issues."

This is because each of these features may generate different zones of influence around them.

"The whole debate is about who has control and sovereignty over these maritime features, and thus the zones around these features that would give exclusive control over the seabed, subsoil and water column."

The designation of a landmass determines precisely how the surrounding water can be used and who can use it.

For example, an island is granted a territorial sea area of 12 nautical miles (22.2 kilometers) and a continental shelf of 200 nautical miles, and these can be used to claim an exclusive economic zone of 200 nautical miles. These factors have implications regarding access to natural resources in the water and on the seabed, Tzanakopoulos says.

In contrast, a rock is granted a territorial sea area of 12 nautical miles, but no exclusive economic zone. A low-tide elevation is not granted a territorial sea area, but it may be used as a base point in claiming territorial waters if it is within 12 nautical miles of land.

"Any determination by the tribunal that a particular maritime feature is a low-tide elevation, for example, would preclude any claim to sovereignty over that feature, as it is incapable of appropriation," Tzanakopoulos says.

cecily.liu@chinadaily.com.cn

(China Daily Africa Weekly 07/08/2016 page8)