Legal experts question arbitration in forum

Ruling meets strong opposition from both China and abroad

Editor's note: The Public International Law Colloquium on Maritime Dispute Settlement, held in Hong Kong on Friday and Saturday, attracted more than 200 legal experts from a number of countries, including China, the United States, Australia and France. The two-day event was jointly organized by the Hong Kong International Arbitration Centre and the Chinese Society of International Law. A special panel on the South China Sea arbitration was held on the afternoon of July 16 before the forum concluded.

World-renowned legal experts continued to criticize the South China Sea arbitration ruling, calling it a "dangerous", "one-sided" and "politically-motivated" decision in a major international forum held in Hong Kong on July 15-16.

On July 12, the arbitral tribunal appointed by the Permanent Court of Arbitration in The Hague ruled in favor of the Philippines in an arbitration case the country unilaterally filed against China. Its ruling absurdly denied China's historic rights over the South China Sea, and it met with strong opposition from both China and many members of the international community.

Myron Nordquist, a professor at the University of Virginia, said a lot of things were wrong about the ruling over the South China Sea dispute, particularly the fundamentally flawed system to begin with.

"It is a bad decision politically and this is a political decision," Nordquist said. "It is a matter of whether Article 298 (which grants a nation the right to declare issues where it will not accept compulsory arbitration) was honored."

Nordquist also said the decision to declare all geographic features within the South China Sea as rocks or low-tide elevations "is not going to be well-received".

In particular, the tribunal ruled that Taiping Island was a rock, instead of an island. This, many believed, would pose a severe challenge to geopolitics and academic conscience.

"Taiping Island is internationally recognized by the academic world as an island," said Michael Sheng-ti Gau, a professor at the National Taiwan Ocean University.

"The Philippines carefully made their case around the delimitation by separating the issues into several portions. However, despite the efforts by the Philippines, it is still, in fact, undeniably, a delimitation issue when the Philippines petitioned to the tribunal over China's right to the South China Sea," said Gau.

But even after this arbitration is over, China may still rely on its inherent right of self-defense to keep Philippine vessels out of the disputed waters, Gau said, adding that allowing hostile Philippines vessels to approach is not an option as China regards it as a serious matter of maintaining territorial integrity.

Gau's remarks, in fact, shed light on some inevitable questions in the wake of the July 12 ruling: How to deal with the aftermath of the ruling and how is the ruling going to impact on the international legal system and international relations?

Pemmaraju Sreenivasa Rao, a former chairman of the International Law Commission, said, as a pragmatic matter, the Philippines at the end of the day would have to return to the negotiating table to settle its dispute with China and achieve a mutually acceptable solution.

Xue Hanqin, a judge of the International Court of Justice, said the ultimate objective for arbitration mechanism is to settle disputes rather than to escalate them.

"However, anyone can easily tell this award will certainly aggravate the dispute between China and the Philippines, aggravate the current military tension between China and the United States and definitely aggravate tension in the region," she said, warning an arbitral tribunal should not have played "such a dangerous game".

Sharing similar concerns, Tung Chee-hwa, vice-chairman of the National Committee of the Chinese People's Political Consultative Conference, said protecting China-US relations must be the first priority for all of us.

"Unfortunately, because of what is happening in the South China Sea, there is reason to be concerned about the current state of this relationship. It is time for us to rethink and re-evaluate, with urgency, what are the real differences that divide us in the South China Sea," Tung said as he delivered a keynote address to open the forum in Hong Kong on Friday.

Xinhua contributed to the story.

Contact the writer at jasmine@chinadailyhk.com

(China Daily 07/18/2016 page10)