Intl experts question proceedings of South China Sea arbitration

Updated: 2016-06-27 16:48


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THE HAGUE - A group of experts on international law voiced their doubts and concerns on Sunday over the South China Sea arbitration, warning the proceedings of the case are questionable.

Some 30 experts from Asia, Africa, the United States and Europe exchanged views at a seminar co-organized by Leiden University's Grotius Center for International Legal Studies and Wuhan University's Institute for Boundary and Ocean Studies.

Around the arbitration unilaterally initiated by the Philippines, a wide range of issues were brought up at the seminar about the appointment of arbitrators, the arbitral proceedings and the controversial jurisdiction.

Abraham Sofaer, former legal adviser of the US State Department, voiced his support for China's stance.

He said that China has made a clear declaration on exceptions that it does not accept any mandatory procedures, including arbitrations, with respect to disputes over sovereignty and delimitation of sea area, therefore the unilateral arbitration proposed by the Philippines is a particularly unwise litigation.

Also questioning the tribunal, Michael Sheng-ti Gau, a professor of International Law at the Institute for the Law of the Sea of National Taiwan Ocean University, said most of the Philippines' claims in the case could be overthrown by the notes verbally issued by the two countries from 2009 to 2011.

The court failed to see that the Philippines' self-defeating claims were in fact over sovereignty, Gau said. "The court should deal with the real issues of admissibility and jurisdiction existing in all the claims of the Philippines."

According to Sienho Yee, chief expert at the Institute of International Law of Wuhan University, there were previous international arbitration cases that involved territorial and delimitation disputes, but the court somehow ignored the rulings of those cases that could play in China's favor.

He also pointed out that two of the five appointed arbitrators reversed their previous comments in favor of China without further explanation, which violated the consistency principle, an important component in international jurisprudence (that requires people to be consistent with their prior acts and statements).

Sreenivasa Rao Pemmaraju, former chairman of the UN International Law Commission, told Xinhua that no matter what the result of the case might be, it would not help ease tensions in the disputed waters, as the ruling would only be an abstract academic exercise without true value in resolving disputes.

"It's the people who live in the region that are suffering," he added. "And I think China is doing a good job. China is a role model for many countries now in terms of discipline, in terms of direction, in terms of spending more money inside the country for infrastructure and economic development."

Additionally, the experts are concerned about the impacts of the case on international jurisprudence.

"The state consent is indispensable, imperative. So you cannot force a state to appear before an arbitral tribunal or a judicial settlement," said Abdul G. Koroma, a former judge of the International Court of Justice.

Without China's participation, the jurisdiction of the arbitration tribunal, according to Koroma, is questionable. In that case, "you cannot enter the merits of the case".

Sofaer stated that The Hague-based arbitration tribunal's rule of its own jurisdiction over the case "will broadly undermine the potential utility of international adjudication."

The experts also called on the international community to adopt a correct, comprehensive and integral interpretation of the UN Convention on the Law of the Sea, while urging relevant parties to resolve disputes through reasonable and effective dialogues.