|Disregarding Facts and Jurisprudence, the Arbitration Is Neither Fair Nor Just|
Op-ed IV on the Philippines' South China Sea Arbitration Farce
The Philippines' South China Sea arbitration is a political provocation under the cloak of law. In the end of October, in disregard of basic facts and fundamental jurisprudence, the Arbitral Tribunal set up at the unilateral request of the Philippines rendered the award on jurisdiction and admissibility of the arbitration. Confounding black and white, the Tribunal spared no effort to back up the Philippines' arguments, thus rendering support and encouragement to the Philippines' illegal occupation of China's territory and encroachment upon China's maritime rights and interests. Fraught with far-fetched and unfounded assumptions, the reasoning process of the Tribunal was by no means based on facts, common sense or justice, and its positions were neither fair nor impartial.
What has truly happened cannot be covered up by an arbitration that ignores facts. The Tribunal deliberately framed the previous consultations between China and the Philippines concerning disputes over territorial sovereignty and maritime delimitation as consultations on the interpretation and application of the United Nations Convention on the Law of the Sea (UNCLOS), and affirmed these consultations as evidence that the Philippines had fulfilled its obligation of exchange of views. As a matter of fact, China and the Philippines have never had any negotiations, not even exchange of views, on the arbitration matters.
There is no trace of justice in an arbitration that violates jurisprudence. For example, the Tribunal knows full well that it has no jurisdiction over a case concerning territorial sovereignty and maritime delimitation. On the one hand, it evaded the essence of the dispute and insisted that this case had nothing to do with territorial sovereignty. On the other hand, in disregard of China’s declaration in accordance with UNCLOS in 2006 which excludes disputes concerning maritime delimitation from arbitral proceedings, the Tribunal deliberately included into its jurisdiction matters that, in essence, concern territorial sovereignty and maritime delimitation. Such moves to arrogate power are a violation of the spirit of diligence and self-discipline which judicial bodies should honor when hearing cases. They are also detrimental to the credibility and value of dispute settlement through judicial means.
Another example is the one-sidedness and lack of impartiality in the Tribunal's selection and citation of judicial cases. On many occasions, it cited biased, highly controversial judicial or arbitral cases and used controversial views and verdicts put forth by arbitrators of this very Tribunal as legal precedent in support of views on the verdict of this case. Such so called self-sufficient and partial arguments have seriously damaged the integrity, logic and consistency of the relevant legal conclusion.
Yet another example is the malicious distortion of the relations between UNCLOS and customary international law. Turning a blind eye to customary international law,the Tribunal kept citing UNCLOS and attempted to make UNCLOS applicable to everything related to the sea. Any one familiar with international law would know well that the regime of international law of the sea provided in UNCLOS is, in itself, a summary of maritime history and practices and a reflection of the common aspirations of countries, and that the very text of UNCLOS shows respect for customary international law. What the Tribunal has done is a breach of the basic purposes and spirit of UNCLOS.
The Tribunal accepted the Philippines' false arguments in its entirety in disregard of the basic fact of the country's abuse of legal procedures. Its moves to jump to conclusions first and then prove them with distortion of evidence and verdicts will be a serious erosion of international judicial system that champions fairness and justice.