Legal flaws of South China Sea Arbitration case

XUE Li1

(1.Institute of World Economics and Politics, Chinese Academy of Social Sciences, Beijing, China 100732)

【Abstract】The Arbitral Court led by Judge Thomas A. Mensah made efforts to promote justice in hearing and ruling of the arbitrational case. Yet it has obvious legal flaws in the following aspects. It has accepted the Philippines’ arbitrational claims while Beijing and Manila still have to solve the disputes through diplomatic negotiation; the award has completely favored Philippines’ claims with limited consideration of principle of prudence and fairness; and it appeared to punish China. Furthermore, the award on legal status of maritime features in the Nansha Islands is not in line with the general willingness of most of the global littoral states and island countries, especially its ruling of Taiping Dao is not convincing. Last but not the least, the ruling of China’s historical rights in South China Sea has applied the United Nations Convention on the Law of the Sea (UNCLOS) as maritime law, which is against the basic logic of international laws and restrains the development of international maritime law. In short, all these evidences suggest that the award deviate mainstream legal and SCS discourse and can hardly accept by many states.

【Keywords】 South China Sea Arbitration case; award; legal flaws;

【DOI】

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(Translated by ZHANG Ning)

    Footnote

    [1]. *This article was expanded from the “Ruling of Mensah Arbitral Tribunal is against Mainstream International perception.” The original article has about 5000 Chinese characters and it was published on the Chinese website of the Financial Times. After the publication of the article, the author received some feedback; coupled with his communication with scholars at home and abroad when attending academic conferences, the author had a deeper understanding of the case and therefore, the article was expanded. In the process of writing and modifying this article, the author benefited from the criticism, guidance and help of many people, including Liu Heng, Luo Guoqiang, Liu Dan, Zuo Xiying, Zheng Zhihua, Li Kaisheng, Zou Keyuan, Wang Guanxiong, Xue Guifang and Chen Nahui. [^Back]

    [2]. ①At the series of East Asia leaders’ meetings held in Laos in September 2016, China and ASEAN countries reached a consensus: to reach the draft framework of “Declaration on the Conduct of Parties in the South China Sea” by July 2017. This once again shows that there is an effective channel of communication between the claimants, and the Philippine argument of “exhaustion” is not in line with the fact. Please refer to Liu, Z. http://www.chinanews.com/gn/2016/09-09/7999331.shtml [^Back]

    [3]. ②This was the reply the author got when he consulted a Philippine scholar in June 2016. [^Back]

    [4]. ①According to Article 9 of Annex VII to the UNCLOS, “if one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case, before making its award, the arbitral tribunal must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law”. [^Back]

    [5]. ②Permanent Court of Arbitration: South China Sea Ruling (the Philippines v. the PRC), news, pp. 2.①This view was inspired by Professor Wang Guanxiong of Taiwan Normal University. [^Back]

    [6]. ①The reason for the appearance of No.5 well when there are only four wells is that originally there were 11 wells numbered from 1 to 11 on Taiping Dao and seven of them were filled for the construction of the airport runway. Thanks go to Professor Wang Guanxiong for answering questions during the Haikou meeting on August 25, 2016. [^Back]

    [7]. ②The arbitral tribunal’s inference is reasonable. At the end of August 2016 in Haikou, the author talked to the scholars from Taiwan who had been to Taiping Dao and confirmed that the officers and soldiers there drink the mineral water transported from Taiwan. [^Back]

    [8]. ③The 12 islands are: Taiping Dao (Itu Aba Island) controlled by China’s Taiwan, Zhongye Dao (Thitu Island), Xiyue Dao, Beizi Dao, Nanyao Dao and Mahuan Dao controlled by the Philippines, Nanzi Dao (Southwest Cay), Dunqian Shazhou, Anbo Shazhou, Nanwei Dao, Hongxiu Dao, and Jinghong Dao controlled by Vietnam. [^Back]

    [9]. ④The original text is that: it can be argued in good faith that the islands we have identified are not “rocks which cannot sustain habitation or economic life of their own” within the meaning of Article 121(3). As a result, they would, in principle, be entitled to a territorial sea, EEZ and continental self of their own. [^Back]

    [10]. [1] “The South China Sea Arbitration Award of 12 July 2016”, PCA Case No.2013–19, p.62. [^Back]

    [11]. [2] “The South China Sea Arbitration Award of 12 July 2016”, PCA Case No.2013–19, pp.60–61. [^Back]

    [12]. [3] “The South China Sea Arbitration Award of 12 July 2016”, PCA Case No.2013–19, p.41. [^Back]

    [13]. [4] Gau, S. Evaluation of the Situation in the South China Sea in 2015, Liu, F. & Wu, S. (eds.) Taipei: Hanya Information Co., Ltd., 223 (2016). [^Back]

    [14]. [5] “The South China Sea Arbitration Award on Jurisdiction and admissibility, 29 October, 2015”, PCA Case No. 2013–19, pp. 67–68. The Chinese version was translated by Gau Sheng-ti. Please refer to Gau, S. Evaluation of the Situation in the South China Sea in 2015, Liu, F. & Wu, S. (eds.) Taipei: Hanya Information Co., Ltd., 223 (2016). [^Back]

    [15]. [6] “The South China Sea Arbitration Award of 12 July 2016”, PCA Case No.2013–19, p.253. [^Back]

    [16]. [7] “The South China Sea Arbitration Award of 12 July 2016”, PCA Case No.2013–19, pp.187–188. [^Back]

    [17]. [8] “Philippines/China, Hearing on the Merits and Reminding Issues of Jurisdiction and Admissibility, November 25, 2015”, p.83; “Philippines/China, Hearing on the Merits and Reminding Issues of Jurisdiction and Admissibility, November 30, 2015”, pp.15–16. Tai, T. & Yilmaz, S. Chinese Review of International Law (国际法研究), (04) 2016. [^Back]

    [18]. [9] [14] http://www.360doc.com/content/16/0324/11/6690723-544837964.shtml [^Back]

    [19]. [10] http://tw.people.com.cn/n1/2016/0323/c14657-28219957.html [^Back]

    [20]. [11] “The South China Sea Arbitration Award of 12 July 2016”, PCA Case No.2013–19, p.189. [^Back]

    [21]. [12] Ye, Q. et al., Evaluation of the Situation in the South China Sea in 2015, Liu, F. & Wu, S. (eds.) Taipei: Hanya Information Co., Ltd., 243 (2016). [^Back]

    [22]. [13] Tseng-Chieng Huang, Shing-Fan Huang and KuoCheng Yang, “The Flora of Taipingdao (Itu Aba Island)”, Taiwania, 39, 1994, pp.1–26, quoted from Tai, T. & Yilmaz, S. Chinese Review of International Law (国际法研究), (04) 2016. [^Back]

    [23]. [15] “The South China Sea Arbitration Award of 12 July 2016”, PCA Case No.2013–19, p.188. [^Back]

    [24]. [16] http://money.163.com/16/0714/12/BRUDFCPR00253B0H_all.html [^Back]

    [25]. [17] [22] Tai, T. & Yilmaz, S. Chinese Review of International Law (国际法研究), (04) 2016. [^Back]

    [26]. [18] http://www.chinanews.com/tw/2016/04-07/7826482.shtml [^Back]

    [27]. [19] “The South China Sea Arbitration Award of 12 July 2016”, PCA Case No.2013–19, pp.239–240. [^Back]

    [28]. [20] “The South China Sea Arbitration Award of 12 July 2016”, PCA Case No.2013–19, p.252. [^Back]

    [29]. [21] “The South China Sea Arbitration Award of 12 July 2016”, PCA Case No.2013–19, p.253. [^Back]

    [30]. [23] Robert C. Beckman and Clive H. Schofield, “Defining EEZ Claims from Islands: A Potential South China Sea Change”, International Journal of Marine and Coastal Law, Vol.29, Issue 2, 2014, p.210. [^Back]

    [31]. [24] Permanent Court of Arbitration: South China Sea Ruling (the Philippines v. the PRC), news, 12 July 2016, pp. 2. [^Back]

    [32]. [25] “The South China Sea Arbitration Award of 12 July 2016”, PCA Case No.2013–19, pp.111–117. [^Back]

This Article

ISSN:1008-6099

CN: 44-1124/D

Vol , No. 06, Pages 56-61+71

November 2016

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Article Outline

Knowledge

Abstract

  • 1 Negotiations beforehand
  • 2 Fairness of the award
  • 3 Principle of prudence
  • 4 Legal status of the Taiping Dao (Itu Aba Island)
  • 5 Historical rights in the South China Sea
  • Conclusion
  • Footnote