The so-called award made by the South China Sea arbitral tribunal attracted wide attention. Media coverage here in the UK generally shared the same logic: this ruling represents the international law and China's non-acceptance of this ruling is in violation of international law. But is this true?
It is common sense that a legitimate arbitration needs to meet certain conditions. First, the tribunal shall have jurisdiction over the subject matter. Second, the arbitrators shall be impartial and authoritative. Third, the procedure must be reasonable. Fourth, the ruling on the substantive issues should help resolve disputes.
Does the South China Sea arbitration meet any of these conditions? The answer is no.
First and foremost, the tribunal does not have jurisdiction. The subject matter of the arbitration initiated by the Philippines, and the real intention behind it, is in essence related to territorial sovereignty and maritime delimitation. Issues of territorial sovereignty are clearly beyond the scope of the UN Convention on the Law of the Sea (UNCLOS), and issues of maritime delimitation have been excluded by the declaration that China made years ago in accordance with UNCLOS. The arbitral tribunal in fact expanded its power into areas outside of its jurisdiction.
Second, the composition of the tribunal – an ad hoc body having nothing to do with the International Court of Justice – is questionable. None of the five arbitrators is from Asia or has much knowledge of Asian history and culture. Most inconceivable in the arbitration process was that two arbitrators totally abandoned the opinions that they used to hold. This only increases doubts about the impartiality, representativeness and the authoritativeness of the tribunal.
Third, the procedure of the arbitration went against normal practice. According to the dispute settlement system of the Convention, bilateral channels between state parties comes before arbitration. However, disregarding prior bilateral agreements between China and the Philippines to resolve the disputes through negotiations and consultations, the tribunal forced ahead with the arbitration proceedings. Such procedure is utterly unreasonable and it contravenes the general practice of international arbitration under the Convention.