South China Sea arbitration decided by biased arbitrators

Source:Xinhua Published: 2016/7/19 21:37:31

The arbitration over the South China Sea dispute unilaterally initiated by the former Philippine government is in fact a celebration among rogue arbitrators, who have hidden their selfish motives under the guise of the rule of law.

In 2013, the Aquino III administration brought an arbitration case over its South China Sea dispute with China, prompting a five-member ad hoc arbitral tribunal.

By doing so, the Philippines violated its standing agreement with China to settle the their disputes through bilateral negotiation. The country also violated China's right to decide its own means of settling a dispute as a State Party to the United Nations Convention on the Law of the Sea (UNCLOS).

Last Tuesday, the tribunal issued a so-called final award, denying China's long-standing historic rights in the South China Sea.

The Chinese government said in a white paper that as the arbitration had no jurisdiction over this particular case, awards rendered by it are null and void and have no binding force.

"China's territorial sovereignty and maritime rights and interests in the South China Sea shall under no circumstances be affected by those awards. China does not accept or recognize those awards. China opposes and will never accept any claim or action based on those awards," it said.


Most of the members of the ad hoc tribunal were picked by Shunji Yanai, then president of the International Tribunal for the Law of the Sea and former Japanese ambassador to the United States.

Yanai presented a report to Japanese Prime Minister Shinzo Abe that called for the lifting of a ban on Japan's ability to send its military abroad in a combat role, something that would run counter to its constitution.

Yanai's creation of the arbitral tribunal is believed to be biased as he initially picked Judge Chris Pinto of Sri Lanka -- whose wife is a Filipino -- as one of the tribunal's members.

Pinto was later replaced by Judge Thomas A. Mensah of Ghana, who pursued long-term studies in Britain and the United States.

The other four members are Judge Jean-Pierre Cot of France, Judge Stanislaw Pawlak of Poland, Professor Alfred Soons of the Netherlands and Judge Rudiger Wolfrum of Germany.

Four members have extensive experience in arbitration, among whom Mensah participated in five arbitration cases over maritime disputes and Wolfrum, three.

However, some members' stances in past cases are questionable as they have set the precedent of expanding tribunal jurisdiction at will and ignoring sovereignty issues.

Wolfrum, who was designated by Manila in the South China Sea arbitration case, participated in an arbitration case over the Chagos Archipelago dispute between Britain and Mauritius from December 2010 to March 2015. He was an arbitrator designated by Mauritius in the case.

Britain maintained that the tribunal had no jurisdiction over the case as it touched upon sovereignty issues. But Wolfrum, along with other arbitrators, rejected Britain's appeal.

When the Netherlands sued Russia after the latter's navy boarded and detained the crew of a Dutch vessel in waters off the Russian coast in 2013, Moscow asserted that the court had no jurisdiction in the matter and refused to participate in the hearings.

Wolfrum, who was not an arbitrator in the Russian case, released an opinion with another judge, in which they strongly criticized Russia's stance.

International law experts say that the long-standing opinion that an arbitrator holds on some kind of dispute may influence his or her judgement in other cases, prompting him or her to make a presumptive decision and affecting the impartiality of arbitration.

Shunji Yanai knows this all too well. He also knows that he can easily create a tribunal biased against China by choosing some arbitrators who are more inclined to ignore sovereignty issues.

Of course, biased arbitrators are not enough. The role of the United States as global policeman was key.

Evidence shows that the United States has long been instigating and manipulating the Philippines to act on a so-called legal front.

Experts point out that without the careful planning of the Untied States, the Philippines alone would not have been able to file the arbitration case.

The US legal team not only appeared before the ad hoc tribunal, but also took charge of the drafting of the several-thousand page legal document.

But the most important merit of the legal team, said the experts, is its inextricable connection with the tribunal.

US lawyer Bernard Oxman, who represented the Philippines in the arbitration, had previously worked with Shunji on many occasions.

Oxman also has close ties to the US government. He used to be the Assistant Legal Adviser for Oceans, Environment, and Scientific Affairs of the US Department of State from 1968 to 1977.

Oxman was also the vice-president of the US delegation to the third United Nations Conference on the Law of the Sea (UNCLOS III) and one of the coordinators of the English language group of the drafting committees of the Conference. This despite the fact that the United State has yet to join UNCLOS.

Experts point to the fact that the complicated and inextricable connections between the arbitrators and the Japanese and US governments as well as the Philippines have constituted a huge network of political interests, which trampled justice by abusing the international law and order.

Posted in: Diplomacy

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