Unlawful arbitration worsens tensions in disputed fishing waters

By Shen Dingli Source:Global Times Published: 2016/7/13 19:34:25

The Permanent Court of Arbitration (PCA) has made its award in the Philippines' case on the South China Sea. As pointed out by many, the PCA willfully extended its unfounded jurisdiction over this case. The tribunal that the PCA set up isn't qualified to judge maritime rights based on sovereignty. The case that Manila raised in The Hague in 2013 against China exactly touched upon various issues where sovereignty is at stake. As such, the court has willfully and erroneously expanded its turf to make this unlawful verdict.

Even worse, this tribunal was maliciously intended to promote the Philippines' unwarranted national interests. For instance, the court has ruled that the Taiping Island in Nansha Islands doesn't really constitutes a "legally qualified island," which contrasts with the simple fact that humans have been, for ages, living on the island largely self-sufficiently. The argument that there is no evidence that "human community" has been established on that spot forever, a precondition to establish Taiping as an island, sounds absurd to Chinese on both the mainland and Taiwan.

Such verdict seriously cuts traditionally Chinese fishing area, especially for those from Taiwan, and hence worsens, rather than helps reduce, the fishery disputes in the region. People could hardly imagine such a tribunal would have any proper sense of justice and fairness.

The verdict essentially invalidated the nine-dash line. Such a line emerged well before the 1982 UNCLOS was born, and actually registered China's historical rights in its ocean-bound southern neighborhood before contemporary international maritime law came into being. When China signed up to the UNCLOS in the 1980s and ratified the convention in 1996, it retained the U-shaped line to indicate such rights.

Every multilateral international agreement suits some countries but could also possibly leave some problem. The US has problems with the seabed chapter of the UNCLOS, so it joined the convention without ratifying it. Despite the international effort to revise the convention for the sake of the US, it still has yet to ratify the document.

The convention also poses a challenge to China given China's rather limited exclusive economic zone (EEZ) joining the convention was a sign of China's support to the world while retaining its historical claim through the nine-dash line became Beijing's concrete global commitment and pragmatic approach toward the UNCLOS, which itself was a complex compromise by all parties.

On the one hand, expecting China to join the regime in full compliance with the convention would seriously cut China's EEZ.

On the other, pushing the envelope too far would force Beijing to reevaluate its cost effectiveness of joining the UNCLOS.

A successful international regime should have both the principle of rule of law and strength of reconciliation among various stakeholders to boost the regime rather than to tear it apart.

China has employed such an approach of participation plus consultation to both make the regime cohesive and to reconcile differences with counter-claimants. This becomes more relevant when a large number of those islands and reefs on its side of the nine-dash line have already been seized by other claimants since the 1970s.  Since the overall balancing between sovereignty and economic rights of relevant claimants is so complicated, a simplistic ruling by the PCA tribunal could hardly work. It is for this reason China has preferred to resolving those disputes through negotiation rather than going to the court.

However, the tribunal's rigid award has achieved no balancing, as its announcement has indicated. This lies in the fact that as far as vast stakes such as sovereignty is concerned, the tribunal is not designed to settle disputes at all. Under such circumstance, any mechanical application of the convention could yield unreasonable and unlawful consequences, endangering regional relations.

Those who played the dangerous game have unnecessarily raised the temperature higher.

China's response has been firm and consistent - any unlawful awards would not be accepted and has to be dismantled. Raising tensions higher is unhelpful to all parties. China still welcomes relevant claimants to join direct talks through a process of mutual benefit and concession.

The author is a professor and associate dean of the Institute of International Studies, Fudan University. opinion@globaltimes.com.cn

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Posted in: Asian Review, South China Sea Focus

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