Recently, A Legal Critique of the Award of the Arbitral Tribunal in the Matter of the South China Sea Arbitration (hereinafter referred to as the Critique) was jointly completed by National Institute for South China Sea Studies (NISCSS) and FIETTA LLP. The full text was published in the Asian Yearbook of International Law and released online by Brill Academic Publishers in the Netherlands for free download by domestic and foreign research institutions, experts and scholars and the international community in general.
Initiated and led by a Chinese think tank with internationally renowned law firm partners, top international law scholars from the UK, the US and the Netherlands, as well as solicitors with rich experience in representing nations in similar legal cases, the Critique is a nearly 200 pages report that has undergone two years of preparation. As such, it is the first refutation of the illegal ruling of the South China Sea Arbitration (Phil. v. China) (hereinafter referred to as the Award).
In an objective, fair and neutral third-party perspective that employs rigorous juristic analysis, the Critique presents a comprehensive and systematic refutation of many fallacies and flaws in the award made by the Arbitral Tribunal in the Matter of the South China Sea Arbitration (hereinafter referred to as the Tribunal) in terms of legal interpretation and application, evidence admissibility and fact-finding.
With regard to the “nine dash line” and China’s historic rights in the South China Sea, the Critique concludes that the Tribunal has no jurisdiction over the Philippine’s Submission concerning China’s historic rights and “nine dash line” in the South China Sea. The Tribunal is not competent to determine the lawful effect of China’s nine dash line and related historic rights. China’s maritime entitlements in the South China Sea are inextricably linked to questions of territorial title over lands and maritime areas in the South China Sea from both historical and legal perspectives and are therefore clearly excluded from compulsory international dispute settlement under United Nations Convention on the Law of the Sea (UNCLOS). The Tribunal’s critical conclusion that UNCLOS “leaves no space for an assertion of historic rights” is highly questionable. Historic rights can and do continue to exist alongside and independent from UNCLOS, as confirmed by the award in the Red Sea case (Eritrea/Yemen) and even in some UNCLOS provisions.
Regarding the legal status of some features in Nansha Islands (Spratly Islands), the Critique concludes that the Tribunal’s findings are also highly questionable. The Tribunal erroneously denied the integrity of China’s Nansha Islands and wrongly concluded that Taiping Islands (Itu Aba Islands) and other islands are not eligible for exclusive economic zones and continental shelves. The Tribunal’s conclusion that Taiping Islands and all of the other high-tide features in the Nansha Islands constitute “rocks,” which cannot sustain human habitation or economic life of their own in the sense of Article 121 of UNCLOS, is open to challenge both as a matter of law and as a matter of evidence. Had the Tribunal been impartial and objective, it could not have concluded that Meiji Reef (Mischief Reef) and other marine features are within the exclusive economic zone of the Philippines, and Chinese activities in the waters around Meiji Reef (Mischief Reef) violate the provisions of UNCLOS. By taking a shocking and controversial “shortcut” in analyzing the legal status of high-tide features, the Tribunal arguably violated its obligation under UNCLOS to confirm its own jurisdiction.
With regard to China’s maritime activities in the South China Sea, the Critique concludes that the Tribunal has no jurisdiction over most of these activities. Even though a number of the Tribunal’s specific merits findings are probably not so controversial on the surface, many of those findings were actually related to isolated incidents or based on limited evidence.
The Tribunal arguably violated its responsibility under UNCLOS to satisfy itself that the Philippines claims were “well founded in fact and law”. For example, the Tribunal engaged with archivists in order to seek out evidence that was ultimately relied upon in order to uphold the Philippines’ claims against China. In parallel, the Tribunal failed to explore evidence that may have been readily available to it and that may have undermined the Philippines’ claims (such as evidence held by island of Taiwan in respect of Taiping/ Itu Aba Islands).
In doing so, the Tribunal arguably exceeded its mandate by relieving the Philippines of its burden of proof. In addition, the Tribunal committed a further procedural error by failing to provide the Parties with an opportunity to cross-examine four experts that it appointed after the merits hearing, and upon whose advice it relied in the Award. As mentioned above, the Tribunal’s many practices, such as lowering the threshold of compulsory procedures and violating the principles of “state consent” and “no trial without complaint”, may lead to international abuses of litigation and bring serious damages to the international rule of law.
A prediction can be made that the official release of the third-party Critique in Western countries will help the international community to further perceive the truth, comprehend the political manipulations and legal defects of the South China Sea Arbitration, and understand from the perspective of international law the necessity and legitimacy of China’s position in that China does not accept or participate in (the arbitration), and does not recognize the so-called “award”.
It should be pointed out that the release of the Critique is not to set off a new round of diplomatic and legal debates with the Philippines. It seeks to reveal once again to international law academia and the entire international community the historic mistakes of the Tribunal and its award and the adverse effect of the Arbitration on the peace and stability of the South China Sea and the international maritime order. We hope they can take this as a lesson in order to cherish and maintain the current good momentum being made in the South China Sea.
It has been more than four years since the award of the South China Sea Arbitration was issued. China’s official position of “no acceptance, no participation and no recognition” has already been widely known by the international community. However, judging from some countries’ preferences for invoking the Award and the existing legal battles in the South China Sea, the Award is far from being just a piece of paper.
Rather, its negative influence on China’s rights and claims as well as the long-term stability in the South China Sea and the maritime cooperation under the framework of the Declaration on the Code of Conduct on the South China Sea (DOC) is increasingly apparent.
Therefore, it is not only the due mission for China’s think tanks of marine studies and legal professionals to fathom. It is also the obligation for every Chinese citizen with a sense of justice to unmask and refute the Award from a third-party perspective and make the Critique known to the international community. This will undercut or even eradicate the negative effect of the Award.
The author is the President of National Institute for South China Sea Studies.