Disregarding Facts and Jurisprudence, theArbitration Is Neither Fair Nor Just
The Philippines' South China Sea arbitration is a politicalprovocation under the cloak of law. In the end of October, indisregard of basic facts and fundamental jurisprudence, theArbitral Tribunal set up at the unilateral request of thePhilippines rendered the award on jurisdiction andadmissibility of the arbitration. Confounding black and white, the Tribunal spared no effort to back up the Philippines' arguments, thus rendering support and encouragement to thePhilippines' illegal occupation of China's territory andencroachment upon China's maritime rights and interests. Fraught with far-fetched and unfounded assumptions, thereasoning process of the Tribunal was by no means based onfacts, common sense or justice, and its positions were neitherfair nor impartial.
What has truly happened cannot be covered up by anarbitration that ignores facts. The Tribunal deliberately framedthe previous consultations between China and the Philippinesconcerning disputes over territorial sovereignty and maritimedelimitation as consultations on the interpretation andapplication of the United Nations Convention on the Law ofthe Sea (UNCLOS), and affirmed these consultations asevidence that the Philippines had fulfilled its obligation ofexchange of views. As a matter of fact, China and thePhilippines have never had any negotiations, not evenexchange of views, on the arbitration matters.
There is no trace of justice in an arbitration that violatesjurisprudence. For example, the Tribunal knows full well thatit has no jurisdiction over a case concerning territorialsovereignty and maritime delimitation. On the one hand, itevaded the essence of the dispute and insisted that this casehad nothing to do with territorial sovereignty. On the otherhand, in disregard of China’s declaration in accordance withUNCLOS in 2006 which excludes disputes concerningmaritime delimitation from arbitral proceedings, the Tribunaldeliberately included into its jurisdiction matters that, inessence, concern territorial sovereignty and maritimedelimitation. Such moves to arrogate power are a violation ofthe spirit of diligence and self-discipline which judicial bodiesshould honor when hearing cases. They are also detrimental tothe credibility and value of dispute settlement through judicialmeans.
Another example is the one-sidedness and lack of impartialityin the Tribunal's selection and citation of judicial cases. Onmany occasions, it cited biased, highly controversial judicial orarbitral cases and used controversial views and verdicts putforth by arbitrators of this very Tribunal as legal precedent insupport of views on the verdict of this case. Such so called self-sufficient and partial arguments have seriously damaged theintegrity, logic and consistency of the relevant legal conclusion.
Yet another example is the malicious distortion of the relationsbetween UNCLOS and customary international law. Turning ablind eye to customary international law,the Tribunal keptciting UNCLOS and attempted to make UNCLOS applicable toeverything related to the sea. Any one familiar withinternational law would know well that the regime ofinternational law of the sea provided in UNCLOS is, in itself, asummary of maritime history and practices and a reflection ofthe common aspirations of countries, and that the very text ofUNCLOS shows respect for customary international law. Whatthe Tribunal has done is a breach of the basic purposes andspirit of UNCLOS.
The Tribunal accepted the Philippines' false arguments in itsentirety in disregard of the basic fact of the country's abuse oflegal procedures. Its moves to jump to conclusions first andthen prove them with distortion of evidence and verdicts willbe a serious erosion of international judicial system thatchampions fairness and justice.
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