specialists on the possibility of fresh South China Sea arbitration for the Philippines

In recent months, the Philippines, supported by some external forces, has fueled tensions in the South China Sea, even though China has indisputable sovereignty over the islands in the South China Sea and their adjacent waters.

In the rhetoric of the Philippines, the so-called award of the “South China Sea Arbitration” unilaterally initiated by the Philippines in 2013 has become the legal basis for its series of activities. The Philippines has recently been threatening to initiate a new round of arbitration.

The “South China Sea Arbitration” refers to the Philippines’ splitting, packaging, and submitting certain issues regarding territorial disputes over islands and reefs between China and the Philippines, as well as maritime delimitation disputes, to Annex VII arbitration proceedings under United Nations Convention on the Law of the Sea (UNCLOS), in a disguised and transformed manner.

The Chinese government has clearly and unequivocally stated its position of “non-acceptance and non-participation” ever since the Philippines initiated the “South China Sea Arbitration.”

In 2006, pursuant to Article 298 of UNCLOS, China excluded issues relating to sea boundary delimitations from the jurisdiction of a court or tribunal.

Lei Xiaolu, a professor of law at the China Institute of Boundary and Ocean Studies, Wuhan University, said that the arbitral tribunal ignored such an exclusion declaration by China and forcibly exercised such jurisdiction.

“In interpreting Article 121 on the issue of ‘the definition of an island and its judgment,’ the arbitral tribunal’s approach completely deviates from state practice of the entire world and the international community,” Lei said.

Gilbert Guillaume, former president of the International Court of Justice and a Judge of the Court, once said that “the tribunal did not interpret the text; it rewrote it completely.”

Who exactly makes up this arbitral tribunal?

Wu Shicun, chairman of Huayang Research Center for Maritime Cooperation and Ocean Governance, said that the five judges are all European.

“One is from the African country of Ghana. But he has lived in England for so long that you can consider him a European. Judges from France, Germany, the Netherlands, and Poland have no understanding of Asian affairs and the South China Sea issue,” said Wu.

Lei said that the “South China Sea Arbitration” couldn’t possibly be part of international law.

“If such a politically manipulated arbitral award, full of errors and biases, becomes part of international law, it will have an indelible negative impact on the integrity, authority and fairness of the international rule of law,” said Lei.

In 2002, China signed the Declaration on the Conduct of Parties in the South China Sea with ASEAN countries including the Philippines. Article 5 of the Declaration explicitly requires the parties to “undertake to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability.”

The Philippines’ recent attempts to permanently encroach on Ren’ai Jiao (Second Thomas Shoal) clearly constitute a serious breach of these obligations.

“The Philippines is now engaging in unilateral infringement actions, and other claimants may follow suit,” Wu warned.

Wu called the award of the “South China Sea Arbitration” a “shameful page in the history of international arbitration,” adding that the Philippines’ threat to initiate a new arbitration has two considerations.

“Testing the reaction of the international community and China’s attitude, and there are also threats… to force China to make some compromises, make a deal,” he said. “The new arbitration will only have a greater negative impact on the situation in the South China Sea and add fuel to the fire.”