TWO weeks after the arbitral tribunal of the United Nations Convention on the Law of the Sea issued its award to the Philippines, China continues to seek to undermine the legitimacy of the tribunal, making charges bordering on the slanderous against the judges concerned.
While affirming “China’s non-acceptance and non-recognition of the so-called award,” the Chinese government is challenging the standing of the tribunal itself.
A Chinese foreign ministry spokesman, Lu Kang, has stated of the tribunal: “It is not an international arbitration court. It is an illegal setting-up assembled at the unilateral request of the then Philippine government.” That is to say, China considers the tribunal itself to be illegal. Hence, not heeding its ruling was the only right way to uphold the international legal system.
But the tribunal was set up under the UNCLOS, which was ratified by China’s National People’s Congress. China, therefore, has an obligation to abide by the convention and, in the case of a dispute, it has an obligation to accept the ruling of the relevant body hearing the dispute, which would normally include arbitrators named or otherwise agreed to by China.
China cannot legitimately argue after the fact that because it refused to take part in the arbitration, the judges involved were biased.
As for China’s insistence that the tribunal is not a body linked to the UN, linkage is provided for in the text of the convention itself, which says in Article 2 of Annex VII, “A list of arbitrators shall be drawn up and maintained by the Secretary-General of the United Nations.”
Article 7 of Annex VII, which deals with expenses, provides that “… the expenses of the tribunal, including the remuneration of its members, shall be borne by the parties to the dispute in equal shares.” Because China refused to pay its share, the Philippines paid China’s share as well.
Now, China is using this to suggest that the judges were biased because they were paid by the Philippines. China is even suggesting darkly that other governments may have been involved in paying the judges.
Perhaps China doesn’t understand the concept that the independence of the judiciary means that judges make rulings according to the law, not according to who pays them. In any event, China threw away the opportunity to pay half the judges’ fees.
Far from the tribunal being illegitimate and its ruling invalid, the 500-page award provides precedents for future cases involving the law of the sea. Its ruling on what differentiates a rock from an island will be applicable not only to the South China Sea but to other maritime disputes as well.
An island, the convention says, must be capable of sustaining human habitation or economic life of its own. With the ruling, we now know that the stationing of military personnel who rely on outside supplies doesn’t turn a rock into an island.
The tribunal determined that “the criterion of human habitation is not met by the temporary inhabitation of the Spratly Islands by fishermen, even for extended periods…. The Tribunal considers human habitation to entail the non-transient inhabitation of a feature by a stable community of people for whom the feature constitutes a home and on which they can remain. This standard is not met by the historical presence of fishermen that appears in the record before the Tribunal. Indeed, the very fact that the fishermen are consistently recorded as being “from Hainan” or elsewhere, is evidence for the Tribunal that they do not represent the natural population of the Spratlys.”
China is trying hard to create the impression that it is not isolated; indeed, it says that most countries support the Chinese position. It is unclear how many countries support China. The Wall Street Journal reported last month that only eight—Afghanistan, Gambia, Kenya, Niger, Sudan, Togo, Vanuatu and Lesotho—have stated such support. Some countries, such as Slovenia, Poland and Fiji, have denied that they support China.
Nonetheless, China is continuing its campaign, putting pressure on governments, think tanks and influential individuals to issue statements in its support. So far, the pickings have been slim.
China, while pledging to uphold rule of law, is actually substituting power for law by putting pressure on others to gain support. This is not strengthening the law, it is weakening it by dividing the world into two camps, one that bows to China’s will and one that is still reluctant to do so.