Writer Zhang Jianhua
LONDON, June 14 (Xinhua) -- Two leading experts on international law in Britain have recently published two research papers, both concluding that an arbitral tribunal which allowed the South China Sea case initiated by the Philippines against China to go ahead is not convincing in many respects.
Antonios Tzanakopoulos, associate professor of public international law at the University of Oxford, and Chris Whomersley, a former deputy legal adviser to the British Foreign and Commonwealth Office, were the experts.
JURISDICTION QUESTIONABLE
In 2013, the Philippines unilaterally filed compulsory arbitration against China at the Permanent Court of Arbitration in The Hague with respect to the two sides' dispute in the South China Sea.
The dispute is obviously concerning sovereignty and maritime delimitation, which are beyond the stipulations of the United Nations Convention on the Law of the Sea (UNCLOS), according to a recent research paper by Tzanakopoulos originally published in the Social Science Research Network (SSRN).
"Both the Philippines and the Tribunal sought to carve out distinct and limited 'disputes' over which the Tribunal could make a decision," but this carving-out exercise "smacks of artificiality," he wrote.
China made a declaration in 2006 in accordance with Article 298 of the UNCLOS, making it clear that China would exclude disputes on maritime delimitation from compulsory arbitration.
The paper further elaborated: "It is difficult to see how questions of entitlement generated by maritime features are not inextricably intertwined with issues of delimitation as well as with issues of sovereignty over the relevant features."
Tzanakopoulos' analysis on the jurisdiction of the arbitral tribunal was echoed by Whomersley.
In his paper published last week by the Chinese Journal of International Law, an independent and peer-reviewed research journal, Whomersley wrote that "questions of territorial sovereignty, status of features and maritime delimitation are inextricably linked; to consider only one element out of these three is unreal and artificial, and worse it risks producing a distorted result."
The tribunal "failed to recognize that the fundamental dispute is about the sovereignty over the features in the South China Sea, and that the status of the features, such as whether they are low-tide elevations or 'rocks,' is a question which can only logically be answered once the sovereignty dispute has been resolved," Whomersley wrote. "To put it succinctly: the Tribunal should have got below the surface of the Philippines' claims, but it did not."
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