Abstract
This article is a critique of selected issues of the Award handed down by the Permanent Court of Arbitration, referred to as “PCA” or “the Tribunal”, in the 2016 Philippines-China Arbitration. It points out that the Award was entirely in favour of the Philippines which had unilaterally initiated the arbitration; no regard whatsoever was paid to the position of China as expressed in various official Government documents. China refused to participate in the arbitration proceedings on the grounds that by written declaration it had withdrawn from the compulsory procedures for dispute resolution set out in the United Nations Convention on the Law of the Sea, 1982 (UNCLOS). As such, China rejects the legal validity of the Award and has declared it to be unenforceable. In this article, the doctrinal research method is employed to carry out a comparative analysis of the opinion expressed by the Tribunal and the position adopted by China in terms of the interpretation and application of Article 298(1), in relation to China’s withdrawal from the procedures provided in Section 2 of Part XV. Since the publication of the Award, a significant amount of legal literature has been produced, much of which is supportive of the Award. This article presents an alternative viewpoint from a Chinese perspective. It is submitted in unison with the Chinese position that the Tribunal lacked jurisdiction to undertake the arbitration. The article selectively discusses the Chinese position based on China’s perception of historical title over the maritime features in the South China Sea and its view that the dispute concerns sovereignty over those maritime features which is outside the scope of UNCLOS. The article concludes that its aim is to underscore the need for an objective and unbiased approach to dispute resolution by tribunals in the field of international sea law and that the better way forward for both states is to continue negotiations.
Highlights
After prolonged deliberation, on 12 July, 2016, the Permanent Court of Arbitration (PCA)1 handed down the Award on the merits, referred to as “the Award”, in the arbitration concerning the dispute between the People’s Republic of China and the Republic of the Philippines
At the very core of arbitration as a dispute settlement method lies the phenomenon of consensuality. It has been stated by the Permanent Court of International Justice (PCIJ) that “[A]rbitration is essentially a consensual procedure,” (Status of Eastern Carelia, Advisory Opinion, 1923) and in one well-known text it has been pointed out unequivocally in the context of public international law, that “States cannot be compelled to arbitrate unless they agree to do so, either generally and in advance, or ad hoc in regard to a specific dispute
Be refuted in light of Article 4(1) of the Statute of the International Court of Justice (ICJ) which provides as follows: The members of the Court shall be elected by the General Assembly and by the Security Council from a list of persons nominated by the national groups in the Permanent Court of Arbitration,
Summary
On 12 July, 2016, the Permanent Court of Arbitration (PCA) handed down the Award on the merits, referred to as “the Award”, in the arbitration concerning the dispute between the People’s Republic of China and the Republic of the Philippines. The analysis presented invariably involves applications of some principles belonging to the broader arena of private law that are germane to the discussion It is predicated on the necessity of even-handedness as a parameter of the equitable dimension of interstate dispute resolution in decisions and awards of international tribunals entrusted with matters of serious national concerns. In view of the subject matter of the article being an arbitral award as distinguished from a judicial decision, it is expedient to probe into the phenomenon of arbitration, in particular, from the perspective of inter-state disputes and the role of an international arbitral tribunal This begs the question of the status of the PCA in international law and its historical evolution. A summary is presented of the salient issues discussed in the article and pointing to the way forward in recognition of the inevitable unenforceability of the Award
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