Arbitration tribunal has no jurisdiction over South China Sea issue: experts

An arbitral tribunal with widely contested jurisdiction Tuesday will issue its final award on the South China Sea case unilaterally initiated by the Philippines.

China has refused to participate in the proceedings and declared that it will never recognize the verdict, stressing that the tribunal has no jurisdiction because the case is in essence related to territorial sovereignty and maritime delimitation.

Beijing has pointed out that territorial issues are not subject to the UN Convention on the Law of the Sea (UNCLOS), and that as early as in 2006 it declared -- in line with UNCLOS -- to exclude disputes concerning maritime delimitation from mandatory dispute-settlement procedures. Some 30 countries have also filed declarations of this kind.

The Permanent Court of Arbitration (PCA) in The Hague has no jurisdiction over South China Sea disputes between China and the Philippines, which unilaterally filed an arbitration case, a Hong Kong law expert said on Monday.

Teresa Cheng, Chair of the Hong Kong International Arbitration Center (HKIAC) made the remarks here during a media briefing, citing the United Nations Convention on the Law of the Sea (UNCLOS) .

Cheng said that according to the UNCLOS, both sides in the disputes should conduct negotiations prior to filing an arbitration, while the Philippines has not conducted negotiations with China.

China and the ASEAN member states, including the Philippines, jointly signed the Declaration on the Conduct of Parties in the South China Sea (DOC), agreeing to solve disputes by peaceful means.

"The DOC is still under implementation, therefore both the Philippines and China do not have the right to file an arbitration during this process," Cheng said, "From legal aspect, the PCA has no arbitration jurisdiction over the case as the Philippines did not take the right steps."

In addition, the sovereignty and territorial disputes are not under the jurisdiction of the UNCLOS, Cheng said, adding China has made related declaration excluding disputes concerning the above issues.

Teresa Cheng, Chair of the Hong Kong International Arbitration Center

The government of former Philippine President Benigno Aquino III filed the arbitration against China in 2013, despite an agreement his country had reached with China on resolving their South China Sea disputes through bilateral negotiations.

Although Manila asserted that its submissions do not concern territorial sovereignty or maritime delimitation, the Philippine Foreign Ministry, a day after launching the arbitration, described the purpose of the case as being to "protect our country's territory and oceanic area" and vowed not to "give up our country's sovereignty."

Abraham Sofaer, a former legal adviser to the U.S. State Department, said last month that the tribunal's ruling "will broadly undermine the potential utility of international adjudication."

Meanwhile, Beijing, whose stance on the arbitration case has drawn support from more than 60 countries and international organizations, insists that the South China Sea issue should be resolved through negotiations and consultations between the directly involved parties.

Many in the Philippines share this view. Rosario Manalo, a former Philippine foreign affairs under-secretary for international economic relations, said the best thing for both the Philippines and China is to "sit down and talk."

The country's new President Rodrigo Duterte also said he will pursue bilateral talks with China, adding he might explore possible joint exploration in the disputed South China Sea.

(APD)