عربي Español Русский Français 简体中文

Veil of the Arbitral Tribunal Must Be Tore Down

--Vice Foreign Minister Liu Zhenmin Answers Journalists' Questions on the So-called Binding Force of the Award Rendered by the Arbitral Tribunal of the South China Sea Arbitration Case

2016/07/13

China Central Television (CCTV): After the arbitration results were issued, some countries stated that "the arbitration award is valid and has binding force on both parties". If China does not execute the award, they will regard it as a "violation of the international law and damage to the international reputation". What is China's view on that?

Vice Foreign Minister Liu Zhenmin: As for whether the arbitration award has the binding force, the Chinese government and the Ministry of Foreign Affairs have already stated our position, that is, the arbitration award has no binding force and it is invalid and illegal. China will neither recognize nor execute the arbitration award. Why do we say that? Reasons have been elaborated systematically in statements of the Ministry of Foreign Affairs and the white paper issued today. Now I mainly want to explain to you on whether the tribunal is a legitimate "international court" in order to tear down the veil of the Arbitral Tribunal.

First, this Arbitral Tribunal is not an "international court". It has nothing to do with the International Court of Justice (ICJ) under the United Nations (UN) system in The Hague. It has a certain relationship with the International Tribunal for the Law of the Sea (ITLOS) in Hamburg, but it is not a part of the ITLOS. It is not in the system of the Permanent Court of Arbitration (PCA) in The Hague either, but they can be related just because the PCA provided secretarial service for the Arbitral Tribunal. The Arbitral Tribunal also used the hall of the PCA to carry out the court trail and that is all. The Arbitral Tribunal is by no means an "international court", which I believe is worth noting.

Second, the establishment of the Arbitral Tribunal is in fact the result of political manipulation. The Arbitral Tribunal consists of five arbitrators. Apart from Professor Rüdiger Wolfrum from Germany, the arbitrator designated by the Philippines, the other four arbitrators were appointed by the Japanese judge Shunji Yanai, who was the then ITLOS President. Who is Shunji Yanai? He is a judge of the ITLOS now and before as well as the Chairman of Advisory Panel on Reconstruction of the Legal Basis for Security set by the Shinzo Abe administration. He plays an important role in helping Shinzo Abe with the lifting of the ban on collective self-defense and challenging the international order after World War II. He was also former Japanese Ambassador to the US. Various sources prove that the composition of the Arbitral Tribunal was completely manipulated by him. Moreover, he also exerted his influence on the proceedings of the Arbitral Tribunal afterwards.

Third, there are big problems in the composition of the Arbitral Tribunal. As the media have seen, among the five arbitrators of the Arbitral Tribunal, four of them come from Europe: one from Germany, one from France, one from the Netherlands, and one from Poland. All these four countries are members of the European Union (EU). The fifth judge is from Ghana, who was the president of the ITLOS when the court was first established, but he lived in Europe permanently. So does a court like this have any representativeness? Do the judges know well about Asian cultures? Do they know the South China Sea issue well? These factors matter to representativeness and fairness of an arbitral tribunal or court, which has been a problem attracting high attention from the international community in the past few decades. When the UN Charter was signed in 1945 and the Statute of The International Court of Justice was enacted, one of the articles explicitly provided that the composition of international courts must represent all major cultures and all main legal systems in the whole world. When the ITLOS was set up afterwards, there was also such a requirement. Why? Because it can ensure that international courts established in the future would have representativeness and authority. The ICJ, the ITLOS and the PCA all have Chinese judges. I myself am one of the four Chinese arbitrators of the PCA. However, none of the five judges of the Arbitral Tribunal is from Asia, let alone China. Do they know Asia? Do they understand Asian cultures? Do they know the South China Sea issue? Do they understand the complicated geographical politics in Asia? Do they know the history of the South China Sea? On what basis can they make a fair award?

Fourth, there is something interesting in the proceedings of the Arbitral Tribunal, which shocked the international legal community. Original viewpoints of some judges convinced people that they would safeguard relevant interests, but during the proceedings of the Arbitral Tribunal, these judges turned their backs on the academic opinions they once held on to. What are the true viewpoints and stances of these judges? They proposed one point of view in their academic articles and showed another one in the Arbitral Tribunal. It makes people question their academic consciousness and set positions. Moreover, as for witnesses approved by the Arbitral Tribunal, one witness once mentioned in his writings that "at least 12 ocean terrains can be classified as islands in Nansha Qundao, so 200 nautical miles of exclusive economic zone can be claimed". However, when stood as the witness in the Arbitral Tribunal, he withdrew his previous view and said that "none of them are islands". What an expert! Unfortunately, the Arbitral Tribunal admitted such evidence without carrying out any investigations or authentication.

Besides, who supported the Arbitral Tribunal? The arbitrators are paid by certain parties, but who? Maybe by the Philippines or other countries. This system is completely different from the ICJ or the ITLOS.

Judges of the ICJ or the ITLOS receive salaries from the UN for the sake of independence and impartiality. But these five judges of the Arbitral Tribunal are doing it for a profit, and their payments come from the Philippines and probably others, too. We are unsure about the details but they do provide paid services. That is to say, this case was the first of its kind that led to the establishment of the temporary arbitration tribunal in self-alleged accordance of the Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS) since the UNCLOS took effect. Nevertheless, this Arbitral Tribunal operates in a way against all expectations and anticipations of the drafters of UNCLOS, setting an unhealthy precedent. I once said last year that this arbitration might become a notorious case in the history of the international law. All the performances of the Arbitral Tribunal show that mandatory arbitral procedures can hardly succeed and this Arbitral Tribunal turns out to be a failure. I cannot see the effectiveness, credibility and impartiality of the award rendered by such Arbitral Tribunal. Some countries said that it is a binding award that requires implementation of concerned parties. This is a sheer lie. Who would enforce a verdict that has no credibility? The position of the Chinese government is clear: the award is null and void and has no binding force. China neither accepts nor recognizes it.

Suggest to a friend
Print