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Sunday, May 15, 2016

Why the Tribunal Dealing with the South China Sea Dispute Should Step Aside to Make Way for a Negotiated Settlement

Ruikun Sun
Prof. Tom Zwart

Increasingly, in the West, in the class rooms of law schools and offices of foreign ministries, international law is being associated exclusively with courts and tribunals. The idea seems to be that something can only be regarded as law if it emanates from an international court. This judicialization of international law overlooks the fact that these international bodies owe their existence to treaties, which are concluded by states, which still are the main actors in international law.  

These international courts and tribunals are not the success story law professors and legal advisers would like us to believe. Thus, over time support for the International Court of Justice has been eroding. This is a consequence of the fact that weaker states use the Court to put pressure on more powerful states, which then renounce the jurisdiction of the Court if they lose. The International Criminal Court has been hailed as the global criminal court, but many of the big players, including three out of the five permanent members of the Security Council, have refused to sign up. Furthermore, the Court and its Prosecutor have managed to alienate the African states parties to such an extent that a mass exodus has almost become inevitable.

Political science teaches us that the support courts enjoy is not unlimited. To retain their legitimacy, they should stick to applying neutral and objective legal principles to facts in a technical fashion. Therefore, they ought to refrain from deciding cases which are unfit for adjudication. The South China Sea dispute, which is currently pending before an Arbitral Tribunal set up under the United Nations Convention of the Law of the Sea (UNCLOS), is such an unsuitable case for three reasons.

First of all, the case is a typical example of what Lon Fuller has called 'polycentricity'. The case involves so many actors and affects so many interests, that the binary format of a court case between opposing parties can never do justice to all. Six states and Taiwan have declared a stake in this matter, but the case only relates to the Philippines and China, while the latter does not even accept the authority of the Tribunal. Because of the remit of the Tribunal under UNCLOS, it is only able to deal with some lesser aspects of the dispute, but it will have to forgo on others, like the crucial issues of maritime boundaries and sovereignty. This means that an award on the merits will only settle part of the issues between some of the interested actors at best, while leaving out other affected parties and points of contention.

In addition, the Tribunal deals with the case on the basis of adversarial court proceedings which pit one party against another on the basis of polarising positions. Such an approach is alien to East Asia's culture of harmony, which relies on a willingness to invest in reconciling conflicts and differences. Consequently, in the region the award will be widely regarded as the fruit of a poisonous tree, and it will fail, therefore, to garner the necessary support.

Finally, the South China Sea, which serves as the passageway for half of the world's goods, is of vital geopolitical importance. Consequently, the dispute should be decided at the political level and not by a judicial tribunal. China has decided not to appear before the Tribunal because it contests its jurisdiction. It is an illusion to think that a legal award in a matter of high politics is going to gain any traction when one of the parties, which also happens to be a permanent member of the Security Council, refuses to take part in the proceedings.



The South China Sea dispute is ideally suited for what is called 'integrative negotiation', which favours cooperation over competition. Rather than opting for a win-lose outcome, where one party prevails at the expense of the others, the parties involved look for a win-win solution, which does justice to the interests of all. Considering the importance attached to harmony in the region, such an integrative approach has a high chance of being successful in this case.

One could rightly claim that thus far attempts to deal with the matter amicably through negotiations have not been successful. This is where something good may come out of the involvement of the Tribunal. In its decision it could appoint a Special Master, who will be entrusted with the responsibility to bring all directly affected parties to the table as part of integrative negotiations. The Tribunal will refrain from pronouncing itself on the merits of the case until a comprehensive settlement will have been reached, or, alternatively, until the Special Master reports that achieving such a settlement is unlikely. This will stimulate all parties involved to invest in the negotiations.

In the past reputable courts have decided to refrain from granting relief if the long term interest of justice so required. Thus, the legendary Chief Justice John Marshall of the U.S. Supreme Court denied the plaintiff's petition for a writ of mandamus in Marbury v. Madison in 1803. Chief Justice Marshall felt that issuing a mandamus would irreparably harm the relations between the Court and the executive branch headed by President Thomas Jefferson. The decision in Marbury v. Madison is widely regarded as a defining moment in the history of the Supreme Court, which went on to become to most highly respected judicial body in the world. Therefore, the members of the Arbitral Tribunal should draw inspiration from this very sound judgment.       

Guest post by Prof. Tom Zwart, Professor of Law, Utrecht University, and Director of the Cross-Cultural Human Rights Centre and  Ruikun Sun, Fellow at the Netherlands School of Human Rights Research