The Court of Arbitration (the PCA) at the Hague ruled in favour of the Philippines in its case against the People’s Republic of China, rejecting Chinese territorial claims over the Spratly Isles in the South China Sea.

For the Western Press, this is a sign that the United States is right to denounce Chinese expansionism.

In actual fact, the Court of Arbitration does not have jurisdiction over boundary disputes. Jurisdiction over such disputes lies with the International Court of Justice, which is also located at the Hague. Thus the Philippines should have brought its claim before it.

The PCA is nothing more than a meeting of arbitrators (not judges) sitting in chambers - that “arbitrates” (not “judges”) disputes between private organizations, NGOs or multi-nationals and States.

In 2013, the Philippines initiated the claim which was restricted to rights related to the Law of the Sea Convention 1982 (UNCLOS 1982).

The People’s Republic of China, which (in contrast to the Quing dynasty) had never been a signatory to the Hague Conventions of 1899 and 1907 establishing the Court, has refused to plead before the PCA, asserting that the PCA lacked jurisdiction over boundary disputes.

In this case, the five arbitrators are:
 Thomas Aboagye Mensah (Chair), a US jurist, originally from Ghana ;
 Jean-Pierre Cot, a former French socialist minister in charge of Cooperation;
 Stanislaw Pawlak, a former Polish ambassador to Syria and to the UN ;
 Alfred H. A. Soons, an adviser to the government of the Netherlands;
 Rüdiger Wolfrum, a German jurist.

Furthermore all are members of the International Tribunal on the Law of the Sea (ITLOS) whose jurisdiction is not limited to maritime areas but extends to ruling on the application of UNCLOS 1982 on flag states or fishing rights.

In their decision, the arbitrators challenged China’s historical claims to title over these inhabited islands, however Chinese until 18th century (then abandoned in the period of colonization), and thus arbitrates accordingly.

This decision (which is not a judgement) - has been rejected both by the People Republic of China which denounces it as a “farce” and the Republic of China (Taiwan). The Sultan of Brunei, Malaysia and Vietnam who are parties to the dispute, have however not commented.

Anoosha Boralessa

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