Interview: Negotiation better than tribunal for settling South China Sea disputes: legal expert

by Liu Fang, Maria Vasileiou THE HAGUE, May 22 (Xinhua) -- A code of conduct (COC) reached through direct negotiations and consultations based on international law might be a solution to the South China Sea issue, a Chinese expert on law of the sea said on Friday. Professor Kuen-chen Fu, dean of the South China Sea Institute from China's Xiamen University, criticized the biased nomination of arbitrators in the initial stage for the South China Sea arbitral tribunal set up at the request of the Philippines. The then president of the International Tribunal for the Law of the Sea, who enjoyed the right to organize the ad hoc arbitral tribunal in 2013, was a retired Japanese diplomat who happened to be a supporter of Japanese Prime Minister Abe's move to amend Japan's war constitution. This Japanese president nominated a Sri Lankan judge, experienced international lawyer Chris Pinto, to head the arbitral tribunal. Unfortunately, it was found out later on that Pinto's wife happened to be a Filipino. Only after this was criticized openly, Judge Pinto was replaced by Thomas A. Mensah from Ghana. "In any legal system in the world, it is always provided in the procedural law that if you have any relevance with one of the parties in the case, you should voluntarily say 'Hey,I have to avoid this case'," noted Fu when meeting international journalists in The Hague The professor considered the initial nomination dented the credibility of the tribunal, not to mention the fact that China made a written statement in 2006, excluding and refusing to accept "any compulsory jurisdiction on the South China Sea issue according to the United Nations Convention on the Law of the Sea. As to the pending award on the arbitration case, the professor suggested that the arbitrators should "take into account all the considerations and change their intermediate award which stated they had jurisdiction over 7 of the 15 points brought up by Manila". There should have been more peaceful solutions to the disputes. "In 2002, China and the ASEAN countries reached a Declaration of Conduct (DOC) in the South China Sea region, in which all parties agreed to freeze their activities that might risk escalation of tension," said Fu. In the following years, China behaved itself, but some of its neighbors in the region constructed their runways, helicopter courts, new harbor docks and/or immigrated people to some islands and rocks. "The Filipinos even built a church and kindergartens on Zhong Ye Island, for obvious reasons," Fu added. Countries violating the DOC, backed by the United States, insisted that the DOC is not so binding as a treaty or an agreement. China has initiated the negotiation for a COC on the basis of the DOC."Everyone said if we have a COC, it will be binding. So a COC might be a solution," the expert said. "But let me emphasize this, if some of these parties do not cherish a peaceful community of the South China Sea, keep ignoring international conventions and relying on their ally and the bombers to strengthen their position, any COC, XOC, YOC or ZOC will not be helpful," Fu concluded.