In the case of arbitration unilaterally initiated by the former Philippine government, the ragtag arbitral tribunal of the Permanent Court of Arbitration virtually played a madcap role in overstepping the boundaries of international law.
From its establishment, its running process to its personnel structure and the so-called "final award", many loopholes have shown that this temporary body is by no means just or authoritative.
AD HOC TRIBUNAL
After the release of the so-called "final award" in the case of the South China Sea arbitration, some Western media reported that the Permanent Court of Arbitration (PCA) made the ruling, or a U.N.-backed arbitral tribunal issued the award. However, such statements are totally untrue.
The arbitral tribunal for the case of the South China Sea arbitration was actually an ad hoc tribunal set up at the outset of a case and disbanded after the case is closed. It has nothing to do with the International Court of Justice (ICJ), a principal judicial organ of the United Nations (U.N.) founded according to the U.N. Charter.
The ad hoc arbitral tribunal has no direct relationship with the International Tribunal of the Law of the Sea (ITLOS) either. The only connection between the two is that according to the requirement of the U.N. Convention on the Law of the Sea (UNCLOS), if parties of the case don't appoint their arbitrators at the ad hoc tribunal, the ITLOS president will appoint the arbitrators.
Neither does the ad hoc arbitral tribunal have direct relationship with the PCA, while the latter only provided revenue and secretariat services to the former.
To sum up, the ad hoc South China Sea arbitral tribunal was neither a permanent arbitration facility, nor a authoritative judicial organ on the international law of the sea. Rather, it is merely a temporary tribunal with temporary arbitration rules.
CARELESS SELECTION OF MEMBERS
Authoritative international judicial bodies all have strict procedures for selecting their members. For instance, judges of ITLOS are voted by a majority of UNCLOS signatory nations. Judges of the ICJ are voted at the U.N. Conference and the U.N. Security Council, and are elected by over half of the attending votes.
The ICJ consists of 15 judges from all continents, and ITLOS has as many as 21 judges.
Quite differently, the arbitrators at the South China Sea arbitral tribunal are appointed, and, there are altogether five of them. It only needs three out of the five arbitrators to give an arbitral award.
What's more, on an important issue like the South China Sea dispute, not only does the tribunal have no arbitrators from Asia, but also the arbitrators lack professional knowledge on the complicated background information on the South China Sea area, making it impossible for them to give objective and independent ruling.
"The representation of the tribunal's members is seriously lacking, causing suspicion to the tribunal's justice," said Kong Lingjie, deputy director at Wuhan University's China Institute of Boundary and Ocean Studies.
