Takungpao and Weiweipo of Hong Kong:

Some have said that according to Item 4 of Article 288 of UNCLOS, the arbitral tribunal can decide whether it has jurisdiction on the arbitration case, while China believes that the arbitral tribunal is not entitled to do so in the disputes between China and the Philippines. What is your take on this? Thank you.

Liu Zhenmin:

Some have indeed said that, including some judges on the arbitral tribunal, but this is an example of abuse of UNCLOS and power by the tribunal. Why is that? The disputes settlement procedure stipulated in Part XV of UNCLOS is an integral system and should not be read as a separate part. First, the arbitral tribunal should be aware that disputes of territorial sovereignty do not fall within UNCLOS, but are subject to traditional international law. Second, according to Article 298 of UNCLOS, countries are entitled to exclude maritime delimitation from compulsory procedures, and China has done so. If someone wants to exploit the compulsory procedures, the case should be heard under the relevant articles of UNCLOS. Article 280 and 281 should be taken into account, which means that we should first and foremost see whether the involved countries have reached agreements on resolving the disputes. China and the Philippines have already had a number of statements and agreements which require us to solve disputes through negotiation. The arbitral tribunal has not taken these agreements into account and has not applied Article 280 and 281 properly.

Unfortunately the arbitral tribunal has not figured that out. The tribunal has missed facts and due procedures while insisting on arbitration based on Item 4 of Article 288. This is a complete abuse of the legal procedure and UNCLOS and a dismissal of China's rights. The arbitral tribunal has not followed the due procedures required by UNCLOS, therefore the tribunal lacks credibility. It is not reasonable to say you have the right to do something when the laws have stipulated both the rights and duties. Rights and obligations are unified and should be exercised in accordance with each other. The arbitral tribunal wanted to perform its right without fulfilling its obligations when exercising the so-called jurisdiction.

Guo Weimin:

Recently we talked to some experts in international maritime law, who expressed the same opinions. You've definitely read media reports where people, including senior maritime law experts in The Hague, argue that the tribunal has set a bad precedent in arbitration which it did not have the right to undertake in the first place. You can read about these reports. Now the next question.