The tribunal is less than 12 hours from now. To give us an in-depth look into this event, we have here today Dr. Pham Lan Dung, Director General of Foreign Service Training Center under the Diplomatic Academy of Vietnam.
Many observers when they heard about the case they wondered how the Philippines could unilaterally filed a case against China to an international arbitration court as usually these kinds of cases require participation of both sides. However, China stated that it does not accept the jurisdiction of the arbitral tribunal. What mechanism of international laws allows this to happen?
- UNCLOS provides for a compulsory dispute settlement system in accordance with which a party may unilaterally bring a case before a judicial body. UNCLOS, however, allows parties to exclude from compulsory jurisdiction, certain categories of disputes related to maritime delimitation, sovereignty, historic base, historic title, etc. The crucial point here is if there is a dispute over the tribunal jurisdiction, it is the tribunal itself that has the final power to give the decision on the question.
In the case between the Philippines and China, the arbitration examined carefully the question of jurisdiction and decided that it has jurisdiction on certain issues of the case such as the status of features, whether the feature has the status of island, rock or only low-tide elevation. The arbitration may also file its jurisdiction on the question of illegality of the U-shape line under UNCLOS. If the U-shape line is found to be illegal, there would similarly reduce the area of overlapping, especially those from the excessive claim of China.
How will the Award of the Tribunal be enforced after given on July 12th?
- In accordance with UNCLOS, the award is final and binding upon the parties. Since both China and the Philippines are members to UNCLOS, they are under the obligation to fulfill the provisions of the convention. Therefore, they are under the obligation to comply with the award. The enforcement of the award relies on the general principle of international laws, the goodwill of the party to fulfill the obligation. It also relies on the so-called public opinions from countries, international organizations and other entities under the form of blaming and shaming.
There is no specific mechanism to enforce arbitration award however, parties to UNCLOS and other countries may have the rights to enforce the Award themselves. Countries may choose diplomatic means or economic, political means and other means provided that they are in accordance with international laws. A country may deny the award of a tribunal and may not participate in the case however once the award is delivered it is final and binding, non-compliance is an act of violation of international law.
Thank you for your time.
