Patrol vessel Haixun-21 arrives in Yongxing Island of Sansha City on the SouthChina Sea, south China, April 22, 2015. (Xinhua/Guo Qiuda)
by Xinhua Writer Liu Fang
THE HAGUE, July 7 (Xinhua) -- A dozen of Chinese young scholars of international law in the Netherlands are preparing to launch an open letter to contest the erroneous exercise of jurisdiction and abuse of legal process in the South China Sea (SCS) arbitration unilaterally initiated by the Philippines.
The open letter also highlights the significance of state consent as the very foundation of international judicial and arbitral organs and call for attention to the dangerous tendency towards the judicial and arbitral expansion in the field of the Law of the Sea, the drafters of the letter told Xinhua.
Peng Qinxuan, 29, Ph.D candidate of international law at Utrecht University, said the idea of writing an open letter hit her like a "natural reflex" to a "bizarre" case.
"A decade-long study on international law and international relations leaves its mark on me. I have always put faith in the international justice by international law. And I am always interested in examining international judicial and arbitral cases," said Peng.
Peng and her colleagues closely followed the highly controversial SCS arbitration case during the past months.
"Many of us share the analysis that no matter how smart the Philippines' disguise is, the real issue in this case is barely about territorial sovereignty and maritime delimitation. The UNCLOS does not deal with territory issues and China has excluded delimitation disputes from compulsory settlement procedures. Evidently the tribunal has no jurisdiction over this case," said the Ph.D candidate.
As the arbitration proceeds despite worldwide questioning, Peng felt an urgency to take action.
"How could such a bizarre case openly violating UNCLOS provisions keep advancing in The Hague, the capital of international law? How can we stay silent in face of such a lawfare which carries ulterior motives? The eyes of the arbitrators are blindfolded with the leaves of the Philippine claims, and they cannot see the mountain behind the leaves. But we lawyers of international law have the duty to pierce the veil," she said.
Peng, who is also head of an association of Chinese students and scholars in the Netherlands, was not alone in her drive.
Among 8,000-more Chinese students studying in the Netherlands, over 100 are scattered in faculties of law across the country. A dozen of them, specialized on international law and the Law of the Sea, set up a research group for the drafting of the open letter.
Xu Qi, a 26-year-old Ph.D candidate on the Law of the Sea at Groningen University, volunteered to contribute with his academic knowledge.
"After many rounds of discussions we decided to present our own analysis of problems of the tribunal's jurisdiction ruling based on the provisions of the UNCLOS and also on the historical facts," he told Xinhua.
Three months of brain-storming produced a 2,500-word document so far.
The young scholars tried to build their case on four aspects: state consent as the basis of compulsory arbitration; territorial disputes and maritime delimitation as real disputes of the SCS case; abuse of legal process and ultra vires acts in the SCS arbitration; the SCS arbitral awards being neither binding nor helpful.
"I wish to draw particular attention to the detrimental impact caused by the SCS arbitration to the inherent balance of the compulsory settlement procedures under the UNCLOS. The tribunal should have been more cautious when ruling on jurisdiction," Xu said.
"When doing research for this open letter, we noticed that a growing number of non-Chinese experts and scholars expressed their concerns over the tribunal's jurisdiction ruling, especially in relation to the real issue of the Philippines' claims. This is both inspiring and encouraging," he said.
"In the open letter we make it clear that China has a correct understanding of the UNCLOS compulsory procedures. China does not accept these procedures being abused for political purposes. By upholding state consent as the basis of compulsory arbitration, China made a right move to defend this fundamental principle of international rule of law. In the long run, more States will see the value of these efforts," added Xu.
Zhang Tong, 24, the youngest of the team, told Xinhua that the faith in the international law led her to join the open letter.
"Compared to the richly experienced arbitrators of the tribunal, I am only a beginner. But I have to say that the jurisdiction ruling is not convincing enough for me. I was particularly surprised by the circular arguments they exercised to substantively exclude the application of China's declaration about the compulsory jurisdiction under article 298," said Zhang.
The Leiden master student on international law believed that in the positivist tradition, compulsory arbitration and other compulsory procedures under the Convention, as agreed upon by more than 160 countries through nine-years' negotiation, are strictly consent-based in substance.
"Within the scope of such consents, an organ is legitimate; stepping beyond, the legitimacy will be highly arguable," said Zhang.
The State-consent principle maintains the balance of interests of all States in a subtle and sustainable way, which helps to maximize the common interests among States, Zhang argued.
"The life of international law comes from and should also serve for the common interests of the international community, which makes the principle of state consent indispensable. But the SCS tribunal seemingly prefers to expand its jurisdiction rather than protect the legitimate interests of the contracting State," said Zhang.
"The Tribunal is probably undercutting the States' already fragile trust towards international judicial and arbitral organs. It might seriously weaken the authority of itself and even of the international judicial bodies as a whole. I started to believe in international justice since high school when I participated and enjoyed Model United Nations activities. What the SCS tribunal did is really disappointing and hurting," she added.
As law students busied themselves with drafting the letter, Wang Zhili, Utrecht University master student in Public International Laws and Finance who has been studying in the Netherlands for more than six years, took up the outreach task of their action.
Together with Peng, they opened social media accounts on Wechat, Facebook, LinkedIn, Twitter for this purpose and mobilized their friends and classmates to circulate the draft document and collect reactions.
"Most of reports in western media on the SCS arbitration follow the track of their old-style cliches and prejudices against China. You can hardly find any balanced and in-depth article here. I was really shocked by the ignorance of China's arguments when discussing this case with professors and fellow students. That's why we write our open letter in English, Dutch and Chinese. We will spread it far and wide to gather as much support as possible," Wang told Xinhua.
"We do believe that the voice of the truth must be heard," said Peng, the enthusiastic student leader, "One open letter criticizing one single case cannot drive out the shroud of darkness enveloping the world of the international law. Light a candle, you only get a dim light. Pass the candle on, the shadow has nowhere to hide."