International law

“The arbitration decision is counterproductive”

The arbitration award in the case of the Philippines against China has the world experienced large media attention. Some of the Details and consequences of the judgment of the experts in international law Stefan Talmon illuminated in an Interview with DW.

Deutsche Welle: The arbitration award by the arbitration court in The Hague is a win-win for the Philippines was, is it?

Stefan Talmon: Yes, a victory all along the line.

You were surprised by?

A piece of far. I had expected a more balanced arbitration. Of the 15 applications for the Philippines in the end, 14 were chosen for the Philippines, and in quite clear words, what not to expect from international courts.

What were you particularly surprised?

Of course, I understand as a lawyer the rationale of the arbitral Tribunal, but as so often in the law, there are several reasonable views. I see, for example, the very restrictive interpretation of the island concept is a critical. For the first Time, has positioned itself to be a court and a very important provision of the law of the sea Convention are interpreted. The court of arbitration has declared that there is in the southern part of the South China sea, not a single island.

Were rejected automatically claims of Vietnam and Malaysia, the control also parts of the Spratlys?

Yes, but the benefit Vietnam or the Philippines ultimately. Because both countries are neighbours and benefit from it, if there are no Islands. You can then claim directly from your mainland from the 200 nautical miles into the sea “Exclusive economic zone”, and without that, the claim by any of the Islands, whose sovereignty is still disputed, but can be pruned.

Only Islands entitle the holder to claim an Exclusive economic zone and a continental shelf. An island must allow for the law of the sea independent living Convention

The restrictive interpretation of the island concept by the court of arbitration is final?

International law does not work that way. For this particular case, a court of arbitration has now been formed. There are, however, formed again and again, courts of arbitration, and these are not themselves bound by the case law of other courts of arbitration. This can lead to a second arbitral Tribunal interprets differently a similar question. In other words, you could take this dish to the island concept a bit further.

What that would mean for the first decision?

The decisions would only stand on equal footing.

Even if they are contradictory?

Yes, even if they are contradictory. There is in international law not the same way as in national law, no instance, unifies the case law. It’s a Federal court or the Federal constitutional court is missing, so to speak. It is then in a kind of competition, the decisions on which opinion prevails.

To what extent can this arbitral award in the “contest of opinions” do something?

The big Problem of international law is that there are no enforcement mechanisms. Ultimately, the arbitration will serve the parties as an Argument in the political debate. The law can thus be, to some extent, instrumentalized as a political weapon. How sharp this sword is, depends on the quality of the award and how this in the scientific and international community.

No one has studied the 500 pages of the arbitration award already in detail. What we currently hear and all emotional are so quick shots. Legal departments of many States to examine the arbitral award in the next few weeks and months very carefully. Only then they will consider how they position themselves. It must not be forgotten: The narrow island of Definition of arbitration court of course has a General impact on the South China sea. If the opinion of the arbitral Tribunal, will be affected not only China but also the United States, Canada, France, the United Kingdom, Japan, and the other, the maritime zones due to the Islands claim. After reading of the arbitration court, but would, under certain circumstances, no Islands more, which would justify, therefore, not exclusive economic zones. The worldwide could lead to a reorganization of the oceans.

Contributes to the process from their point of view, rather to a strengthening or a weakening of international Law?

Basically, it is to be welcomed, of course, when disputes between States do not forcibly, but in the court hall held. Now we have here of course a special situation. A state has been questioned from the outset, the jurisdiction of the court. We also have a Situation in which neutral observers the impression that the law and the court of arbitration have been exploited by the Philippines in a political process. What may merge with the following implementation of the arbitration decision, ultimately, of international law in the medium term, the bigger the damage. This also contributes, that the arbitral Tribunal has not negotiated the real question, in my view.

To what extent?

China, Vietnam and the Philippines consider these island groups outside of the court as a Whole and claim it as a Whole. Only within the courtroom, the Philippines have said that it goes to us cases, only a series of individual. The question that must be asked: Is it in the South China sea due to the practice of all States bordering a regional customary international law, the territorial sovereignty for the island groups provides? Then it was a matter of the individual Islands, rocks and reefs, but of the entire Structure, the Spratlys Islands. Although this view was rejected during the deliberations on the law of the sea Convention. Only island States such as the Philippines should have the right to be able to count on the so-called internal waters of their territory. That’s not an answer to the question of whether this concept may not have survived in a regional customary international law. Because, although China, Vietnam and the Philippines are parties to the law of the sea Convention, you have been through all the negotiations and also afterwards, always of their opinion, that the island groups as groups. We have here an unsettled question of international Law: What is an oceanic archipelago, which forms no own enable real-time island state? This question was addressed in the proceedings at all never, because the arbitration court is not allowed to comment on this. But the question is more in the room. Therefore, this whole procedure appears to be somewhat artificial.

The archipelago countries such as the Philippines can draw your Islands in a line and the enclosed waters to the archipelago waters to explain. Do not ask this question in the case of archipelagos, which are not States is regulated.

The States bordering with the arbitration of a solution to the conflict a step closer?

No. In any case. I think that the arbitration is in terms of the solution of the conflict, at least in the medium term, counterproductive. China has rejected the proceedings, from the beginning, and politically bound. The Philippines should be on the arbitration award called, the automatically to a counter-reaction to China’s lead, that, Yes, everything to do with the arbitration award, reject it.

The Philippines have won, but now you have to jump over your shadow, the judgment, more or less, so it can be placed, and try to find a new common ground with China. But this is not likely to happen. The arbitration award will continue to be exploited. The Genie is out of the bottle. The Philippines fought the judgment, but now they have lost control of the judgment. The United States will use the judgment, as well as Vietnam, and others. Whenever you want to China on the spot, they will point to this ruling and do not say, China is quite true, China is not a good citizen of the world community. This judgment will follow China in the next few years.

Stefan Talmon is a Professor at the Institute for international law of the Rheinische Friedrich-Wilhelms-University of Bonn.

The Interview was conducted by Rodion Ebbigahusen.