Forum speakers: What they said

Judicial decisions, like any legal decisions, are not cast in stone - even if some lawyers want to make you believe that. While the decisions as such, in a formal sense, are final - they are not subject to appeal - the content of the decision is not final in the sense that is the last word on the matter.

There are numerous examples of pronouncements on the law by courts and tribunals that have not stood the test of time or are not generally accepted. Judicial pronouncement could be reversed by international legislation either by the conclusion of a treaty or by the creation and the development of customs of international law.

The pronouncement of the Arbitral Tribunal in the South China Sea arbitration must not be the final word on the questions raised by the dispute. It will have to be seen whether states, as well as international and domestic courts, follow its pronouncements on UNCLOS, or whether these pronouncements will be ephemeral rather than final.

Stefan Talmon, professor at the University of Bonn

The tribunal has said that this case is about the status of a certain number of features. It is not about sovereignty. It is not about maritime delimitation. The question about maritime delimitation and eventual maritime delimitation is unresolved.

The tribunal has said that it is only dealing with the status of various features. That means, to use the English expression, putting the cart before the horse. In other words, that's getting things the wrong way around.

What the tribunal has done has put the status cart before the sovereignty horse and I question how helpful that is in resolving issues in the South China Sea. It is important to say, as far as I can establish, there is no precedent for an international tribunal to decide on the status of the feature, when the sovereignty over that feature is disputed, and the tribunal has no power to decide on the sovereignty of that feature.

Chris Whomersley, former deputy of legal adviser at Britain's Foreign and Commonwealth Office

The tribunal has not dealt with many important points, which are very important. What can we do?

In a normal case, it would be important for the world community to design some kind of appellate system.

Of course, we perhaps can argue that any rulings are invalid and can be challenged, but where can we challenge? I argue that if the tribunal had a better composition, perhaps things may be different. Supposedly, if arbitrators from the Association of Southeast Asian Nations had joined the case, things could have been better understood.

Sienho Yee, professor at Wuhan University

 

The UNCLOS does not have any provisions that regulate the laws on how archipelagoes are to be dealt with. On that basis, the general principle of international law would apply and what state practice has been resorted to. Therefore something will have to be looked at perhaps a lot more carefully than just merely pronouncing that Nansha Islands are not a single unit.

The tribunal has actually redefined rock and island. We now no longer have Taiping Island, we have Taiping Rock, and somebody in the audience asked whether Singapore should now instead of being an island state may be a rock state as well. Maybe Hong Kong, as well, may be treated as a rock, one doesn't know.

Teresa Cheng, chairwoman of the Hong Kong International Arbitration Centre

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