A Hong Kong legal organization has queried the jurisdiction of the Permanent Court of Arbitration (PCA) in The Hague to deal with an arbitration initiated unilaterally by the Philippines against China over the South China Sea disputes, citing the factual and legal errors of the case.
Daniel R. Fung, chairman of the Hong Kong-based Asia Pacific Institute of International Law (APIIL), told Xinhua on Thursday that such an arbitration involving sovereignty issues should not be handled by PCA under the framework of the United Nations Convention on the Law of the Sea (UNCLOS).
On June 6, 2016, the APIIL submitted an amicus curiae (friend of the court) brief on the arbitration initiated by the Philippines to the tribunal. The brief was endorsed by several solicitors and legal experts from China's Hong Kong, Britain and Australia.
Citing a lot of international cases, the legal document addresses two key issues: jurisdiction of PCA to determine the Philippines' 15 submissions of the arbitration and justiciability of the issues raised in the submissions.
Fung, a renowned senior counsel in China's Hong Kong, said in an interview with Xinhua on Thursday that PCA has obviously overlooked the two issues.
Fung said the South China Sea disputes should be handled through diplomatic and political negotiations rather than an arbitration, especially they should not be handled under the UNCLOS.
"As friend of the court, our motivation to intervene is to maintain the perfection of the International Law system and the perfection of the arbitration tribunal which is one of the instruments of the system," Fung said.
"We are unwilling to see the international law system being jeopardized or its reputation being damaged," he said.
According to Fung, PCA has the responsibility to respond to the amicus curiae brief and the APIIL has requested an oral argument at PCA. However, PCA has not responded to the brief.
The Philippines unilaterally initiated arbitration proceedings to the Hague-based PCA against China over the South China Sea disputes in 2013. PCA ruled in 2015 that it has the jurisdiction over the case, taking up seven of the 15 submissions made by Manila.
The Chinese government has reiterated its non-acceptance and non-participation stance in the case.
The Chinese Ministry of Foreign Affairs said in its statement issued on June 8 that China has all along stood for peacefully settling territorial and maritime delimitation disputes through negotiations with states directly concerned on the basis of respecting historical facts and in accordance with the International law.
On issues concerning territorial sovereignty and maritime delimitation, China never accepts any recourse to third party settlement, or any means of dispute settlement that is imposed on it, the statement said.
An amicus curiae (literally, friend of the court) is someone as a third party to a case and offers information that bears on the case but who has not been solicited by any of the parties to assist a court. This may take the form of legal opinion or testimony and is a way to introduce concerns ensuring that the possibly broad legal effects of a court decision will not depend solely on the parties directly involved in the case.
