The "award" rendered by the Arbitral Tribunal in the South China Sea arbitration does not help facilitate the settlement, while it is more like "pouring fuel on the flame", Xue Hanqin, Judge of the International Court of Justice (ICJ) said here on Friday.
Addressing a colloquium focusing on international law and maritime disputes settlement, Xue said the ultimate objective for arbitration mechanism is to settle dispute rather than to escalate it.
"However, anyone can easily tell this award will certainly aggregate the dispute between China and the Philippines, aggregate the current military tension between China and the United States and definitely aggregate tension in the region," she said, warning an arbitral tribunal should not "play such a dangerous game".
Xue said any jurisdiction should be made on a coessential base, while China was "dragged" into the compulsory arbitration procedure even if it has already made the optional exceptions declaration pursuant to Article 298 of the United Nations Convention on the Law of the Sea.
"If this is set as an example, very likely we will see a serious abuse of using the law against many states that have made the same declaration," Xue said, adding that the case provides a good opportunity for law experts to reflect the current practice of international arbitration.
She also said the tribunal should not rely purely on one party's facts and make the ruling, citing despite China's strong objection on the jurisdiction of the tribunal, it still acted in good face by issuing publicly its position.
"This is really regrettable that the tribunal did not give serious consideration to China's stance," Xue said.
Pemmaraju Sreenivasa Rao, a former chairman of International Law Commission, said the tribunal failed to recognize that issues of interpretation and application in this case are integrally linked to the issues of sovereignty and maritime delimitation, hence made the decision much less persuasive.
As a pragmatic matter, the Philippines at the end of the day would in any case have to return to the negotiating table to settle its dispute with China and achieve a mutually acceptable solution, he said.
