China has a sitting judge in ITLOS, who wrote legal article on 9-dash line - veteran China watcher

From InterAksyon (Apr 21): China has a sitting judge in ITLOS, who wrote legal article on 9-dash line - veteran China watcher



A Chinese legal scholar, who wrote an article about the 9-dash line published by the American Journal of International Law (AJIL), is a sitting judge in the International Tribunal on the Law of the Sea (ITLOS) where the Philippines has filed a complaint against China’s “excessive claim” in the South China Sea.

Chito Sta. Romana, the former Beijing bureau chief of ABC News, and an Emmy award-winning journalist who lived in China for 39 years, noted this at the Tapatan media forum at Aristocrat Restaurant in Manila on Monday.

Sta. Romana said that Professor Zhiguo Gao is a sitting judge in ITLOS but not a member of an ad-hoc tribunal created to hear the Philippine memorial against China, who wrote a legal article about the 9-dash line which could be used to “understand” China’s position in its maritime row with the Philippines. Manila has said with the 9-dash line, Beijing is practically claiming the entire South China Sea, including Philippine territory.

“(T)he judge is not a member of the (ad-hoc) tribunal; but he is a member (judge) of ITLOS who wrote an article in American Journal in International Law last year explaining the legal basis and history of 9-dash line,” Sta. Romana said.

Aside from Professor Gao, China has a legal adviser, Stefan Colman of the University of Bonne, “who came out with a book, together with the Chinese legal scholars, seen as a legal brief against the Philippine memorial filed before ITLOS,” Sta. Romana said.

Understanding 9-dash line

Since China is not participating in the arbitration and is not explaining its position against the Philippine memorial submitted last March 30, the 5-man ad hoc tribunal will rely on the legal articles written by international legal luminaries such as Gao and Colman, “to understand the 9-dash line used by Beijing in claiming the disputed island,” Sta Romana said.

“The Chinese are not participating in the arbitration but the judges in the tribunal will have to satisfy themselves to understand the basis of the Philippine case to declare the 9-dash line illegal. They have to understand the 9-dash line, so they will rely on the Chinese public statements and the works of legal scholars including the works of this Chinese judge that wrote this article,” Sta. Romana said.

He hinted that the decision of the tribunal may be influenced by legal articles written by Gao and Colman even if there are no Chinese members in the ad hoc arbitration committee.

“The tribunal is made up of five judges, none of them are Chinese or designated by the Chinese, but they (Gao, Colman, and arbitrators) are associates, they fraternize each other, they know each other in the international law community,” he explained.

China’s legal brief

The essay written by Colman is a 280-page anthology of essays which could be used by ITLOS arbitrators as a reference book since it cannot get the official Chinese position on the maritime row.

“It is an anthology of essays . . . like their legal brief answering the Philippine case. And again this would be a reference book for the judges, the arbitrators because if they cannot get the Chinese position, they are still obliged to understand the Chinese position,” Sta. Romana said.

Also, Professor Gao’s article concludes  that the 9-dash line is a claim to the islands, the reefs, and the insular, the land, the adjacent water, the 12-mile, the entitlement under UNCLOS and the 200-mile Exclusive Economic Zone (EEC), Sta, Romana explained.

“It is not a claim to all the waters, that is what he is saying, that is not a territorial claim to the waters that is an important position,” he said.

“But, it is not the official position of the Chinese government; the Chinese government position is still vague, they have not explicitly said the meaning of 9-dash line although we know the 9-dash line has no coordinates,” he added.

Only time will tell if the Chinese government adopts the Chinese judge’s position, because the Chinese judge position is a moderate position.

“The Philippine case hinges on the interpretation that the 9-dash line is a territorial and maritime border claim; in other words, if you go into this, it is already Chinese territory,” Sta. Romana said.

China has no explicit position

Although the Chinese government has not explicitly stated their position, the naval and maritime units of China are behaving as if they are claiming the waters, Sta. Romana said.

“So, the point here is that you have one interpretation of this Chinese ITLOS judge, but the Chinese government has not yet officially adopted this position. The Chinese government is now being forced to explain it and whether it is going to adopt this moderate article, or whether declare coordinates and declare a hardline position remains to be seen,” he said.

Nonetheless, Sta. Romana said whether the Gao and Colman articles are written or not, the Chinese government is conducting a legal warfare trying to win the case legally too,  “and they will try to influence the outcome of it in whatever way possible. What that would be, time will tell.”

Sta Romana believes the Chinese are trying to make their case in the international legal community by allowing Gao and Colman to outline their legal case against the Philippines.
“The Chinese government will not take this case sitting down because they are accusing the Philippines rightly or wrongly, of using this case to claim position of island that Chinese think are theirs,” he said.

“Definitely, they are trying to show that the tribunal has no jurisdiction or even the Tribunal will accept the Philippine case is defective both in law and in fact. The Philippines though, I think will try fight out this case legally,” he added.

PH’s lookout

He said the Philippines side has already read the articles written by the two legal luminaries, but should still be aware of the arguments presented by the Chinese ITLOS judge and the German scholar in their legal articles, “and if they can meet head-on this argument, we stand a stronger change of winning our case because that is the only way.”

Basically, the legal documents written by Gao and Cullman outline Chinese position and what the arbitrators are confronted with. “So, it is incumbent upon us to be able to, not only to meet them head on but defeat the argument with the best legal arguments,” he said.

“So, expect China to do everything they can to influence the outcome of the arbitration. Although they are not participating inside the Court, they are engaged in a legal warfare outside the Court,” he added.

http://www.interaksyon.com/article/85184/china-has-a-sitting-judge-in-itlos-who-wrote-legal-article-on-9-dash-line---veteran-china-watcher