South China Sea arbitration: judicial expansion detrimental to settlement of disputes, says Chinese diplomat

The diplomat noted that States shall be alert about the ad hoc organ's performance, which is a typical example of arbitral expansion.

"According to the Convention, States have the right to exclude compulsory procedures with respect to delimitation disputes," he said.

"The five arbitrators understand delimitation in a very narrow way, thus restraint such right of States. Also, the tribunal restrictively interprets the agreement between China and the Philippines to exclude UNCLOS procedures, and degrades the role of negotiation and exchange of views. By degrading the right and role of States, the tribunal acts beyond its mandate," he said.

"The arbitral expansion cannot help settle the real disputes because an ultra vires award is null and void. What's worse, the arbitration is inconsistent with procedural justice," he said.

"We should never forget that States play a primary role in international justice and relevant judicial or arbitral organs are based on State consent as reflected in the UNCLOS. When an arbitration exceeds State consent, it breaks the balance inherent in the Convention," he stressed.

To avoid the harms of judicial/arbitral expansion, Gou suggested that States shall rebuild trust toward good faith negotiation, and provide necessary procedural guidance to judicial and arbitral organs, and the latter shall be self-restraint in keep the limits of State consent.

Citing the "Judgment of Solomon" story, the Chinese diplomat emphasized that more wisdom is needed to safeguard the balance and integrity of the UNCLOS.

"When King Solomon ordered to split a baby and give each claiming 'mother' a half, we realize that the real mother will not let her baby hurt. Similarly, real owner of maritime features will not attempt to reduce the capacity of its features. With the arbitration, the Philippines endeavors to reduce the capacity of maritime features in the South China Sea, which tells that it is not the owner of these features," he explained.

In addition, "in the Solomon Judgement story, the false mother insisted on proceedings to divide the baby. Thus we know that the party insisting on proceedings may not always be the one with truth. Therefore, we should refrain from an easy conclusion that he who undertakes an arbitration is always the one who is right."

China has said repeatedly that the right path forward regarding the disputes in the SCS is consultations and negotiations between directly concerned parties.