South China Sea Arbitration Hurts China And International Rule Of Law
By Niu Qingbao, Chinese ambassador to Jamaica
2016/06/01
 

At the other side of the Earth, south to the Chinese mainland, lies the beautiful South China Sea - a sea that shines the same kind of turquoise blue of the Caribbean Sea - the same blue that kills any blues. It is regrettable, however, that in recent years, the waters of this once peaceful sea have been purposefully disturbed by a few coastal countries, causing serious concerns about peace and stability in the region.

On January 23, 2013, the Philippines unilaterally initiated a compulsory arbitration with respect to its territorial and maritime disputes with China in the South China Sea. In November 2015, the arbitral tribunal held oral hearings on substantive issues. It is reported that a final award is likely to be rendered in the near future.

From a legal perspective, this arbitration is clearly null and void. It violates the agreement between the Philippines and China enshrined in bilateral and multilateral documents on resolving disputes in the South China Sea through negotiations and consultations. It also violates the letter and spirit of the United Nations Convention on the Law of the Sea (UNCLOS), abuses dispute settlement procedures provided therewith, and infringes upon China's right under UNCLOS to independently choose dispute-settlement mechanisms and procedures.

It is for these reasons that China has been upholding consistent and clear-cut positions against this arbitration, namely, no acceptance, no participation, no recognition and no implementation. Although criticised by several western politicians, China's position, based on solid grounds of facts and laws, stands firm and strong.

The crux of the matter in the arbitration unilaterally initiated by the Philippines is the territorial disputes between China and the Philippines in the South China Sea. And it is the Philippines' unlawful territorial expansion, its invasion and illegal occupation of some of the islands and reefs of China's Nansha Islands, to be more precise, that led to such disputes.

The islands in the South China Sea, including the Nansha Islands, have been China's territory since ancient times. The Chinese people were the first to discover, name, and develop these islands. Successive Chinese governments have exercised jurisdiction over these islands in a peaceful and effective manner without interruption through such means as administrative management, military patrol, production and business operation, and marine salvage. During World War II, Japan invaded and illegally occupied Nansha Islands after it launched the aggression war against the mainland of China. When the war ended, Japan returned the Chinese territories it had stolen from China in accordance with the Cairo Declaration and the Potsdam Proclamation. China recovered Nansha Islands, reaffirmed its sovereignty and reinforced its jurisdiction over them by many means.

In the several decades that followed, it was widely recognised by the international community that the Nansha Islands belong to China, and not a single country ever challenged it.

 

TERRITORY LIMITS

 

The limits of the inherent Philippine territory were clearly set forth by three international treaties, namely, the 1898 Treaty of Paris between the United States and Spain, the 1900 Treaty of Washington between Spain and the United States and the 1930 Convention Between the United States and UK Delimiting the Boundary Between the Philippine Archipelago and the State of North Borneo.

These treaties have clearly defined that 118° longitude east is the western limit of Philippine territory. China's Nansha Islands and Huangyan Island are well beyond the scope of Philippine territory defined in the above treaties. The Philippine Constitution and laws, including the Constitution of the Republic of the Philippines in 1935, the Act to Define the Baselines of the Territorial Sea of the Philippines (Revised) in 1968, and the treaty on US-Philippine normal relations signed in 1947 all reaffirmed the scope of the Philippine territory laid down in the above treaties.

However, since the early 1970s, in violation of these treaties, the Philippines started to push for expansionism beyond its inherent territory and hence invaded and illegally occupied 8 maritime features of China's Nansha Islands. In June 1978, the Philippines issued the Presidential Decree 1596, unlawfully designated a so-called 'Kalayaan Island Group' to encompass some of the maritime features of China's Nansha Islands and claimed sovereignty over them.

In 2009, the Philippines further revised its domestic law on territorial sea baselines, blatantly listing parts of China's Nansha Islands and Huangyan Island into its own territory in an attempt to make its illegal occupation permanent and legalised.

To deny China's territorial sovereignty as well as maritime rights and interests, the Philippines took irresponsible unilateral acts and moves aimed at stirring up trouble, such as illegal construction, oil and gas exploration, and detention of Chinese fishermen, to escalate tensions and aggravate the disputes.

The Philippines also attempted to further invade and occupy more maritime features of China's Nansha Islands by bombing the signs of Chinese sovereignty and "running aground" a worn-out naval ship at Ren'ai Jiao, Nansha Islands. By the way, Ren'ai Jiao lies 9°44' latitude north and 115°52' longitude east and west of Philippines' western limit.

On April 10, 2012, the Philippine Navy launched a surprise raid on 12 Chinese fishing vessels working in the Huangyan Island waters, made a provocative arrest of Chinese fishermen and treated them inhumanely. Such a provocation forced China to take countermeasures and both sides engaged in a tense stand-off.

This deliberately triggered event was later known as the 'Huangyan Island Incident' and was used by the Philippines in its rhetoric for starting the arbitration farce.

Shortly after the Philippines' unilateral initiation of the arbitration, China officially made it clear that "China does not accept the arbitration" and "will not participate in the proceedings". The Philippines and a handful of other countries accuse China of undermining international rule of law. To the contrary, this arbitration is an attempt to cover up unlawful encroachment on Chinese territories and trample upon international legal order. China is doing nothing other than defending her legitimate rights and the international rule of law.

First, China tries to uphold the sanctity and integrity of UNCLOS. Compulsory arbitration, which is an innovative procedure for peaceful dispute settlement established by UNCLOS, can only be applied to settle disputes concerning the interpretation and application of UNCLOS. In accordance with Article 298 of UNCLOS, a State Party may also declare in writing to exclude certain disputes from such compulsory arbitration proceedings. China's declaration on optional exceptions made in 2006 has excluded disputes concerning maritime delimitation, historical bays or titles, as well as military and law-enforcement activities from such dispute-settlement procedures provided for in UNCLOS, including the compulsory arbitral proceedings, let alone that UNCLOS itself does not apply to territorial disputes at all. As the subject matter of the arbitration concerns territorial sovereignty, maritime delimitation, historical rights and entitlement, China is exempt from the arbitration. By the way, China is not alone in making the above declaration on optional exceptions. Twenty eight other countries have made similar declarations. All these declarations form an integral part of UNCLOS.

Second, China and the Philippines have already committed to dispute resolution through bilateral negotiations.

Paragraph 4 of the Declaration on the Conduct of Parties in the South China Sea (DOC) jointly signed by China and all member states of Association of Southeast Asian Nations (ASEAN), including the Philippines, in 2002, also clearly stipulated that "the parties concerned undertake to resolve their territorial and jurisdictional disputes by peaceful means, through friendly consultations and negotiations by sovereign states directly concerned".

 

NEGOTIATION

 

On that basis, the two sides have chosen negotiation as the means to resolve relevant disputes and excluded third-party settlement, including arbitration. By unilaterally initiating the arbitration, the Philippines has gone back on its solemn commitment and violated a fundamental and core norm in international law - pacta sunt servanda ('agreements must be kept').

Third, China is entitled to independently choose methods of dispute settlement under UNCLOS.

Article 280 of UNCLOS stipulates that nothing impairs the right of any State parties to agree at any time to settle a dispute between them concerning the interpretation or application of UNCLOS by any peaceful means of their own choice. Article 281 further stipulates that dispute-settlement procedures established by UNCLOS apply only where no settlement has been reached by recourse to peaceful means chosen by the parties, and "the agreement between the parties does not exclude any further procedure". Given that China and the Philippines have made the choice and agreed to settle their disputes through negotiations, the Philippines is precluded from initiating arbitration unilaterally, which is a clear violation of China's right to seeking dispute settlement of its own choice.

Fourth, national consent is the very core and soul of international law.

 

EXCHANGE OF VIEWS

 

Accordingly, arbitration should be jointly initiated by parties out of their consent. In the same spirit, Article 283 of UNCLOS obliges parties to a dispute to first exchange views on the means of dispute settlement.

However, ever since the Huangyan Island Incident, the Philippines refused to have any serious dialogue with China. The sudden initiation of the arbitration by the Philippines without notifying China beforehand, let alone seeking China's consent, failed to fulfil the Philippines' obligation of exchanging views with China on the means of dispute settlement.

The Philippines is using the UNCLOS, which was first signed in 1982, to negate China's historical rights in the South China Sea that have lasted more than 2000 years. The UNCLOS has no jurisdiction over territorial disputes, which fall under traditional international laws. The arbitral tribunal failed to comply with the above-mentioned applicable international law and its existence itself is illegal. The Philippines claims that its appeals are not about territory or maritime delimitation, but these appeals are based on denying China its territorial rights and are hidden attempts at delimitation. The Philippines' unilateral initiation of arbitration is nothing but sabotage against the international rule of law and encroachment upon China's rights and interests, all under the cloak of international law.

By neither accepting nor participating in the arbitration, China is actually complying with its international obligation under the UNCLOS, opposing the abuse of compulsory dispute settlement procedures of the UNCLOS, and upholding the solemnity and authority of international law including the UNCLOS.

Stories have been made about China's construction activities on some islands and reefs of the Nansha Islands, accusing China's construction activities of affecting freedom of navigation and overflight, bringing damage to the coral reefs and marine ecological system, and breaching the DOC, etc.

These accusations are, however, neither true nor fair.

First, China's construction activities on some maritime features of the Nansha Islands fall within the scope of its sovereignty. It is lawful, reasonable and justifiable for China to conduct construction activities on its own islands and reefs, which is no more than exercising the lawful rights that international law grants to a sovereign state. Such construction activities are not targeting at any country, and do not affect in any way freedom of navigation and overflight in the South China Sea enjoyed by all countries in accordance with international law.

Second, as the owner of the Nansha Islands, China cares about protecting the ecological environment of relevant islands, reefs and waters more than other countries.

Committed to an ecological environment preservation notion of "green project, green islands and reefs", and based on thorough studies and scientific proof, China adopts dynamic protection measures along the whole process so as to synchronise ecological environment preservation with construction activities, and realise sustainability of the relevant islands and reefs.

 

PROTECTION WILL BE ENHANCED

 

Once China's construction activities are completed, ecological environmental protection on the relevant islands and reefs will be notably enhanced and such action will stand the test of time.

Third, apart from meeting necessary and legitimate defence needs, such construction activities also satisfy all sorts of civilian needs. They improve the living and working conditions of the Chinese staff stationed there and better China's international responsibilities and obligations concerning maritime search and rescue, disaster prevention and mitigation, marine scientific research, meteorological observation, ecological environment preservation, navigation safety, fishery production and services, etc. Such construction activities are in keeping with international law and do not contravene the DOC.

Last, but not least, it needs to be pointed out that China is the last of the countries in the South China Sea to engage in construction. Since the 1970s, countries like the Philippines and Vietnam have illegally occupied numerous islands and reefs of China's Nansha Islands and then engaged in massive construction on these islands and reefs, which has seriously violated China's territorial sovereignty and basic norms of international law. Ironically, those who are accusing China of its lawful construction now were mute about the illegal construction of countries like the Philippines in the South China Sea for decades.

Although the arbitration unilaterally initiated by the Philippines has no legitimacy, and by no means it would settle the South China Sea disputes, there still could be a peaceful solution that is achieved in accordance with international law, satisfying to parties directly concerned, and better serving the interests of them and the whole region. China, as a responsible country as well as a staunch defender and builder of international rule of law, has made and continues to make great efforts to this end.

In order to uphold regional peace and stability, China has all along exercised great restraint, handled the South China Sea disputes in a responsible and constructive manner and committed itself to resolving the relevant disputes in a peaceful manner through negotiations and consultations, to seek win-win outcomes through joint development and cooperation, and to upholding freedom of navigation and overflight as well as peace and stability in the South China Sea.

China also supports and advocates the 'dual track' approach initiated by ASEAN member states to handle the South China Sea disputes, that is, while relevant disputes are to be resolved through negotiations between countries directly concerned on the basis of respecting historical facts and according to international law; China and ASEAN member states will work together to maintain peace and stability in the South China Sea. This approach complies with international law and relevant international practices, reflects the important understanding and solemn commitment of China and ASEAN member states in the DOC, and represents the most realistic and effective way to properly handle the South China Sea disputes at present.

Settling disputes over territorial sovereignty and maritime delimitation through negotiations is widely endorsed by the international community. Since issues such as territorial sovereignty and maritime rights concern a country's core interests, no sovereign states, if put in China's position, will accept the jurisdiction of third-party mechanisms that are not chosen by them voluntarily, not to mention accepting solutions imposed by such mechanisms. As a matter of fact, the settlement of maritime disputes through negotiations and consultations received overwhelming support at the 3rd United Nations Conference on the Law of the Sea which negotiated UNCLOS.

Even when it comes to today, China is nowhere near being alone on maintaining such positions. While the arbitration is getting attention worldwide, more and more countries have come to understand and support China's positions. A few days ago, China and 21 member countries of the Arab League jointly issued the Doha Declaration, stressing that the Arab states support a peaceful settlement of territorial and maritime disputes between China and relevant countries through friendly consultations and negotiations based on bilateral agreements and consensus among regional countries. It makes a special point in mentioning that the right of sovereign states, and signatory parties to UNCLOS, to settle disputes with an approach of their own choice, in accordance with the law, must be respected.

This is just an example of the many statements issued in support of China's positions. Among countries that have made similar statements since April are ASEAN member states such as Brunei, Cambodia and Laos; BRICS countries such as Russia and India; Asian countries such as Pakistan, Bangladesh, Kazakhstan, Kyrgyzstan and Kuwait; as well as countries from other relatively distant continents such as Venezuela, Gabon, Niger, Gambia, Burundi, Mozambique, Mauritania, Fiji, Belarus, Poland, Slovenia.

Up to now, well over 40 countries have openly sided with China on the arbitration issue. Their statements are in line with the international practice of resolving disputes through negotiations and consultations, respect the essence of the international rule of law, and mirror the fair and objective opinion the international community holds on the relevant issue. The moral? A just cause enjoys abundant support!

Jamaica is geographically far from the South China Sea, but in all our joint efforts in maintaining international rule of law and fighting against threats to peace, distance never prevents us from standing close. As far as UNCLOS is concerned, history remembers that it was the hospitality of Jamaican people that witnessed 119 countries signing UNCLOS at Montego Bay on December 10, 1982 - the largest number of signatures ever affixed to a treaty on its first-day opening for signature. Jamaica can take a leading role in preventing UNCLOS from being distorted and abused by the Philippines. After all, it is in the fundamental interests of the world as a whole to defend the wholeness and authority of UNCLOS.

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