(Editorial note: The ongoing disputes over the South China Sea are controversial, as is the arbitration initiated by the Philippines. The coming decision of the arbitration will lead to a new round of controversies and debates. IPP Review is a platform for all interested parties to express their opinions, and hence we welcome contributions which reflect these different viewpoints. This article reflects a perspective from China, and it should not be seen as representing IPP Review’s position.)
In January 2013, the Philippines unilaterally initiated the arbitration of its dispute with China over the South China Sea (SCS) under Part 15 and Annex 7 of UNCLOS and pushed it tenuously until today. China’s position of neither participating nor accepting the arbitration is consistent and clear-cut. In December 2014, China released its Position Paper on the matter of jurisdiction in the SCS arbitration initiated by the Philippines, explicitly elaborating on China’s grounds for rejecting the jurisdiction of the arbitral tribunal. In October 2015, China issued a statement on the award delivered by the tribunal on the matter of jurisdiction and admissibility, announcing that the award was null and void, and not binding on China. China’s position can be summarized as the 4 NOs: No Acceptance, No Participation, No Recognition and No Implementation.
China believes that its foregoing position is fully in accordance with international law, while the arbitration case is against it.
First, the crux of the subject matter of the arbitration is the territorial dispute caused by the Philippines’ illegal occupation since the 1970s of some islands and reefs in China’s Nansha Islands (Spratly Islands), maritime delimitation disputes, and the evolution of the contemporary law of the sea.
The issue of the territorial dispute is outside of the scope of UNCLOS. It is governed by the UN Charter and general international law. In this regard, the South China Sea Islands are Chinese territory with ample legal basis and historical evidence. Since the ancient times, successive Chinese governments have exercised jurisdiction over them through administration, military patrols, fishing and development, and so on. During the Second World War, Japan seized the Xisha Islands (Paracel Islands) and the Nansha Islands. When the war ended, Japan returned the Chinese territories it had occupied to China in accordance with the Cairo Declaration and the Potsdam Proclamation in the 1940s. China recovered the Nansha islands, pronounced its sovereignty, and reinforced jurisdiction through such measures as official renaming, publishing maps, setting up administrative units, and stationing troops. In the several decades that followed, it was widely recognized by the international community that the Nansha Islands belong to China, and not a single country ever raised objections.
The scope of Philippine territory was clearly limited by the treaties during the colonial period between the United States, Spain, and the United Kingdom which did not include any of China's maritime features in the South China Sea.
Since the 1970s, after the discovery of potential oil and gas reserves in the South China Sea, the Philippines pushed for expansionism beyond its inherent territorial limits by sending troops to occupy eight maritime features of China’s Nansha Islands and sought to permanently station them there and “legalize” the occupation through various means, such as the construction of military facilities, ports, and airports, administrative establishment, and the unlawful designation of the so-called “Kalayaan Island Group.” The Philippines also attempted to further invade and occupy more maritime features of China’s Nansha Islands by “running aground” an old naval ship at Ren’ai Jiao (Second Thomas Shoal) in 1999.
In April 2012, the Philippines sent a warship into the adjacent waters of China’s Huangyan Island (Scarborough Shoal), forcefully detained and harassed the Chinese fishermen and fishing boats conducting normal operations there, and deliberately triggered the “Huangyan Island incident.” After the incident, the Philippines decided to bring the bilateral disputes concerning the SCS to the compulsory settlement under UNCLOS.
The Philippines’ activities mentioned above have violated the UN Charter and general international law, and seriously encroached upon China’s territory sovereignty. The Chinese government has always been firmly opposed to these actions.
China’s declaration of the optional exclusion means it will not accept the compulsory mechanism of Part 15 of UNCLOS in dealing with the overlapping maritime claims or delimitation issues.
Looking back at history, it’s not hard to conclude that it is the Philippines’ illegal occupation and intrusion that led to these disputes. Even today’s unilaterally initiated arbitration is actually the continuation and development of the Philippines’ territorial expansionism through so-called legal means.
Furthermore, in terms of maritime delimitation, China made a declaration in 2006 in accordance with Article 298 of UNCLOS, excluding disputes such as maritime delimitation, historic titles or rights, and military activities from the compulsory proceedings. China’s declaration of the optional exclusion means it will not accept the compulsory mechanism of Part 15 of UNCLOS in dealing with the overlapping maritime claims or delimitation issues. More than 30 countries have made similar statements. All these declarations made by China and other countries constitute an integral part of the UNCLOS and should be effective and respected. In disregarding the choice made by China, the Philippines has violated the right that China enjoys as a state party to UNCLOS to seek a dispute settlement of its own choice, violated UNCLOS, and damaged the integrity and delicate balance of UNCLOS.
Second, both sides, China and the Philippines, have committed themselves many times to resolving disputes between them through bilateral negotiation and consultation. According to China’s legislation and practice, such as notes verbales to UN in 2009 and 2011, China’s Nansha Islands has its own territorial sea, contiguous zone, EEZ, and continental shelf. Meanwhile China also enjoys historic title and rights in the SCS. As these claims overlap with those of the Philippines, how should this problem be solved? As I mentioned before, the third party settlement is excluded, which also means China advocates conducting direct negotiation and consultation based on international law, including UNCLOS, to get an equitable solution. Before the final solution is reached, both sides should exercise self-restraint and try to come to a provisional arrangement. In fact, negotiation and consultation is the best and most effective way to a durable solution. For example, in 2000 China and Vietnam concluded their delimitation treaty over Beibu Bay (Gulf of Tonkin) after years of bilateral talks. Currently China is engaging in delimitation talks over the Yellow Sea with the Republic of Korea. Looking at the bigger picture, China has concluded 12 boundary lines with 14 land neighboring countries by equal and friendly negotiations.
In this regard, China and the Philippines have actually reached a common understanding. There has been a long-standing agreement between China and the Philippines on resolving their disputes in the South China Sea through friendly consultation and negotiation. From 1995 to 2011, there were at least 6 joint statements between the two countries repeatedly reaffirming negotiation as the means for settling their relevant disputes. The mutual understanding was also reflected in the Art. 4 of the Declaration on the Conduct of Parties in the South China Sea (“DOC”), jointly signed in 2002 by China and the Philippines, among others, which emphasizes that negotiations shall be conducted by the states directly concerned. All these obviously have produced the effect of excluding any means of third party settlement. By initiating the arbitration, the Philippines violated the agreement to resolve disputes through negotiations, dishonored its commitment, and has run counter to pacta sunt servanda (pact must be honored), a basic principle in international law.
Third, the basic requirements for launching the compulsory procedure of UNCLOS have not been satisfied. According to Art. 280, 281, 282, and 283 of UNCLOS, there are several procedural preconditions, namely: the means of their own choice prevails, and such means shall be first resorted to and exhausted, when a dispute concerning the interpretation or application arises, parties shall proceed to an exchange of views. Given the fact that China and the Philippines have made a clear choice of the means and procedures of settling their disputes, and given that the Philippines has never fulfilled its obligation to have meaningful talks or a full exchange of views with China, the Philippines violated UNCLOS and abused the procedures under it.
The compulsory settlement procedure provided for in the UNCLOS does not apply to the disputes between China and the Philippines. The tribunal set up thereof has no jurisdiction.
Fourth, the tribunal has taken a biased standing in favor of the Philippines, acting as the Philippines’ agent, and has lost its ground of impartiality and justice. In the award of jurisdiction and admissibility, one can see there are lots of loopholes on the legal reasoning and fact-finding, and it is full of controversies. The tribunal actually took a careless, negligent, and irresponsible jurisprudence approach without a thorough and careful scrutiny. Take two examples. First, it is common knowledge that a geographical feature at sea is meaningless in civilized society without a sovereign or an owner. Only if it is crowned a sovereign, can it generate maritime entitlement. That is why in international law and practice, the legal status of maritime features and territorial sovereignty as well as maritime delimitation are inseparable. Judge Soons, a member of the tribunal co-wrote a paper years ago stating that “entitlement to maritime spaces forms an inherent part of boundary delimitation.” But to our surprise, the tribunal only adopted the Philippines’ plea and reasoning without any hesitation. Second, the tribunal turned a blind eye towards the wholeness of the archipelago of Nansha, a geographical, economic and political entity which historically has been regarded as one unit. But even if it takes a clinical and isolated view, the existence and full entitlement of Taiping Dao (Itu Aba Island) should not be neglected and should be seriously taken into account. Recently the Ma Yingjiu administration of Taiwan gave a detailed description of Taiping Dao.
Based on what I have written above, the compulsory settlement procedure provided for in the UNCLOS does not apply to the disputes between China and the Philippines. The tribunal set up thereof has no jurisdiction. Its forceful handling of the case and exercise of jurisdiction is a willful abuse of power, and has been unlawful from the very beginning. China will not accept or recognize such arbitration in any way.
The disputes between China and the Philippines over the SCS are complicated and comprehensive. It is hazardous to confine the disputes’ settlement solely to the legal approach, as this will only create more problems. This case brought forth by the Philippines is not simply a legal case, it is a political provocation under the cloak of international law with some Western powers behind it. The Philippines and the arbitration tribunal intentionally circumvented China’s declaration, and packaged disputes of territory and maritime delimitation into disputes of the interpretation and application of UNCLOS. What the Philippines intends to do is to use the arbitration to deny China’s territorial sovereignty and maritime entitlement in the SCS, to seek support for its own illegal occupation of some parts of China's Nansha Islands, and even to undermine China's image. The arbitration has gravely hindered mutual political trust between China and the Philippines, and undermined the amicable atmosphere for China and the ASEAN member states to implement the DOC and to consult on the proposed COC. The move constitutes a serious threat to regional peace and stability. China firmly opposes the arbitration case, and will neither accept nor participate in the arbitration process. No matter what the final ruling will be, China will not recognize or implement it. China will remain committed to resolving the disputes peacefully through negotiation and consultation, and will not accept any country’s attempt to use such a ruling as a basis for consultations with China on the SCS issue, nor will China accept any positions or activities proposed by any country based on such a ruling.
The South China Sea issue involves a number of countries, and it is not easy to solve it in a short time. Up to the present, the littoral countries concerned are still working closely together, and the general situation in the SCS is still peaceful and stable. China remains committed to upholding the peace and stability of the SCS, upholding the rule of law in the SCS, and upholding the freedom of navigation and overflight enjoyed by all countries in accordance with international law in the SCS.