Journal

The South China Sea Arbitration Initiated by the Philippines is a Threat to Peace and Stability in the South China Sea

Lu Yang
In January 2013, the Philippines unilaterally initiated compulsory arbitration proceedings with respect to the disputes with China in the South China Sea. Now the Arbitral Tribunal has rendered the award on the matter of jurisdiction and admissibility, and finished the tribunal hearings of the substantive issues and the outstanding issue of jurisdiction. The Philippines unilaterally initiated the arbitration, disregarding the consensus between China and the Philippines on settling relevant disputes through negotiations and consultations, the solemn commitment of the Philippines in the Declaration on the Conduct of Parties in the South China Sea (DOC), and the legitimate rights that China enjoys as a sovereign state and a contracting party to the United Nations Convention on the Law of the Sea (the “Convention”) to independently choose dispute settlement mechanisms and procedures. It abused the compulsory procedures for dispute settlement under the Convention in order to cover up the territorial and maritime delimitation nature of the disputes between China and the Philippines with the so-called “interpretation and application of the Convention”, to use the Convention as a pretext to negate the obligation under the UN Charter to respect sovereignty and territorial integrity of countries, and to mislead the public and defend its illegal occupation of some maritime features of China’s Nansha Islands. The act of the Philippines constitutes a gave threat to peace and stability in the region.
 
I. It is the expansion of the Philippine territory that led to the disputes between China and the Philippines in the South China Sea.
 
The essence of the disputes between China and the Philippines in the South China Sea is the territorial disputes caused by the illegal occupation of China’s maritime features in the Nansha Islands by the Philippines in the 1970s in violation of the UN Charter.
 
The islands in the South China Sea have been Chinese territory since ancient times. The successive Chinese governments have exercised jurisdiction over them through administrative management, military navigation, production and operation as well wreck salvage. Japan seized Xisha and Nansha Islands after it launched the war of aggression against China. Both the Cairo Declaration and the Potsdam Proclamation state in explicit terms that all the territories stolen from China by Japan shall be returned to China. Since the victory of the Chinese People’s War of Resistance against Japanese Aggression, China has recovered Xisha and Nansha Islands, and stationed troops and set up various military and civil facilities on the islands. Thus, in terms of both law and facts, China has resumed its sovereignty over these islands in the South China Sea.
 
The limits of the inherent Philippine territory were clearly set forth by the Treaty of Paris concluded between the United States and Spain in 1898, the Treaty Between the Kingdom of Spain and the United States of America for Cession of Outlying Islands of the Philippines in 1900, and the Convention Between the United States of America and Great Britain Delimiting the Boundary Between the Philippine Archipelago and the State of North Borneo in 1930. The Nansha Islands and Huangyan Island are not within the scope of the Philippine territory set forth 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.
 
Since the early 1970s, the Philippines has pushed for expansionism beyond its inherent territory. Hence, it gradually occupied eight maritime features of China’s Nansha Islands. In June 1978, the Philippines issued the Presidential Decree 1596, which 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 revised the Act to Define the Baselines of the Territorial Sea of the Philippines and blatantly listed parts of China’s Nansha Islands and Huangyan Island into its own territory in an attempt to make its illegal occupation permanent and legalized.
 
To deny China’s territorial sovereignty as well as maritime rights and interests, the Philippines took irresponsible unilateral acts, such as illegal construction, moves aimed at stirring up trouble, oil and gas exploration and detention of Chinese fishermen, to escalate tensions and aggravate and complicate the disputes over the South China Sea between China and the Philippines. After illegal occupation of some maritime features of China’s Nansha Islands, the Philippines sought to permanently occupy the Chinese territory and “legalize” the illegal occupation through expansion of the maritime features, construction of military facilities, ports and airports, and establishment of administrative institutions. 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” an old naval ship at Ren’ai Jiao. The Philippines unilaterally conducted oil and gas exploitation in the disputed waters in the South China Sea and arrested, detained, abused and shot dead Chinese fishermen, in an attempt to impose its claims of maritime rights and interests on the Chinese people and government. On 10 April 2012, the Philippines sent BRP Gregorio del Pilar warship into the adjacent waters of China’s Huangyan Island, forcefully harassed the Chinese fishermen and fishing boats conducting normal operation there, treated the Chinese fishermen inhumanely like naked exposure to the scorching sun for a long time, and deliberately triggered the “Huangyan Island incident”.
 
II. China and the Philippines have chosen to settle their disputes in the South China Sea through negotiation and consultation.
 
The Chinese government has been all along committed to solving disputes of overlapping claims of territorial and maritime rights and interests through negotiation and consultation in accordance with the international law and on the basis of respecting historical facts. Since the 1960s, China has settled boundary questions with 12 of its 14 land neighbors through negotiations and consultations, delimiting 20,000 kilometers of boundaries, accounting for 90 percent of China’s 22,000 kilometers of land boundaries. Besides, China and Vietnam has delimited the maritime boundary in the Beibu Gulf through consultations and negotiations. It is fair to say that this is a perfect example of how New China pursues the independent foreign policy, the policy of good neighborliness and international law. It is also a remarkable achievement made by New China through negotiations and consultations.
 
Peaceful settlement of disputes through negotiations and consultations is not only China’s policy, but also in line with bilateral agreements between China and the Philippines. The following agreements all explicitly state that the two sides will solve territorial and maritime disputes through bilateral negotiation and consultation: Joint Statement between the People's Republic of China and the Republic of the Philippines Concerning Consultations on the South China Sea and on Other Areas of Cooperation (10 August 1995), Joint Statement of the China-Philippines Experts Group Meeting on Confidence-Building Measures (23 March 1999), Joint Statement Between the Government of the People's Republic of China and the Government of the Republic of the Philippines on the Framework of Bilateral Cooperation in the Twenty-First Century (16 May 2000), Joint Press Statement Between the Government of the People's Republic of China and the Government of the Republic of the Philippines (3 September 2004) and Joint Statement Between the People's Republic of China and the Republic of the Philippines (1 September 2011).
 
On 4 November 2002, China signed the DOC with the Philippines and other ASEAN countries. Paragraph 4 of the DOC explicitly states 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, in accordance with universally recognized principles of international law, including the 1982 UN Convention on the Law of the Sea."
 
III.The South China Sea arbitration case initiated by the Philippines violates international law.
 
The firm position of the Chinese government to not accept or participate in the arbitration is based on the fact that the arbitration violates basic international law, and aimed to defend and practice international rule of law.
 
First, the Philippines' unilateral initiation of the arbitration runs counter to the consensus between the two sides on settling disputes through negotiation and consultation and violates the basic norm of pacta sunt servanda in international law. Consensus has long been reached between China and the Philippines through bilateral documents that relevant disputes should be settled through negotiations and consultations, and the DOC also contains similar stipulations and clearly rules out other means of dispute settlement. The Philippines claims that the documents and the DOC are not binding and other methods of dispute settlement have not been excluded between China and the Philippines. In so doing, the Philippines has completely gone back on its commitment and violated the basic norm of pacta sunt servanda in international law.
 
Second, the Philippines' unilateral initiation of the arbitration runs counter to the stipulations of UNCLOS and infringes on China's right to independently choose methods of dispute settlement. China and the Philippines have made the choice and agreed to settle their disputes through negotiations and consultations. Article 280 of UNCLOS stipulates that nothing impairs the right of any States Parties to agree at any time to settle a dispute between them concerning the interpretation or application of this Convention by any peaceful means of their own choice. The true intention of the Philippines' initiation of the arbitration is to deny China's territorial sovereignty and maritime rights and interests. Territorial disputes concerning islands and reefs should be covered by the general international law and UNCLOS has no jurisdiction over this matter. As for disputes concerning sea boundary delimitation, in accordance with Article 298 of UNCLOS, China has excluded disputes such as sea boundary delimitation, historic bays or titles and military and law enforcement activities from the compulsory dispute settlement procedures of UNCLOS. About 30 countries, including China, Russia, France and the UK, have made similar statements as the one China did. The Philippines' unilateral initiation of the arbitration goes against the agreement long reached between the two sides and violates the right China enjoys as a sovereign state and a State Party to UNCLOS to independently choose dispute settlement mechanisms and procedures.
 
Third, the Philippines' unilateral initiation of the arbitration runs counter to the basic legal principles for arbitration. According to the principles of international law, arbitrations should be jointly initiated by parties involved out of their own will. China and the Philippines have already reached the consensus that disputes should be settled through negotiations and consultations and the two countries have long engaged in close communication on settlement of disputes in the South China Sea as well as management and control of the maritime situation there. The two sides have also set up work mechanisms such as the confidence-building experts' group. In 2011, the Philippines even issued a joint statement with China in which it stated its commitment to settling disputes through negotiations and consultations. However, after just one year, the Philippines suddenly put up its disputes with China for arbitration without notifying China beforehand, let alone seeking China's consent. This is nothing but a treacherous act. The Philippines claims that it has exhausted all bilateral means, yet in fact consultations between China and the Philippines have all along focused on resolving and managing territorial and maritime delimitation disputes as well as maritime cooperation. No substantive negotiation has ever been held on the Philippines' arbitral demands.
 
Fourth, the Philippines' unilateral initiation of the arbitration is the continuation and development of its territorial expansion and infringes on China's territorial sovereignty. China's territorial sovereignty and maritime rights and interests are the results of long historical developments. They are left to us by our ancestors and are not up for someone else to decide. China trusted the Paris Peace Conference after WWI and the League of Nations after the September 18 Incident in 1931. But on both cases China was betrayed and as a result lost its Shandong Province and three northeastern provinces. History has taught us that only the Chinese people and government can decide on issues involving territory and sovereignty and no other people, country or institution shall have the right to make such decisions. By initiating the arbitration, the Philippines tries to cover up the fact that it has illegally occupied China's islands and reefs in the Nansha Islands and attempts to legitimize its illegal occupation. This represents a further step in its infringement upon China's territorial sovereignty.
 
IV. The Arbitration Tribunal has acted like the Philippines' agent.
 
The Philippines chose to launch the arbitration case when Shunji Yanai, a Japanese national, worked as President of the International Tribunal for the Law of the Sea (ITLOS). It is well-known that China and Japan have disputes on territorial sovereignty and maritime delimitation in the East China Sea and Japan has been actively interfering in the South China Sea issue. According to the rules of international law and common practice in the world, Shunji Yanai should recuse himself from this case and refrain from making any arrangement. However, He appointed four of the five arbitrators in the tribunal, including arbitrators who were firmly opposed to China's similar positions in relevant previous cases. The composition of the arbitration tribunal is clearly against procedural justice.
 
The arbitration tribunal, in disregard of the purpose of peaceful settlement of international disputes, has expanded its power at will and reached out to matters beyond its jurisdiction. By explaining the law as it pleases, imposing its jurisdiction on matters that are clearly outside of its mandate and expanding its power willfully, the tribunal has violated the rights of sovereign states and State Parties to UNCLOS.
 
The tribunal has made a great number of factual and legal mistakes in its ruling on the matter of jurisdiction. Instead of functioning as a neutral judge, the tribunal acts more like the Philippines' partner in countering China's position. The tribunal often set a conclusion first for requests from the Philippines before selectively gathering evidence against China and making unwarranted accusations. For example, the tribunal asserted that the nature of this case is not about territorial sovereignty and maritime delimitation, yet it treated negotiations and consultations between China and the Philippines on settling disputes cover territorial sovereignty and maritime delimitation as evidence that the Philippines has fulfilled its obligation of exchanging opinions with China. It declared the DOC not legally binding, while using the document as evidence that the Philippines has carried out its obligation of exchanging opinions. In addition, on issues involving the territorial status of islands and reefs, territorial sovereignty and maritime delimitation as well as whether pledges are binding, the tribunal cited some recent and highly controversial judicial rulings to support its point while ignoring international judicial cases whose rulings are categorically different from its own ruling. Furthermore, the tribunal failed to provide necessary reasoning and take the case serious enough.
 
V. The Philippines' arbitration case is a threat to peace and stability in the South China Sea.
 
The Philippines' South China Sea arbitration case represents a dangerous tendency in current international relations. Some countries try to use UNCLOS as the only standard and deny the principle that territorial sovereignty is sacred and inviolable established under international law, including the UN Charter. They attempt to cover up the fact that they are illegally occupying China's islands and reefs in the Nansha Islands. Inviolability of territorial sovereignty is the basic norm in international exchanges and a basic principle in international law. It is the bedrock for stable international relations. UNCLOS also clearly stipulates that it intends to build a legal order for the seas and oceans with due regard for the sovereignty of all states. UNCLOS has never given a country the right to violate other countries' territorial sovereignty under the guise of its maritime jurisdiction. The Philippines has unilaterally initiated and pushed ahead the arbitration and used the so-called maritime jurisdiction to deny China's territorial sovereignty over the Nansha Islands. This is a provocation against the basic principle of international law about respect for sovereignty and territorial integrity and shakes the foundation of the modern international law and international order.
 
UNCLOS lays out methods to settle disputes, including judicial and arbitration means, with the fundamental purpose of stopping disputes and peacefully resolving international maritime disputes. In the Philippines' South China Sea arbitration case, the arbitration tribunal has willfully expanded its power and included territorial and maritime delimitation disputes, which are clearly outside of its mandate, under its jurisdiction and denied the binding nature of the consensus and relevant agreements between China and the Philippines on settling disputes through negotiation and consultation. This has not only exacerbated the problem between China and the Philippines, but also affected the stability of regional and international maritime order. This is against the purpose of peaceful settlement of international disputes, undermines the fragile balance reached between different parties for UNCLOS and also harms the integrity and authority of UNCLOS.
 
After nearly 10 years of difficult negotiations, China and ASEAN countries finally reached the DOC. The DOC reflects the consensus between China and ASEAN countries on resolving the South China Sea dispute through negotiations and consultations, managing and controling disputes by formulating rules and promoting mutual benefits through practical cooperation. After signing the DOC, countries have regulated their behaviors in the South China Sea in accordance with the DOC and actively promoted practical maritime cooperation. In September 2013, China and ASEAN countries launched the consultation on a code of conduct in the South China Sea under the framework of the full and effective implementation of the DOC. It is fair to say that the DOC has become a regional standard jointly formulated and implemented by China and ASEAN countries and is binding for all the signatories. The Philippines, out of its own selfish interests, has disregarded the tremendous role of the DOC in maintaining peace and stability in the South China Sea, willfully denied the significance of the DOC and claimed before the arbitration tribunal that the DOC is only a product of compromise between countries, has no binding force and has not played any role. This has greatly harmed the political foundation for regional peace and stability.
 
The Philippines' South China Sea arbitration is a political farce under a legal cloak. It can neither change the "old order" nor create a "new reality". China does not accept nor recognize the arbitration, both in a legal sense and in action. Whatever the ultimate result of the arbitration case, China will not accept or recognize its ruling, let alone implement it. China will never allow any country to negotiate with China about the South China Sea issue based on that ruling. The Philippines dreams about denying China its territorial sovereignty and maritime rights and interests and tarnishing China's image in the world through this arbitration case. Such attempt is doomed to fail.
 
 
 
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Lu Yang is an observer of international issues.

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