On 29 June 2016, the Arbitral Tribunal in the South China Sea arbitration, established at the unilateral request of the Aquino administration of the Philippines, claimed that it would issue the so-called final award on 12 July 2016. On the same day, the Chinese Foreign Ministry reiterated China’s position of non-acceptance of and non-participation in the arbitration. Why? It is because the Arbitral Tribunal has no jurisdiction over the case and the subject matter. The arbitration is actually a product with No Rationale, No Legitimacy and No Effect.
The “disputed” Nansha Islands in the South China Sea have long been a part of Chinese territory. The Chinese people were the first to discover, name, develop and administrate these islands. The Chinese Government was the first to peacefully and effectively exercise continuous sovereign jurisdiction over them. This fact is supported by numerous historical materials from both China and many western countries. China’s ownership of Nansha Islands had not been questioned until the 20th century. In 1939, Japan occupied part of the Nansha Islands in an effort to control Southeast Asia and in preparations for an invasion of Australia. After the defeat of Japan in World War II, China restored its sovereignty over the occupied islands according to the Cairo Declaration of 1943 and the Potsdam Declaration of 1945.
However, some nearby countries of the South China Sea started encroaching Nansha Islands during the Cold War. The Philippines was the first-comer. The encroachment escalated in the 1970s and 1980s, after rich oil and gas reserves were discovered on the continental shelf of the South China Sea in the late 1960s. Till now, 40 of China’s islands and reefs in Nansha are illegally occupied by the Philippines and some other countries, who have built airstrips and deployed weapons there. The Philippines in particular has kept provoking disputes over islands and reefs time and again by, for example, “grounding” an old warship forcibly and illegally on China’s reef to lay its claim.
It is very ironic and irrational that the illegal occupier pretends to be a victim by putting on a “legal” cloak while turning a blind eye to the basic historical facts.
China, as a responsible country, has been excising maximum self-restraint on the foreign infringement in the South China Sea to maintain regional peace and stability. Meanwhile, China resorts to all-round diplomatic efforts on the consultations with concerned countries including the Philippines. In 1995, China reached consensus with the Philippines on settling the South China Sea issue through bilateral negotiation and consultation, and issued a Joint Statement. The consensus was afterwards reaffirmed in a number of bilateral documents. In 2002, China and ASEAN countries signed the Declaration on the Conduct of Parties in the South China Sea (DOC). The DOC contains provisions of resolving the territorial and jurisdictional disputes by peaceful means and through friendly consultations and negotiations by sovereign states directly concerned. The Philippines was among the signatories. Apparently, the Aquino administration of the Philippines breached its commitments.
Back to the arbitration: people who are familiar with the UN Convention on the Law of the Sea (UNCLOS) should know that territorial issues are beyond the purview of the Convention. As for the maritime delimitation, in pursuant to Article 298 of the Convention, China made an exclusion declaration in 2006, thereby lawfully excluding itself from any compulsory dispute settlement procedure by a third party. Apart from China, over 30 other countries, including the UK and France, have made the same exclusion declaration.
Furthermore, the Law of the Sea clearly provides for a bilateral approach prior to any third-party mechanism, including arbitration. Yet it is clear that bilateral options between China and the Philippines have not been exhausted. This is why we claim that the Philippines’ unilateral initiation of arbitration breaches international law. China’s non-participation in the arbitration process upholds international law.
The tribunal, taking no regard of the fact that China and the Philippines have chosen to settle disputes through negotiation and consultation and the fact that the essence of the subject matter of the arbitration is territorial sovereignty, circumvented the optional exceptions declaration China has made in accordance with UNCLOS, and expanded its jurisdiction at will, and pushed forward the hearing on the relevant subject matter. It lacks even minimal respect for the spirit and principles of the UNCLOS to say the least, and it is a typical example of ultra vires and abuse of its rights.
Since the Tribunal lacks jurisdiction and should not exist in the first place, any “award” issued by it are personal views of the arbitrators at best and are not legally binding. China certainly has good reasons not to recognize it.
Some people argue that China is such a big country that the Philippines is simply too small to stand up to in bilateral negotiations to settle territorial and maritime disputes. Such narrative against China is clearly a result of conventional bias towards large countries. The fact is, through friendly consultation and negotiation, China has already completed border demarcation with 12 of its 14 land neighbours, accounting for some 90 percent of China’s total land boundary. Most of the neighbours are medium-sized or small nations, but none of them has ever complained about the approach of China in the negotiations.
Through friendly negotiations, China and Vietnam have also delimited their maritime boundary in the Beibu Gulf. Large numbers of past practices suggest that bilateral negotiation has its unique strength in resolving such complicated and sensitive issues as territorial sovereignty and maritime boundary delimitation, as it would fully reflect the independent will and sovereign equality of countries concerned, thereby ensuring the negotiated result will enjoy better public acceptance and more effective implementation.
Over the years, based on these principles, China and ASEAN countries have together upheld the peace and stability in the South China Sea, and there has never been any problem of security or freedom of navigation in the region. Yet the Aquino administration of the Philippines went on a pervert course of initiating arbitration without prior consultation with China. The truth behind the arbitration case is political intrigue, whereby certain countries outside the region have been deliberately provoking problems and stirring up tensions, eager to see turbulence in the South China Sea. Some country has been stepping up its re-balancing strategy in the Asia Pacific, even by deploying warships to the doorstep of China for the so-called “freedom of navigation operation”, which has gravely escalated the tensions and complexity of the situation of the South China Sea.
Ironically, while pointing the finger at others and labeling China as “not abiding by international law” in the name of protecting UNCLOS and the international law, this country itself refused to accede to UNCLOS.
The South China Sea issue is very complicated. For the above-mentioned reasons, the arbitration is of no rationale and legitimacy, so that will be of no effect. The so-called final award will be of no help with the settlement of disputes. The parties directly concerned in the South China Sea issue should consult and negotiate face to face, drawing on historical facts and international law. This is the only way we will resolve the South China Sea issue, restore harmony, and bring about lasting peace, cooperation and prosperity to this region.
• Wu Wei, Charge d’Affaires, Embassy of the Chinese Embassy in Namibia.