Arbitration verdict ‘doomed to be invalid’

China’s position on the South China Sea issue is consistent and clear cut: we are committed to resolve the disputes in a peaceful manner, in accordance with international law and on the basis of respecting historical facts.

We believe negotiations and consultation can best represent the principle of equality among countries and is the most effective way to settle disputes.

Since its founding, the People’s Republic of China has signed border treaties with 12 land neighbours on delineation and demarcation of borderlines.

We issued several bilateral documents and joint statements with the Philippines through the years after 2000, to reaffirm the commitment to resolving disputes friendly, signed the Declaration on the Conduct of Parties in the South China Sea (DOC) with ASEAN countries and began consultations to formulate a code of conduct.

All facts have proved that China is a responsible major country, a firm defender of and major contributor to peace and stability in the South China Sea. 

China is firmly committed to upholding freedom and safety of navigation and overflight in the South China Sea lanes.

We supports the “dual track” approach initiated by ASEAN countries, will continue candid exchange of views on the South China Sea issue, manage differences and conduct cooperation, maintain the region peaceful and prosper.

Starting over three years ago, a pending arbitration case that was unilaterally brought by Benigno Aquino III’s government of the Philippines to the Permanent Court of Arbitration in The Hague has been continuously worsening the relationship between China and the Philippines, and substantially helped escalate tensions in the South China Sea. 

The twists and turns caused by this arbitration case are close to an inglorious end; any verdict by the arbitral tribunal on the South China Sea will be of no legal validity.

First, the arbitration is a political farce and provocation under the pretext of law. Its filing against China is clearly in violation of the Philippines’ agreement with China, enshrined in bilateral documents and the DOC, on resolving disputes through negotiations and consultations.

The Philippines should have engaged in close consultations with China to settle the South China Sea disputes and manage the situation on the sea in line with its agreement with China to seek solution through negotiations and consultations.

However, the Aquino government tried to further its interests by not telling the truth, refused to handle the disputes as agreed, because the intension hiding behind is to use the arbitration to deny China’s territorial sovereignty and maritime rights, and interests in the South China Sea, discredit China and seek support for its own invasion and illegal occupation of some islands and reefs of China’s Nansha Island.

Second, the Philippines’ unilaterally initiated arbitration is against international law. The arbitration has violated the provisions of United Nations Convention on the Law of the Sea (UNCLOS), abused its dispute settlement procedures and infringed upon China’s right under UNCLOS to independently choosing dispute settlement mechanisms and procedures.

Given the fact that China and the Philippines made a clear choice on the means and procedures of settling their disputes, third-party settlement procedures provided for in UNCLOS shall not apply.

China and the Philippines have already reached agreement, in bilateral documents, on resolving relevant disputes in the South China Sea through bilateral negotiation. 

DOC, signed by China and ASEAN member states, including the Philippines, in 2002, also clearly stipulates 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”.

On that basis, China and the Philippines chose negotiation as the means to resolve disputes and excluded third-party settlement, including arbitration.

The Philippines still issued a statement jointly with China in 2011, undertaking to resolve disputes through negotiations and consultations.

The Philippines submitted its request of arbitration without engaging in consultations with China, even on the very existence of “disputes concerning the interpretation or application of the convention” and other matters.

Third, the arbitral tribunal, disregarding the fact that China and the Philippines had chosen to settle relevant disputes through negotiations and consultations, and of the declaration on optional exceptions China made in pursuance with UNCLOS, has violated UNCLOS and expanded and abused its power at will by hearing the case and exercising jurisdiction, given that the Philippines’ requests are, in essence, about territorial sovereignty and maritime delimitation.

Territorial issues are subject to general international law, not UNCLOS.

The declaration on optional exceptions China made in 2006, in accordance with Article 298 of UNCLOS, excludes disputes concerning maritime delimitation, historic bays or titles from the dispute settlement procedures provided for in UNCLOS.

Thus, the arbitration is illegal, and null and void. 

In fact, the acts of the arbitral tribunal affect the stability of regional and international maritime order, and contradict its purpose of peaceful settlement of international disputes.

Based on the above, the compulsory settlement procedure provided for in UNCLOS does not apply to the disputes between China and the Philippines.

The arbitral tribunal set up thereof has no jurisdiction. Its handling of the case and exercise of jurisdiction is willful expansion and a abuse of power.

China does not accept or recognise such arbitration that has been illegal from the very beginning.

The so-called “award” of the arbitration is thus not binding. China will not accept any country’s attempt to use such an “award” as a basis for consultations with it on the South China Sea issue, nor will it accept any positions or activities proposed and conducted by any country based on such an “award”.

By not accepting or participating in the unilateral arbitration initiated by the Philippines, China is upholding its rights under international law.

The root cause of the South China Sea issue is the invasion and illegal occupation by certain countries of some islands and reefs of China’s Nansha Islands.

The South China Sea Islands, 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. It was the Chinese government that first exercised sovereignty and jurisdiction over them and relevant waters, a practice that has been continued in a peaceful and effective manner without interruption.

When World War II ended, in accordance with the Cairo Declaration and the Potsdam Proclamation, China recovered the Nansha Islands, and asserted its sovereignty and reinforced jurisdiction through such measures as compiling their official names, publishing maps, setting up administrative units and stationing troops.

Before the 1970s, it was widely recognised by the international community that the South China Sea Islands belong to China, and not a single country raised objections to it.

In 1968, a survey conducted by an affiliate of the United Nations indicated rich oil and gas reserves in the South China Sea. 

Some countries, such as the Philippines, started to occupy China’s Nansha Islands and reefs. 

China is a victim in the South China Sea issue. Nonetheless, in order to uphold regional peace and stability, the Chinese side has all along exercised great restraint, handled the South China Sea issue in a responsible and constructive manner and committed itself to resolving the relevant disputes through negotiations and consultations.

The writer is ambassador of the People’s Republic of China to Jordan. He contributed this article to The Jordan Times.