Thu | Aug 17, 2017

Niu Qingbao | South China Sea arbitration hurts China and international rule of law (Part I)

Published:Friday | May 27, 2016 | 5:00 AMNiu Qingbao
Niu Qingbao

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.




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".




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.




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.

(To be continued)

- Niu Qingbao is Chinese ambassador to Jamaica