Image
By Yang Lu

Why the Arbitration Initiated by the Philippines Threatens Peace and Stability in the South China Sea?

May. 02, 2016  |     |  0 comments


(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 compulsory arbitration proceedings with respect to its disputes with China in the South China Sea. Now the Arbitral Tribunal has rendered the award on the matters 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 earlier consensus between China and the Philippines on settling their relevant disputes through negotiation and consultation; 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. The Philippines abused the compulsory procedures for dispute settlement under the Convention in order to cover up the territorial and maritime delimitation nature of its disputes with China with the so-called “interpretation and application of the Convention,” and used the Convention as a pretext to negate its obligation under the UN Charter to respect the sovereignty and territorial integrity of countries, and to mislead the public over its illegal occupation of some maritime features of China’s Nansha Islands (Spratly Islands). The action of the Philippines constitutes a grave threat to peace and stability in the region.


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. Successive Chinese governments have exercised jurisdiction over them through administrative management, military navigation, production and operation, as well as wreck salvage. Japan seized the Xisha Islands (Paracel Islands) and Nansha Islands after it launched its 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 the Xisha and Nansha Islands, and stationed troops and set up various military and civil facilities on these 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 (Scarborough Shoal) are not within the scope of Philippine territory as 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 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 Presidential Decree 1596, which unlawfully designated a so-called “Kalayaan Island Group” which encompassed and claimed sovereignty over some of the maritime features of China’s Nansha Islands. 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 as its own territory in an attempt to make its illegal occupation permanent and legal.



Since the 1960s, China has settled boundary questions with 12 of its 14 land neighbors through negotiation and consultation, delimiting 20,000 kilometers of boundaries.



To deny China’s territorial sovereignty as well as its maritime rights and interests, the Philippines has taken irresponsible unilateral actions, including 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 its illegal occupation of some maritime features of China’s Nansha Islands, the Philippines sought to permanently occupy the Chinese territory and “legalize” its illegal occupation through expansion of the maritime features, including the 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 (Second Thomas Shoal). The Philippines unilaterally conducted oil and gas exploitation in the disputed waters in the South China Sea, and has arrested, detained, abused, and shot dead Chinese fishermen, in order to impose its claims of maritime rights and interests over the Chinese people and government. On April 10, 2012, the Philippines sent a warship, the BRP Gregorio del Pilar, into the adjacent waters of China’s Huangyan Island, forcefully harassed the Chinese fishermen and fishing boats conducting their normal operations there, treated the Chinese fishermen inhumanely, including naked exposure to the scorching sun for a long time, and deliberately triggered the “Huangyan Island incident.”


The Chinese government has all along been committed to solving disputes of overlapping claims of territorial and maritime rights and interests through negotiation and consultation in accordance with 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 negotiation and consultation, delimiting 20,000 kilometers of boundaries, which account for 90 percent of China’s 22,000 kilometers of land boundaries. In addition, China and Vietnam have delimited their maritime boundary in the Beibu Gulf (Gulf of Tonkin) through consultation and negotiation. It is fair to say that these are perfect examples of how China pursues its independent foreign policy, the policy of good neighborliness, and international law. They are also remarkable achievements made by China through negotiation and consultation.


The peaceful settlement of disputes through negotiation and consultation is not only China’s policy, but is also in line with bilateral agreements between China and the Philippines. The following agreements all explicitly state that the two sides will solve their 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 (August 10, 1995), Joint Statement of the China-Philippines Experts Group Meeting on Confidence-Building Measures ( March 23, 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 (May 16, 2000), Joint Press Statement Between the Government of the People’s Republic of China and the Government of the Republic of the Philippines (September 3, 2004), and Joint Statement Between the People’s Republic of China and the Republic of the Philippines (September 1, 2011).


On November 4, 2002, China signed the DOC with the Philippines and other ASEAN countries. Paragraph 4 of the DOC explicitly states: “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.”


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 the Chinese government aims to defend and practice the 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 had long been reached between China and the Philippines through bilateral documents that relevant disputes should be settled through negotiation and consultation, 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 negotiation and consultation. 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 statements similar to China’s. 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 negotiation and consultation and the two countries have long engaged in close communication on the 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 negotiation and consultation. 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 result of long historical developments. They were 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 in 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 this illegal occupation. This represents a further step in its infringement of China’s territorial sovereignty.



Consultations between China and the Philippines have all along focused on resolving and managing territorial and maritime delimitation disputes as well as maritime cooperation.



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 delimitations 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 have recused himself from the case and refrained from making any arrangements. 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, 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 has failed to provide the necessary reasoning and has not taken the case seriously enough.


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 established under international law that territorial sovereignty is sacred and inviolable, including the UN Charter. The Philippines is attempting to cover up the fact that it is illegally occupying China’s islands and reefs in the Nansha Islands. Inviolability of territorial sovereignty is the basic norm in international exchange 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 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 the ASEAN countries finally reached the DOC. The DOC reflects the consensus between China and the ASEAN countries on resolving the South China Sea dispute through negotiation and consultation, managing and controlling 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 the 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 the 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 an attempt is doomed to fail.


Leave a Reply

Your email address will not be published. Required fields are marked *