Expert: Arbitration won't change iron-clad facts

Source: China Military OnlineEditor: Zhang Tao
2016-07-11 18:19

BEIJING, July 11 (ChinaMil) -- The Aquino administration of the Philippines unilaterally initiated the so-called arbitration on its disputes with China on South China Sea in January 2013. Whatever the arbitral tribunal rules the case, it is illegal and invalid and China will not accept or recognize it. The arbitral rule won't change the iron-clad fact that China has territorial sovereignty and maritime rights and interests in the South China Sea.

China's territorial sovereignty and maritime rights and interests in the South China Sea were well established a long time ago. Any attempt to deny its lawful rights will be doomed to failure.

The islands and reefs in the South China Sea have been Chinese territory since ancient times. The successive Chinese governments have exercised jurisdiction over them and adjacent sea areas through administrative management, military navigation, production and operation and salvage.

During WWII, Japan seized the Nansha Islands, but it returned the Chinese territory it had stolen after WWII according to international documents such as the Cairo Declaration and the Potsdam Proclamation.

After China recovered the Nansha Islands, it proclaimed sovereignty and enhanced jurisdiction by naming the islands, publishing maps, establishing administrative body and stationing military forces, thus restoring the exercise of sovereignty over South China Sea Islands both legally and factually.

For decades after WWII, the international community has generally recognized that Nansha Islands belong to China and no country has ever demurred on that.

China doesn't accept arbitration because the Chinese government and Chinese people are the only rule maker regarding China's territorial sovereignty and maritime rights and interests.

China's territorial sovereignty and maritime rights and interests in the South China Sea derive from the long history and cannot be ruled by a so-called arbitral tribunal.

China once trusted the Paris Peace Conference when the WWI ended, and it also trusted the League of Nations after the September 18th Incident, but it was betrayed by both of them and consequently lost Shandong and the three provinces in Northeast China.

History has taught China a valuable lesson, that is Chinese government and Chinese people are the only rule maker when it comes to territorial sovereignty, and no other person, country or organization has the right to deal with it.

China doesn't accept arbitration because the unilateral initiation of arbitration by the Aquino administration which is in severe violation of international law.

First of all, according to Article 286 of United Nations Convention on the Law of the Sea (the Convention), compulsory arbitration is only applicable to disputes concerning the interpretation or application of the Convention.

As pointed out in the Preamble of the Convention, the Convention is aimed to "establish a legal order for the seas and oceans". Since issues concerning territorial sovereignty on the land don't fall under the scope of the Convention, they are not in the applicability scope of compulsory arbitration either.

But the Philippines maliciously avoided the subjects of the disputes and "disguised" China-Philippines disputes over the territorial ownership of certain Nansha islands and reefs as "disputes about the legal position of islands and reefs" and "disputes about law enforcement activities', and attempted to derogate China's territorial sovereignty in the name of international arbitration. The arbitral tribunal obviously has no jurisdiction over the matter.

Second, the Convention endows all contracting states with the right to independently choose the means of dispute settlement. Such independently chosen means by a concerned party should be respected and it excludes the application of compulsory dispute settlement procedures.

Article 280 of the Convention stated "Nothing in this Part 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." Article 281 stated that "if the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed to seek settlement of the dispute by a peaceful means of their own choice, the procedures provided for in this Part apply only where no settlement has been reached by recourse to such means and the agreement between the parties does not exclude any further procedure."

The Aug 10 1995 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, the May 16 2000 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 21st Century, and the Sept 1 2011 Joint Statement between the People's Republic of China and the Republic of the Philippines - all explicitly stated that China and the Philippines would settle their disputes on territory and maritime rights and interests through bilateral negotiation and consultation.

In 2012, Chinese government and governments of ASEAN countries including the Philippines signed the Declaration on the Code of Conduct on the South China Sea, in which Article 4 stated "The Parties concerned undertake to resolve their territorial and jurisdictional disputes by peaceful means."

All these show that the South China Sea disputes between China and the Philippines can only be resolved through negotiation and the parties concerned should not resort to compulsory dispute settlement procedures like arbitration.

At last, the Convention grants contracting states the right to exclude the application of compulsory arbitration on specific subjects.

According to Article 298 of the Convention, as regards disputes concerning maritime delimitation, historic bays or titles, military and law enforcement activities, and disputes in respect of which the Security Council of the United Nations is exercising the functions assigned to it by the Charter of the United Nations, a state may declare in writing that it excludes the application of compulsory dispute settlement procedures including compulsory arbitration.

Pursuant to the Convention, China made a declaration in 2006 to exclude the application of any compulsory dispute settlement procedure on subjects of disputes laid down under Article 298. The declaration constituted an indispensable part of the interpretation and application of the Convention, but the Aquino administration turned a blind eye to it and resorted to sophistry.

Ever since the Convention took effect, this was the first case where when a state already made a declaration of exclusion, the other state unilaterally initiated a compulsory arbitration regarding the disputes covered in that declaration. The Aquino administration was abusing the compulsory dispute settlement procedures provided for by the Convention, which seriously challenged their solemnity.

China is a staunch preserver and builder of international rule of law. All countries should observe international law as the common yardstick, exercise their rights accordingly, perform obligations in good will, and ensure its equal and unified application. National and international judicial organizations should prevent the interpretation and application of international law beyond authority, much less infringe upon other country's rights and interests under the pretext of "rule of law" in disregard of objective facts and justice.

Today, China's resolve to defend its lawful rights remains unchanged and its capability of doing that is stronger. Anyone who attempts to deny its territorial sovereignty and maritime rights and interests will have to pay the price.

Written by Ye Qiang, from the National Institute for South China Sea Studies.

Next page