The South China Sea Arbitration: Illegal, Illegitimate and Invalid

This article was written for the European Sting by HE Ambassador Yang Yanyi of the Chinese Mission to EU in Brussels.

If I have to choose three words to reflect my views of the award of arbitration over the South China Sea disputes unilaterally filed by the Philippines against China, it would be illegal, illegitimate and invalid. And China’s position is firm and clear: non-acceptance.

Not surprisingly, some in the West have again pointed their fingers at China and accused China of “thumbing nose at international rules”. I cannot but dismiss these allegations and vilifications as groundless and unjustified.

Contrary to what was claimed in the West, it is the Philippines and some other forces that are acting against international law. China is not.

1. Although the Philippines has struggled to appear that it is asking nothing more than requesting the Arbitral Tribunal to decide that some features in the South China Sea are low-tide elevations incapable of generating any maritime entitlement, it failed to cover up the essence of its submission, which is about territorial sovereignty and maritime delimitation. Nor can it hide its obvious purpose of denying China of its sovereignty over maritime features of the Nansha Islands and emboldening its illegal occupation of maritime features of the Nansha Islands from China.

Many scholars on international law are of the view that the Tribunal that handles the arbitration proceedings has no jurisdiction over the case, as the crux of the case is about territorial sovereignty and maritime delimitation. As Prof. Antonios Tzanakopolos of the University of Oxford pointed out, the dispute between China and the Philippines is “obviously over sovereignty over maritime features in the South China Sea”.

It is common knowledge that territorial issues are subject to general international law, rather than the United Nations Convention on the Law of the Sea (the UNCLOS/the Convention), and that disputes concerning maritime delimitation are excluded by China in its 2006 declaration on optional exceptions on Article 298 of UNCLOS.

Let me quote 298.1(a) (i) of UNCLOS “… any dispute that necessarily involves the concurrent consideration of any unsettled dispute concerning sovereignty or other rights over continental or insular land territory shall be excluded from (compulsory procedures).” 298.1 of UNCLOS stipulates clearly “… a State may, … declare in writing that it does not accept any one or more of the (compulsory) procedures … with respect to (disputes concerning) … maritime delimitation … historic bays or tiles … military and law enforcement activities…”.

Mr. Chris Whomersley, former Deputy Legal Adviser of the UK’s Foreign and Commonwealth Office, made a good point when he said there was “no precedent for an international tribunal deciding upon the status of a maritime feature when the sovereignty… is disputed”. He described the act of the Philippines and the Arbitral Tribunal in a quite metaphorical way: Putting the cart of status before the horse of sovereignty.

Simply put, the Philippines’ initiation of the arbitration is in total disregard of international law and the spirit of UNCLOS, and undermines the authority and sanctity of the Convention.

2. Settlement of territorial sovereignty dispute through bilateral negotiations is an established international practice and in full compliance with the principles and spirit of the UN Charter.

If memory serves me correctly, China and the Philippines were the first countries in the region that agreed to resolve the relevant disputes through negotiations.

In June 1986, during his meeting with Jose P. Laurel, Vice-President and Minister of Foreign Affairs of the Philippines, Mr. Deng Xiaoping put forward the principle of shelving disputes and seeking joint development. In April 1988, when Mr. Deng Xiaoping met with Philippine President Corazon Aquino, he spelled out this principle even more clearly.

This approach and principle was well received by the Philippine side. China and the Philippines later entered into a number of agreements on bilateral ties and their option of going for bilateral negotiations rather than arbitration to resolve the relevant disputes.

These documents include, among other things, the 1995 Joint Statement between China and the Philippines concerning Consultations on the South China Sea and on Other Areas of Cooperation; the 1999 Joint Statement of the China-Philippines Experts Group Meeting on Confidence-Building Measures; the 2000 Joint Statement between the Government of China and the Government of the Philippines on the Framework of Bilateral Cooperation in the 21st Century; the 2004 Joint Press Statement between the Government of China and the Government of the Philippines; and the 2011 Joint Statement between China and the Philippines.

The same spirit was enshrined in the Declaration on the Conduct of Parties in the South China Sea (DOC), a document of far-reaching historic significance agreed upon by China and the ASEAN, including the Philippines.

According to Article 4 of the DOC, “the Parties concerned undertake to resolve their territorial and jurisdictional disputes by peaceful means, without resorting to the threat or use of force, 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.”

I had the pride of working on China-Philippines and China-ASEAN relations in the Asian Department of the Ministry of Foreign Affairs, where I was personally involved in the negotiations and drafting of the DOC and a few other agreements. For someone who worked for years on these instruments, the thrust of these agreements cannot be clearer, i.e., disputes shall be settled in a peaceful and friendly manner through consultations on the basis of equity and mutual respect, and third-party dispute settlement, including arbitration, is explicitly excluded.

To my shock, far from exhausting diplomatic efforts, the Philippines turned its back on the political commitment it had made and, against the principle of Pacta sunt servanda, unilaterally initiated the so-called arbitration by abusing the UNCLOS dispute settlement procedures.

It should not be too difficult to conclude, therefore, who is contemptuous of international law and who is violating the norms governing international relations.

3. Talking about respecting international law, we need to remind ourselves of the long established principle of “Ex injuria jus non oritur”, i.e., legal right or entitlement cannot arise from an unlawful act, and that the UNCLOS does not allow initiation of Arbitration as in the Philippines’ case.

As I mentioned before, settling relevant dispute through negotiations is the means China and the Philippines have agreed in a series of bilateral documents and the DOC. According to universal principle of international law and order and norms governing international relations, one country is under the obligation to abide by its agreement with other countries.

According to 281.1 of UNCLOS, “if the States Parties…have agreed to seek settlement of the dispute by a peaceful means of their own choice, the (compulsory disputes settlement) procedures 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.”

In the worst scenario, if a dispute arises between States Parties concerning the interpretation or application of the Convention, according to Section 1, Article 283 of UNCLOS, “the Parties to the dispute shall proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means.”

Yet, despite the fact that the channel for bilateral consultation was wide-open, the Philippines never exchanged views with China concerning its arbitration submission. The so-called “disputes” in the arbitration are sheer fabrication and the whole thing is illegally imposed on China.

Again, it is crystal clear that the Philippines and the Arbitral Tribunal are making a mock of international law, including UNCLOS, and their act will not have any lawful and legal effect.

4. The arbitration does more harm than good to good-neighborliness and peace and stability in the South China Sea.

Putting the South China Sea issue in perspective, one will not fail to see that since the end of the Cold War, the general trend in the region is to seek new concept and approach to promote peace and prosperity. This new concept and approach, characterized by mutual respect, dialogue and cooperation, and strongly championed by China, effectively promoted a peaceful, friendly and harmonious environment in our region, including the South China Sea.

It is only in recent years that such positive trend was interrupted if not obstructed. The row over the South China Sea issue is but one phenomenon of such a reversal.

People may have different observations of the root cause of the present fluid situation, yet I am afraid that some of them, especially reports from the Western media, are filled with insufficient knowledge of the South China Sea issue and biased views of China and the overall situation in Southeast Asia.

One has to admit that the reaction from the other side of the Pacific to the positive development and achievements in Southeast Asia, especially the launching of the so-called “Asia-Pacific rebalancing” in 2010, has had profound impact on the region. Trust and confidence among countries in the region have been eroded, the focus on economic development and the approach of dialogue and cooperation are in danger of being shifted toward and replaced by confrontation.

One needs to acknowledge the fact, too, that as a Permanent Member of the UN Security Council, China has contributed to the building of a fair and reasonable international order under the UN Charter and a series of international documents. China has always stood for safeguarding peace and stability and promotion of cooperation and prosperity, and is fully committed to resolving disputes peacefully through consultations and negotiations in accordance with international law and the spirit of the DOC.

It is true that China has conducted construction work on some of its islands. But let’s not forget that this is done on China’s own soil, and the purpose of doing so is nothing but improving the living and working conditions of personnel stationed there and better safeguarding China’s territorial sovereignty and maritime rights. This is not targeted at any other country, nor will it impact in any way the freedom of navigation and over-flight in the South China Sea.

In this connection, I need to emphasize that as the largest coastal country of the South China Sea and as the world’s biggest trading nation in goods, China has a high stake in peace, stability and freedom of navigation and over-flight in the South China Sea. For its own sake and in the interest of all countries in the region, China is firmly committed to safeguarding freedom of navigation and over-flight in the South China Sea to which all countries are entitled under international law.

Coming back to my point, non-acceptance of and non-participation in the arbitration is the move China has taken to safeguard the international rule of law. The so-called arbitration is in itself a breach of international law. It only serves to impair regional efforts to build up confidence and trust and properly settle territorial sovereignty disputes.

Many countries and regional organizations as well as officials, experts and scholars have deplored the moves by the Philippines and the tribunal arbitration as an obvious intervention in the sovereignty of countries in the region. They see such moves as most unfortunate that would only exacerbate bad will between countries, and argue that “binary format of a court case” between two parties as such “can never do justice to all”.

It is encouraging to see that the mainstream international community is supportive of the “dual-track approach” initiated by China and ASEAN, i.e., disputes related to the South China Sea should be addressed properly through negotiations and consultations among countries directly concerned, while China and the ASEAN countries should work together to safeguard peace and stability in the South China Sea.

Let me highlight the Joint Statement on Strengthening Global Stability that China and Russia signed on 25 June 2016, which reaffirmed the principle of peaceful settlement of disputes. As declared by the Joint Statement, it is crucial for the maintenance of international legal order that the means and mechanisms for the settlement of all disputes are based on consent and applied in good faith and in the spirit of cooperation, and their purpose shall not be undermined by abusive practices.

The illegal, illegitimate and invalid arbitration initiated by the Philippines and the tribunal may be noisy and high-profile, yet it looks pale against historical facts and international law and order and the trend of the times. It is nothing but a farce in passing. As Mr. Wang Yi, Minister of Foreign Affairs of China, said early this year on the South China Sea issue, “history will eventually prove who is just passing through, and who is the real master.”