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14Dec15

China's Rejection of South China Sea Arbitration Is Lawful and Justifiable

On Oct. 29, the Arbitral Tribunal established at the unilateral request of the Philippines rendered award on jurisdiction and admissibility of the South China Sea arbitration. The following day, the Chinese Foreign Ministry issued a statement declaring that the award is null and void and has no binding effect on China. Disregarding the fact that the essence of this arbitration case is territorial sovereignty and maritime delimitation and related matters, maliciously evading the declaration on optional exceptions made by China under the United Nations Convention on the Law of the Sea (UNCLOS) concerning non-acceptance of third-party compulsory dispute-settlement procedures, and negating the consensus between China and the Philippines on resolving disputes through negotiations and consultations, the Philippines and the Arbitral Tribunal have abused relevant procedures, obstinately pushed ahead with the arbitration, and severely violated China's legitimate rights.

Previously, the Position Paper of the Government of the People's Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines (hereinafter referred to as the "Position Paper") had reiterated China's solemn position of non-acceptance of and non-participation in the arbitration and elaborated in a comprehensive and in-depth manner the legal ground on which China believes that the Arbitral Tribunal has no jurisdiction on the matter. Some of the related issues need to be further explained.

First, non-acceptance of and non-participation in the arbitration is a justifiable choice made by the Chinese government under international law to safeguard its legitimate rights and interests. The root cause of the dispute in the South China Sea between China and the Philippines is the illegal occupation of some of China's South China Sea islands and reefs by the Philippines and its attempt to legalize its illegal acts through means such as domestic legislation, law enforcement and international arbitration.

Since the 1970s, the Philippines has illegally occupied the Zhongye (Thitu) Island, Mahuan Island and other islands and reefs in China's Nansha (Spratly) Islands, and tried to include them in its map through domestic legislation, despite the fact that the above sparely populated islands and reefs have been China's territory since ancient times. The Philippines has made unlawful claims on the Huangyan Island in China's Zhongsha Islands and its military carried out violent "law enforcement" measures to punish Chinese fishermen operating legally in the area. Now, the international arbitration is an attempt by the Philippines to serve its political agenda through legal procedures.

Second, non-acceptance of and non-participation in the arbitration conforms to the relevant provisions of the UNCLOS and the declaration on optional exceptions made by China in 2006. It constitutes no contempt of international law or the international tribunal. In international practice, non-acceptance and recognition of and non-participation in international jurisdiction and arbitration is quite common.

Third, the essence of this arbitration case is the territorial sovereignty of some South China Sea islands, which is an issue left over from history. The dispute is caused by complicated historical and cultural factors. It is not just a dispute over the relevant legal issues, or about application and explanation of a certain legal provision. Therefore, it should be resolved not only in accordance with law, but also through respect for history. The settlement of the South China Sea dispute needs to take into account the following historical factors.

One factor is that China is the first country to discover, name and develop the South China Sea islands, and it is the first country to exercise sovereign jurisdiction over the islands and has done so continuously. This can be traced back to more than 2,000 years ago. Since the founding of the People's Republic of China, the government has taken a series of legislative, law enforcement and other measures to exercise its sovereignty and defend its rights and interests in the South China Sea.

Another factor is that most countries and international organizations have explicitly recognized China's sovereignty over the South China Sea islands. Countries around the South China Sea all recognized China's sovereignty there before the 1970s. According to the principle of estoppel in international law, the recognition by the relevant countries of China's sovereignty over the South China Sea islands is legally binding and they are not supposed to go back on their word.

Fourth, this arbitration involves considerable US interference. The US takes the South China Sea issue as an excuse to push forward its rebalance-to-Asia strategy. On the one hand, the US claims that it does not take sides in the South China Sea dispute, but on the other, it has not only sent warships to the waters off China's Nansha islands and reefs for provocative purposes, but also supported the Philippines, one of its military allies, in challenging China over the South China Sea issue. The arbitration has been staged mainly by a US legal team, and even the litigation fees were funded by American agencies. On Dec. 5, 2014, two days before the release of China's Position Paper, the US Department of State issued a report entitled "Limits in the Seas -- China: Maritime Claims in the South China Sea". The focus of the report is to decry China's dotted line of the South China Sea. The US report turns a blind eye to basic facts and international jurisprudence. It is a violation of the US commitment of not taking position or taking sides on the South China Sea issue, and is a clear indication of the US intention to impact the arbitration and support the Philippines.

Fifth, the arbitration will not contribute to the settlement of the South China Sea issue. In the final analysis, win-win cooperation and common development is the right way to resolve the issue. Given the complexity of the South China Sea issue and the problems of the arbitration itself, it will not help resolve the South China Sea dispute. On the contrary, it will only further complicate the issue.

There are many examples, such as the temple of Preah Vihear case between Thailand and Cambodia, in which vague or unfair international judicial or arbitration rulings escalated disputes and even triggered armed conflicts.

The settlement of the South China Sea dispute calls for more efforts, patience and political wisdom from all parties concerned. Before the issue is resolved, the parties concerned need to engage in cooperation and work together to maintain peace and stability in the South China Sea and create conditions for the ultimate resolution of the issue. This principle has been confirmed in the Declaration on the Conduct of Parties in the South China Sea, a series of joint statements between China and the Philippines and other documents. The dual-track approach put forward by Brunei and supported and promoted by China has become the consensus of China and ASEAN countries on handling and management of the South China Sea issue. The dual-track approach means that the relevant dispute should be resolved peacefully by countries directly concerned through friendly consultations and negotiations, and peace and stability in the South China Sea should be jointly safeguarded by China and ASEAN countries. The action of the Philippines to unilaterally initiate the arbitration violates the consensus reached by the vast majority of countries and goes against the prevailing trend of development in the South China Sea.

China and other claimants are all developing countries with economic and social development as their main task. As its economy grows, China has provided much more investment and economic assistance to the Philippines and other ASEAN countries since 2007. In 2011, China set up a 3 billion yuan China-ASEAN Maritime Cooperation Fund to promote maritime cooperation between China and ASEAN countries. China has also provided hefty credit loans to almost all ASEAN countries. China's initiatives of developing the 21st century maritime Silk Road and establishing the Asian Infrastructure Investment Bank and other major international economic cooperation measures have brought benefits to ASEAN countries, the Philippines included. Against such a background of international cooperation and development, it is a wise choice to seek a solution of the South China Sea issue acceptable to all parties through negotiations and consultations and strive for mutual benefit and win-win results.

Wang Hanling is Professor and Director of the National Center for Ocean Affairs and the Law of the Sea, Chinese Academy of Social Sciences.

[Source: By Wang Hanling, China US Focus, Hong Kong, 14Dec15]
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