The following are excerpts from a speech by Xiao Jianguo, Deputy Director General, Department of Boundary and Ocean Affairs, Ministry of Foreign Affairs of China, at the International Seminar on the Application of Compulsory Dispute Settlement Procedures under UNCLOS to the South China Sea Arbitration between the Philippines and China held at Wuhan University, China, on April 16.
I. What is the basic position of china towards the arbitration case unilaterally initiated by the Philippines?
In January of 2013, the Philippines unilaterally initiated the arbitration of the SCS under Part 15 and Annex 7 of UNCLOS and pushed it tenuously since then. China’s position of neither participating nor accepting is consistent and clear-cut. In December of 2014, China released the Position Paper on the matter of jurisdiction in the SCS arbitration, explicitly elaborating on China’s grounds to reject the jurisdiction of the arbitral tribunal. In October of 2015, China issued a statement on the award delivered by the tribunal on the matter of jurisdiction and admissibility, declaring that the award was null and void, and that it is not binding on China. China’s position can be summarized as 4-NOs, No Acceptance, No Participation, No Recognition and No Implementation.
II. China’s position is fully in accordance with international law, while the arbitration case is against international law.
First, the nature of the subject matter of the arbitration is the territory dispute caused by the Philippines’s illegal occupation of some islands and reefs of China’s Nansha Islands since the 1970s and maritime delimitation disputes with the evolution of the contemporary law of the sea.
(1) The issue of territorial dispute is out of the scope of UNCLOS, rather it is governed by the UN Charter and general international law. In this regard, the South China Sea Islands are Chinese territory with ample legal base and historical evidence. From the ancient times, the successive Chinese governments have exercised jurisdiction over them through administration, military patrols, fishing and development activities and so on. During the WWII, Japan seized Xisha and Nansha Islands. When the war ended, Japan returned the Chinese territories it had stolen to China in accordance with the Cairo Declaration and the Potsdam Proclamation in the 1940s. China recovered the Nansha islands, pronounced its sovereignty and reinforced jurisdiction through such measures as official renaming, publishing maps, setting up administrative units and stationing troops. In the several decades that followed, it was widely recognized by the international community that the Nansha islands belongs to China, and not a single country ever raised objections.
The scope of the Philippines territory was clearly limited by the treaties during the colonial period between the United States, Spain and United Kingdom which did not include any of China’s maritime features in the South China Sea.
Since the 1970s, after a release of the potential oil and gas reserve in the South China Sea, the Philippines pushed for expansionism beyond its inherent territory limit by sending troops to occupy eight maritime features of China’s Nansha Islands and sought to permanently station there and “legalize” the occupation through various means, such as construction of military facilities, ports and airports, administrative establishment, unlawful designation of the so-called “Kalayaan Island Group”. The Philippines also attempted to further invade and occupy more maritime features of China’s Nansha Islands by “running aground” an old naval ship at Ren’ai Jiao in 1999.
In April 2012, the Philippines sent a warship into the adjacent waters of China’s Huangyan Island, forcefully detained and harassed the Chinese fishermen and fishing boats conducting normal operation there, deliberately triggered the “Huangyan Island incident”. After the incident, the Philippines finally made up its mind to bring the bilateral disputes concerning SCS to the compulsory settlement under UNCLOS.
The Philippines’ activities mentioned above have violated the UN Charter and general international law, and seriously encroached upon China’s territory sovereignty. The Chinese government has always been firmly opposed to these actions.
Looking back into the history, it’s not hard to conclude that it is the Philippines’ illegal occupation and intrusion that led to these disputes. Even today’s arbitration unilaterally initiated by the Philippines is actually the continuation and development of its territorial expansionism in the form of so-called legal means.
(2) In terms of maritime delimitation, China made a declaration in 2006 in accordance with Article 298 of UNCLOS, excluding disputes such as maritime delimitation, historic title or rights, military activities from the compulsory proceedings. China’s declaration of the optional exclusion means it will not accept the compulsory mechanism of Part.15 of UNCLOS in dealing with the overlapping maritime claims or delimitation issues. More than 30 countries have made similar statements. All these declarations made by China and other countries constitute an integral part of the UNCLOS and should be effective and respected. In disregard of the choice made by China, the Philippines violated the right that China enjoys as a state party to UNCLOS to seek dispute settlement of its own choice, violated the UNCLOS and damaged the integrity and delicate balance of the UNCLOS.
Second, both China and the Philippines have committed themselves many times to resolving disputes between them through bilateral negotiations and consultations. According to China’s legislations and practice, such as notes verbales to UN in 2009 and 2011, China’s Nansha islands has its own territorial sea, contiguous zone, EEZ and continental shelf. Meanwhile China enjoys historic title and rights in the SCS. The above claims really overlap with those of the Philippines. Then how to solve this problem between the two countries? As I mentioned before, the third party settlement is excluded, which also means China advocates conducting direct negotiation and consultation based on international law including UNCLOS to get an equitable solution. Before the final solution is reached, both sides shall exercise self-restraint and try to make a provisional arrangement. In fact, negotiation and consultation is the best and effective way to a durable solution. For example, in 2000 China and Vietnam concluded the delimitation treaty in Beibu Bay through decades of bilateral talks. Currently China is engaging in the delimitation talks of the Yellow Sea with Republic of Korea. Looking at a bigger picture, China has concluded 12 boundary lines with 14 land neighboring countries through equal and friendly negotiations.
In this regard, China and the Philippines both actually have reached common understanding. There has been a long-standing agreement between China and the Philippines on resolving their disputes in the South China Sea through friendly consultations and negotiations. From 1995 to 2011, there were at least six joint statements between the two countries repeatedly reaffirming negotiations as the means for settling relevant disputes. The mutual understanding was also reflected in the Art. 4 of the Declaration on the Conduct of Parties in the South China Sea (“DOC”), jointly signed in 2002 by parties including China and the Philippines, emphasizing that negotiations shall be conducted by the states directly concerned. All these obviously have produced the effect of excluding any means of third party settlement. By initiating the arbitration, the Philippines violated the agreement to resolve disputes through negotiations and was an act of dishonoring its commitment, running counter to pacta sunt servanda (pact must be honored), a basic principle in international law.
Third, the basic requirements for launching the compulsory procedure of UNCLOS are not satisfied. According to Art.280, 281, 282 and 283 of UNCLOS, there are several procedural preconditions, that is: the means of their own choice prevails, and such means shall be first resorted to and exhausted, when a dispute concerning the interpretation or application arises, parties shall proceed to an exchange of views. Given the fact that China and the Philippines have made a clear choice of the means and procedures of settling their disputes, and given that the Philippines has never fulfilled its obligation to have meaningful talk or fully exchange views with China, the Philippines violated UNCLOS and abused the procedures under it.
Fourth, the Tribunal has taken biased standing in favor of the Philippines, acting as the Philippines’ agent, having lost its ground of impartiality and justice. In the award of jurisdiction and admissibility, one can see there are lots of loopholes on the legal reasoning and facts finding, full of controversies. The Tribunal actually took a careless, negligent and irresponsible jurisprudence approach without a thorough and careful scrutiny. Let’s look at two examples. First, it is commonly recognized that a geographical feature at sea is meaningless in civilized society without a sovereign or an owner. Only if it is crowned a sovereign, can it generate maritime entitlement. That is why in the international law and practice, the legal status of maritime features and territory sovereignty as well as maritime delimitation are inseparable. Judge Alfred H. Soons, a member of the tribunal co-wrote a paper years ago stating that “entitlement to maritime spaces forms an inherent part of boundary delimitation”. But to our surprise, the tribunal only adopted the Philippines’ plea and reasoning without any hesitation. Second, the Tribunal turns a blind eye towards the wholeness or an archipelago of Nansha, a geographical, economic and political entity that has historically been regarded as one unit. But even if it takes a clinical and isolated view, the existence and full entitlement of Taiping Dao(Itu Aba Island) should not be neglected and shall be seriously taken into account. Recently Taiwan Ma Ying-jeou’s administration has already given a detailed description of Taiping Dao.
Based on what I said above, the compulsory settlement procedure laid out in the UNCLOS does not apply to the disputes between China and the Philippines. The tribunal set up thereof has no jurisdiction. Its forceful handling of the case and exercise of jurisdiction is a willful abuse of power in nature, it is unlawful from the very beginning. China will not accept or recognize such arbitration in any way.
III. Prospect and China’s possible reactions.
Disputes between China and the Philippines over SCS are complicated and comprehensive. It is hazardous to confine the disputes settlement solely to the legal approach, only creating more problems than solving them. This case brought forth by the Philippines is not simply a legal case, it is a political provocation under the cloak of law with some western power behind it. The Philippines and the arbitration tribunal intentionally circumvented China’s declaration, and packaged disputes of territory and maritime delimitation into disputes of interpretation and application of UNCLOS. What the Philippines intends to do is to use the arbitration to deny China’s territorial sovereignty and maritime entitlement in SCS, to seek support for its own illegal occupation of some parts of China’s Nansha Islands, and even to undermine China’s image. The arbitration has gravely hindered mutual political trust between China and the Philippines, and undermined the amicable atmosphere for China and ASEAN member states to implement the DOC and to consult on the proposed COC. The move constitutes a serious threat to regional peace and stability. China firmly opposes the arbitration case, will neither accept nor participate in the arbitration process. No matter what the final ruling will be, China will not recognize or implement it. China will remain committed to resolving the disputes peacefully through negotiation and consultation, and will not accept any country’s attempt to use such a ruling as a basis for consultations with China on the SCS issue, nor will China accept any positions or activities proposed by any country based on such a ruling.
The South China Sea issue involves a number of countries, and it is not easy to solve it in a short time. Up to the present, the literal countries concerned are still working closely together and SCS is still peaceful and stable in general. China remains committed to maintaining peace and stability of the SCS, upholding the rule of law in the SCS and safeguarding the freedom of navigation and overflight enjoyed by all countries in accordance with international law in the SCS.