China’s Non-acceptance of South China Sea Arbitration Justifiable and Lawful

Sun Baohong

Recently, the Philippines unilaterally initiated and obstinately pushed forward with international arbitral proceedings regarding the dispute with China in the South China Sea, stirring up international controversy. The Chinese government stands firm on its position not to accept or participate in the arbitration. As the Chinese ambassador, I am obliged to elaborate on the legal basis for China’s position and the truth of the matter to clear up the confusion.

Unilateral arbitration
First, the unilateral initiation of arbitration by the Philippines is a violation of the agreement with China and the United Nations Convention on the Law of the Sea (UNCLOS). UNCLOS explicitly stipulates that the state party has the right to seek dispute settlement of its own choice. Actually, China and the Philippines have already reached agreement in joint declaration, joint communique and the Declaration on the Conduct of Parties in the South China Sea (DOC) on resolving relevant disputes in the South China Sea through negotiations.
But the Philippines, without engaging in any negotiations with China on any claims in the arbitration, falsely claimed that it had exhausted bilateral means, and unilaterally initiated the arbitration. The behaviour of the Philippines undermines the international morality, international law and its basic principle Pacta sunt servanda (agreements must be kept), as well as the purpose, authority and integrity of UNCLOS.

Jurisdiction
Second, UNCLOS does not have jurisdiction over the disputes concerning territory and maritime delimitation between China and the Philippines. The Philippines’ requests are, in essence, about territorial sovereignty and maritime delimitation.

Territorial issues are subject to general international law, not UNCLOS. With respect to maritime delimitation, China’s declaration on optional exceptions in accordance with Article 298 of UNCLOS excludes disputes concerning maritime delimitation from compulsory dispute settlement procedures provided for in UNCLOS- more than 30 countries have made similar declarations, including four permanent members of the UN Security Council except the US which has not ratified UNCLOS.
China’s non-acceptance and non-participation in the arbitration conforms to international laws, UNCLOS included.

The Arbitral Tribunal’s forceful handling of the case and exercise of jurisdiction is willful expansion and abuse of power in nature.
The acts of the Arbitral Tribunal violated the provisions of UNCLOS and deviated from the purpose of peaceful settlement of international disputes.

Military muscles
Third, some countries from outside the region, which are not the parties concerning the South China Sea issue, out of their political and military calculations and regardless of the sovereignty, security and interests of littoral countries, flex military muscles, conduct close-in reconnaissance and even go as far as to send military vessels and aircraft into the waters and airspace in neighbouring China’s South China Sea islands.
Moreover, they instigate disputes among the regional countries and support certain countries in the region to magnify and complicate the disputes to raise tensions in the South China Sea for their own parochial interests.

These irresponsible actions, which are typical double standards, not only sabotage the endeavour of the countries directly concerned, including China, to resolve disputes peacefully, but also pose threats to the freedom of navigation and overflight, as well as peace and security in the South China Sea. The root cause of the South China Sea issue is the invasion and illegal occupation by certain countries of some islands and reefs of China’s Nansha Islands. But China, the biggest victim on the South China Sea issue, has all along exercised great restraint and committed itself to resolving disputes through negotiations and consultations.

China supports and advocates the “dual track” approach initiated by ASEAN Member States to handle the South China Sea issue, i.e. while the relevant disputes are to be resolved through negotiations and consultations between the states directly concerned on the basis of respecting historical facts and according to international law, China and ASEAN Member States will work together to maintain peace and stability in the South China Sea. In recent years, maritime cooperation under DOC and the consultations of the Code of Conduct in the South China Sea (COC) is progressing through our joint efforts.

The South China Sea has maintained peace and stability on the whole and the freedom of navigation and overflight has never seen any problems. During the presidency of Gloria Arroyo, the Philippines conducted cooperation on three-dimensional seismic exploration with Vietnam and China in the South China Sea.
China’s proposals

In the South China Sea issue, China’s proposal of “sovereignty belongs to China, shelve disputes and pursue common development” is feasible.
We believe that the regional countries have the wisdom and capacity to resolve the South China Sea issue properly. Recently, China’s Foreign Minister, Mr. Wang Yi. visited Brunei, Cambodia and Laos and reached a four-point consensus.

These are that “Disputes over some Nansha islands and reefs are not an issue between China and ASEAN, and should not affect China-ASEAN relations;
The right enjoyed by sovereign states to choose on their own ways to solve disputes in line with the international law should be respected, and an imposition of unilateral will on others is opposed;
Disputes over territorial and maritime rights and interests should be resolved through dialogues and consultations by parties directly concerned under Article 4 of DOC;

China and ASEAN countries are able to jointly maintain peace and stability in the South China Sea through cooperation.” China State Councillor, Mr. Yang Jiechi visited Malaysia, and both sides agreed to settle South China Sea-related issues through DOC and to speed up the completion of COC.
Both China and ASEAN wish to reaffirm the consensus in DOC.

Countries outside the region should play a constructive role in supporting our efforts in maintaining peace and security in the South China Sea rather than the other way round. We are delighted that the 7th Ministerial Meeting of China and Arab States Cooperation passed the Doha Declaration, which stressed that Arab states support a peaceful settlement of territorial and maritime disputes between China and relevant countries through friendly consultation and negotiation based on bilateral agreements and consensus among regional countries.
The right of sovereign states and signatory parties to UNCLOS to independently choose the way to settle disputes in accordance with law must be respected.

Nansha Islands projects
Recently, China has conducted constructions on some islands and reefs of Nansha Islands to improve the living and working conditions of the Chinese staff stationed there and provide public goods and services to the regional countries. The facilities built there, once completed, will be open to regional countries for visits and use.

China also proposes to set up a cooperation mechanism for littoral countries in the South China Sea to minimise differences and expand common interests through cooperation. China’s position on the South China Sea issue is consistent and clear-cut.

We are committed to resolving the disputes in a peaceful manner through negotiations and consultations, to managing the disputes by establishing rules and mechanisms, to seeking win-win outcome through joint development and cooperation, and to upholding freedom of navigation and overflight, as well as peace and stability in the South China Sea. It’s my firm belief that China, with the increasing national strength, will provide more public goods to regional countries, play a more active role in maintaining peace and security in the South China Sea, and promote cooperation among littoral states, as well as the regional economic development.

The South China Sea arbitration initialled by the Philippines is only a noise in the big chapter of cooperation in the South China Sea and will not hamper the expanding collaboration between China and other littoral states.
– Professor Sun Baohong, Chinese Ambassador to Ghana, contributes this article from Accra.
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