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The dangerous arbitration of Beijing-Manila dispute

  • Xie Feng
    Xie Feng

    China's ambassador to Indonesia

Jakarta | Thu, June 9, 2016 | 09:47 am
The dangerous arbitration of Beijing-Manila dispute In this May 6 file photo, soldiers from the Chinese People's Liberation Army (PLA) Navy watch as the USS Blue Ridge arrives at a port in Shanghai. Seeking to calm escalating tensions in the South China Sea, top generals from China and the U.S. spoke by phone on May 12, and said they were ready to work out an effective mechanism to prevent confrontation and maintain stability in the region. (Associated Press/-)

The arbitration unilaterally initiated by the Philippines is against international law, its principles and practices. Arbitration is not the only, much less primary choice to peacefully settle international disputes. Compulsory arbitration, established under the UN Convention on the Law of the Sea ( UNCLOS ), is defined as subsidiary and complementary to negotiation and consultation. Its application is subject to strict preconditions.

First, compulsory arbitration can only be applied to disputes concerning the interpretation and application of the UNCLOS, and not those related to territorial sovereignty. Though the Philippines packaged its appeal and asked the arbitral tribunal to rule the legal status of some of China’s islands and reefs, its real objective is to deny China’s territorial sovereignty over maritime features of the Nansha Islands. 

Such territorial issues are obviously not subject to the UNCLOS. On Jan. 23, 2013, the day after the initiation of arbitral proceedings, the Philippine Department of Foreign Affairs released a Q&A on the arbitral proceedings. It described the purpose of the case as “to protect our national territory and maritime domain”.

Second, the defining of legal status and maritime rights of islands and reefs submitted for arbitration by the Philippines cannot be separated from maritime delimitation, which has been excluded by China through its 2006 Declaration in accordance with Article 298 of UNCLOS and consequently is not subject to compulsory arbitration. Over 30 countries have made similar declarations. 

Among the five permanent members of the UN Security Council, four have made the declaration on optional exceptions; the only one that hasn’t done so is the US, which has not ratified UNCLOS. With respect to disputes excluded by one party, the arbitral tribunal has no jurisdiction over them.

Third, China and the Philippines have reached agreement on settling disputes over the South China Sea through negotiations by signing a number of bilateral and multilateral documents, including joint statements and the Declaration on the Conduct of Parties in the South China Sea ( DOC ). 

Though bilateral means have not at all been exhausted, the Philippines unilaterally initiated the arbitration, which breaches bilateral understanding, and is against the basic principle of pacta sunt servanda ( “agreements must be kept” ) in international law.

Fourth, the Philippines’ arbitration has violated the international practice that both parties concerned shall reach consent before resorting to arbitration. According to the Declaration on Principles of International Law concerning friendly relations and cooperation among states, adopted by the UN General Assembly in 1970, “the parties shall agree upon such peaceful means as may be appropriate to the circumstances and nature of the dispute”. 

Indonesia’s presidential special envoy for Indonesian-Malaysian maritime delimitation Eddy Pratomo also believes that for arbitration to occur, “both disputing sides have to issue a joint declaration to bow down to the rules of engagement set out by the international judicial body”. However, the Philippines has never exchanged views with China on the means of dispute settlement, not to mention reaching any consent or agreement. The arbitration unilaterally initiated by the Philippines is a typical abuse of compulsory arbitral procedures. The present arbitral tribunal should not have come into existence in the first place. 

Nonetheless, the then president of the International Tribunal for the Law of the Sea, a Japanese national, went to great pains to form a temporary tribunal. Moreover, with four of the five arbitrators from Europe, it can hardly be considered as universally representative. 

The temporary tribunal fully embraced the Philippines’ claims, expanded and abused its power at will. Since the tribunal has committed such serious mistakes in terms of procedure applicability, law applicability, facts and evidences in the trial, the ruling manifestly has no legal binding force.

The Philippines’ abuse of compulsory arbitral procedures is directed against China, however its consequences will undermine the international rule of law and regional peace. If the Philippines’ arbitration set a precedent, any disputes, whether concerning territorial sovereignty or maritime delimitation, could be submitted for arbitration in the future. If the arbitral tribunals, like the present one, decide ultra vires, the declarations excluding compulsory arbitration made by over 30 countries will be rendered completely meaningless. 

Also it will discredit the dispute settlement mechanisms under the UNCLOS, and undermine its international order of the sea. The Philippines will be emboldened to single out another neighbor’s island or reef and unilaterally bring it to arbitration, leading to disastrous consequences on the peaceful settlement of disputes.

We have reason to remain vigilant of the dangerous effects of the arbitration. First, it will play down the role of DOC that has served as an “anchor of stability”. The arbitral tribunal disavowed the legal binding force of the DOC signed by China and 10 ASEAN countries, posing direct challenge to the “rules of the South China Sea” as well as the right way of peacefully resolving disputes advocated and upheld by China and 10 ASEAN countries, and thus put up new barriers for future consultations on a Code of Conduct in the South China Sea ( COC ). 

Second, ASEAN is faced with the dilemma of taking sides between China and the Philippines. Some countries outside the region are now encouraging ASEAN to make a joint statement on the arbitration, posing a difficult question for ASEAN as its solidarity and centrality will be adversely affected. 

Third, it will give a green light to countries outside the region to further interfere in the South China Sea issues. Some countries outside the region have taken advantage of the Philippines to orchestrate the farce, by initially fueling the fire and then publicly endorse the arbitration. 

Evidently they have their own agenda: to further interfere in the South China Sea issue, increase military presence in the region, and push forward the “rebalancing” strategy. What is at stake is the solidarity, cooperation, stability and prosperity that Asian countries have enjoyed for over 20 years. Such a prospect is nothing China or ASEAN countries ever wish to see.

China does not accept nor recognize the arbitration imposed by the Philippines unilaterally and illegally. By exercising the legitimate right enjoyed by a sovereign state, China aims to safeguard the solemnity and integrity of international law, including UNCLOS, and to oppose the abuse of the compulsory arbitration procedures. 

No matter what it turns out to be, the ruling will in no way change the history and fact that China has sovereignty over the South China Sea islands and their adjacent waters, will in no way weaken China’s determination and volition to safeguard its sovereignty and maritime rights and interests, and will in no way affect China’s policy and position of resolving disputes through direct negotiations. The door of dialogue with the Philippines is always open, but we will never accept any claims on the basis of any unlawful ruling. We’re counting on the international community to uphold justice and make joint efforts to stop the Philippines from playing with fire. 

The South China Sea is the common home for regional countries. We are ready to make concerted efforts with ASEAN countries, including Indonesia, on the full and effective implementation of the DOC, practical maritime cooperation and COC consultations, and safeguard the hard-won peace and prosperity of the region.

 

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The writer is China’s ambassador to Indonesia.

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