By PANG Sen

Truth you need to know about the South China Sea 

May 24, 2016

These days the issue of the South China Sea draws the attention of the world media because the Arbitral Tribunal based in the Hague is expected to make a decision in the near future on the arbitration initiated by the Philippines. Some western media described this case as a righteous act by a small country to protect its rights and interests, and portrayed China as a villain defying international law. However, is this really the case? 

 One thing needs to be clarified is that the Nansha Islands in the South China Sea has been China’s territory since ancient times. Every Chinese government has exercised effective jurisdiction over it. During World War ?, the Nansha Islands was invaded and occupied by Japan. At the end of the war, it was recovered by China in accordance with the Cairo Declaration and the Potsdam Proclamation. It was widely recognized by the international community that the Nansha Islands belongs to China in the following decades. 


The Philippines used to clearly admit that its territory does not contain the Nansha Islands and Huangyan Dao. The scope of the Philippines’ territory is defined by the 1898 Treaty of Peace Between the United States of America and the Kingdom of Spain (Treaty of Paris), the 1900 Treaty Between the Kingdom of Spain and the United States of America for Cession of Outlying Islands of the Philippines (Treaty of Washington) and the 1930 Convention Between the United States of America and Great Britain Delimiting the Boundary Between the Philippine Archipelago and the State of North Borneo (1930 Convention between the US and UK). The above documents all confirmed that 118 degree east longitude is the western limit of the Philippine territory. China’s islands and reefs in the South China Sea, including the Nansha Islands and Huangyan Dao, all locate west of that line and well beyond the scope of the Philippine territory defined by the above-mentioned treaties. However, the Philippines started to claim sovereignty over some islands and reefs of China’s Nansha Islands since 1970s. 


To solve the territorial disputes between the two countries, China has been sincerely committed to negotiations with the Philippines. The two countries have agreed to solve the South China Sea issue through bilateral negotiations and consultations, and a series of bilateral documents were signed accordingly. The Declaration on the Conduct of Parties in the South China Sea (DOC) jointly signed by China and ASEAN Member States, including the Philippines, makes it clear that “The parties concerned undertake to resolve their territorial and jurisdictional disputes by peaceful means...through friendly consultations and negotiations by sovereign states directly concerned.” The Philippines also issued a statement with China in 2011 undertaking to resolve disputes through negotiations and consultations. 


The alleged legal basis of the arbitration is the 1982 United Nations Convention on the Law of the Sea (the Convention) and the Philippines’ requests are about territorial sovereignty and maritime delimitation in nature. However the Convention clearly stipulates that territorial issues are not subject to the Convention and consequently the compulsory arbitration cannot be initiated under it. Furthermore, a State Party to the Convention is entitled to declare not to accept the compulsory arbitration should the disputes involve maritime delimitation. This exclusion also has legal effect to the other State Parties. In 2006, China made the declaration on optional exceptions in accordance with the Convention, excluding disputes concerning maritime delimitation from the dispute settlement procedures under the Convention. 


Meanwhile, according to the Convention, compulsory arbitration cannot be initiated and the Arbitral Tribunal has no jurisdiction if the states concerned have chosen other means to settle the disputes. Since there has been a long-standing agreement between China and the Philippines to settle the disputes in the South China Sea through negotiations, any third-party settlement including arbitration has been excluded thereof, which has been announced by both China and the Philippines repeatedly. 


Finally, and as a matter of procedure, the arbitration should not be initiated before the obligation of exchange of views of dispute-settling means is fulfilled by the states concerned. The arbitration initiated by the Philippines is null and void as China has never been informed before the case was presented to the Tribunal. 


The reason that the Chinese Government will neither accept nor participate in the arbitration initiated by the Philippines is not because it shies away from the lawsuit, but because it knows that the compulsory arbitration will neither solve the issue, nor help narrow the gap between China and the Philippines. Political commitment of the states concerned and bilateral negotiations are the only feasible way to find solutions. 


Many states have expressed opposition to the compulsory application of the third party settlement to the South China Sea. As a peace-loving country, China will continue to work with states concerned to address the disputes and safeguard the peace and tranquility of the South China Sea.

 

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