Some prevailing arguments and perceptions over the South China Sea issue are simply wrong
China and the EU have shared strategic interests in maintaining the freedom and safety of navigation and promoting stability and prosperity in the South China Sea area.
China and the EU are not disputing parties to each other, and the South China Sea issue is not an issue between the two.
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We sincerely hope the EU will strictly abide by its political commitment of respecting China’s sovereignty and territorial integrity and position on the South China Sea issue and refrain from taking any action that constitutes interference in the dispute. We also hope that the EU will play a constructive role by supporting the resolution of the disputes through negotiation between the directly concerned parties, and support the efforts of China and ASEAN to maintain peace and stability in the South China Sea.
Real issue is dispute over territorial sovereignty
The South China Sea issue has attracted much attention and media coverage.
Some accused China of changing the status quo in the South China Sea by taking unilateral actions that caused tensions in the region.
Some claimed that China’s refusal to recognise and accept the “award” on the South China Sea issued by the Arbitral Tribunal and established at the unilateral request of the Philippines would be “in violation of international law”.
These arguments are biased and unjustified.
As the waters of the South China Sea dispute have been so muddied up by certain intentional forces, it is highly necessary to help those who are truly interested in the maintenance of peace and stability in the South China Sea to get the facts and essence of the matter straight.
China enjoys sovereignty over the South China Sea Island (the Xisha, Nansha, Zhongsha and Dongsha Islands) and the adjacent waters since ancient times.
The Nansha Islands comprise over 230 islands, islets, sandbanks, rocks and shoals that are scattered along a 1,000 kilometer span from the southeast to the northwest of the Sea. This area was discovered and named by China as the Nansha Islands, over which China has continuously exercised sovereignty in a peaceful, effective and uninterrupted manner.
Beginning in the 20th century, western colonial powers, including France and Japan, coveted the Nansha Islands as they colonised Southeast Asia and invaded China. Due to strong resistance from China, most of their territorial ambitions ended in failure.
The Cairo Declaration of November 1943 proclaimed that Japan shall be stripped of all the islands in the Pacific and that all the territories Japan stole from the Chinese shall be restored to China. The 1945 Potsdam Declaration reiterated the proclamation of the Cairo Declaration.
It has been widely recognised by the international community that the Nansha Islands and the adjacent waters belong to China, and no country ever challenged this during a long course of history.
It was only since the 1960s and 1970s, especially after the discovery of abundant oil reserves in the Nansha waters and the coming into being of the United Nations Convention on the Law of the Sea (UNCLOS), that some countries in the region illegally occupied 42 of China’s islands and reefs as part of the Nansha Islands in violation of the charter and fundamental principles of governing international relations.
Based on this history, it can only be concluded that: 1. China is the victim of the South China Sea issue; 2. the real disputes are centered on sovereignty and rights over the Nansha Islands and the adjacent waters caused by illegal occupation; and 3. the other is the dispute over maritime delimitation caused by overlapping claims of maritime jurisdiction.
Territorial sovereignty dispute is beyond the scope of UNCLOS
There is the argument that the Philippines initiated the arbitration, in line with international law, and that it did not request the Arbitral Tribunal to decide on the issue of sovereignty but only to decide that some features in the South China Sea are low-tide elevations incapable of generating any maritime entitlement.
But there is more than meets the eye. The South China Sea arbitration against China is very deceptive. Abundant evidence has shown that the Philippines is actually focusing on territorial sovereignty and maritime delimitation. Its true objective is to deny China's sovereignty over maritime features of the Nansha Islands and to legitimize its unlawful stealing of maritime features of the islands.
So before talking of respecting and acting in accordance with international law, one needs clarify in the first place the subject matter in question and its essence and what international law is all about.
The South China Sea dispute is centred on territorial sovereignty. But the settlement of such kind of dispute is beyond the scope of UNCLOS and its arbitration procedures; and does not concern the interpretation or application of the Convention. Therefore, China seeks bilateral negotiation on the issue rather than third-party dispute settlement mechanisms.
As a basic principle of arbitration, for an arbitral award to be recognized and implemented, the arbitral tribunal that renders the award must have jurisdiction over the disputes. If the tribunal lacks jurisdiction, the arbitration proceedings shall not be continued. Even if they are carried forward, the decision would be invalid.
Application of compulsory arbitration is subject to preconditions
Compulsory arbitration is a new procedure established under UNCLOS and is subsidiary and complementary to negotiation and consultation. Its application is subject to several preconditions.
XU Hong, Director-General of the Department of Treaty and Law of the Ministry of Foreign Affairs of China, points out four preconditions for parties to initiate compulsory arbitration and for the arbitral tribunal to establish its jurisdiction.
First, compulsory arbitration can only be applied to disputes concerning the interpretation and application of the convention. If the subject matters are beyond the scope of UNCLOS, the disputes shall not be settled by compulsory arbitration. The issue of territorial sovereignty is one such case. Consequently states shall not initiate compulsory arbitration on disputes concerning it; and even if they do, the arbitral tribunal has no jurisdiction over them.
Second, a party to UNCLOS may declare in writing that it does not accept compulsory arbitration with respect to disputes concerning maritime delimitation, historic bays or titles, military and law enforcement activities, etc. Such exclusions are effective for other parties. With respect to disputes excluded by one party, other parties to the dispute shall not initiate compulsory arbitration; and even if it does, the arbitral tribunal has no jurisdiction over them.
China’s 2006 Declaration on Optional Exceptions made in accordance with Article 298 of UNCLOS excludes disputes concerning maritime delimitation and some other issues from the dispute settlement procedures. The unilateral initiation of arbitration by the Philippines is a violation of China’s right to seek dispute settlement of its own choice.
Third, if parties to a dispute have agreed on other means of settlement, no party shall unilaterally initiate compulsory arbitration; and even if it does, the arbitral tribunal has no jurisdiction over the disputes. Given that China and the Philippines have agreed to settle their disputes in the South China Sea through negotiations, the Philippines is precluded from initiating arbitration unilaterally.
Fourth, parties to a dispute are obliged to first exchange views on the means of dispute settlement. If a party fails to fulfill this obligation, it shall not initiate compulsory arbitration; if they do, the arbitral tribunal has no jurisdiction over the disputes. The Philippines failed to fulfill the obligation of exchanging views with China on the means of dispute settlement.
The reason why China neither accepts nor participates in the arbitration lies in the fact that the Arbitration Tribunal does not have jurisdiction over the issue and is illegal from the start. The so-called “award” issued by the tribunal does not have any legal validity. China is exercising its rights under international law and abiding by international rule of law.
China maintains and defends its legitimate position
Some people seem concerned about freedom of navigation and about militarization and over-flight in the South China Sea. Some have alleged that China’s island reclamations and construction work on its maritime features in the South China Sea is the main source of instability. But these perceptions are wrong.
China has been transparent about its actions in parts of the Nansha islands and reefs. It is nothing but maintenance and construction work needed to optimise their functions; improve the living and working conditions of personnel stationed there; preserve territorial sovereignty and maritime rights and interests; conducting maritime search and rescue, disaster prevention and mitigation; science and research; and other areas.
The maintenance and construction work does not target or affect any other country, nor does it impact the freedom of navigation and over-flight in the South China Sea. There has not been any complaints from the commercial shipping industry about inconveniences or insecurity and there has not been any increases in shipping insurance rates. Facts speak for themselves.
Stability is very much of Chinese interest. A huge volume of China’s import and export and energy supply travel through the South China Sea. China is more concerned than anybody else about freedom of navigation and over-flight in the area.
China is concerned about the real root cause of the continuing tension in the South China Sea, in particular the serious provocations by the United States politically and militarily.
The United States has asserted that it is against militarising the South China Sea. Yet, it has been sending more and more military vessels and aircrafts in close proximity to China’s coastal waters, constituting grave threats to China’s security on land and sea and threatening to escalate tensions in Asia.
Increasingly more Chinese people believe that the U.S. is no longer just an invisible hand behind the rising tension in the South China Sea. They are afraid that the deployments by the U.S., if not curbed, can only result in militarising the region.
Freedom of navigation, a concept originally conceived by the U.S. as a counter-measure against the freedom of navigation defined by the Convention, has been conveniently used by the U.S. to justify its military actions in the South China Sea and the freedom of movement of its navy around the world.
Equally disturbing is that the statements and actions by the U.S. would probably embolden some players to be even more aggressive and provocative.
It has been made public that the U.S. alliance obligations would be invoked if China responds to such provocations. As pointed out by H.E. Ambassador Cui Tiankai, “It could be possible that all this is intended to intimidate China, not to start a real conflict. But what if China is not intimidated? This approach is clearly a path to conflict. It is indeed a dangerous path and an irresponsible policy.”
A peaceful solution through dialogue and negotiation
China has consistently maintained its position in the South China Sea dispute, that is safeguarding national territorial integrity and maintaining regional peace and tranquility.
It has been firmly committed to resolving disputes peacefully through friendly consultations and negotiations with countries directly concerned.
Since the late 1990s, China has proactively engaged with some of the ASEAN parties, through bilateral consultation, to resolve sovereignty disputes over islands and reefs in question in order to maintain peace and stability in the region.
I am proud to say that as head of the Chinese delegation taking part in the first few rounds of Working Group Meetings to draft the Declaration on the Conduct of Parties in the South China Sea (DOC), I myself contributed in a small measure to such a significant endeavor.
From my personal experience working with ASEAN and its member states, China and ASEAN countries have the wisdom and capability to resolve disputes peacefully and maintain peace and stability in the South China Sea on their own.
China is working with ASEAN countries to implement the DOC and we are expediting the code of conduct in the South China Sea consultation.
With a view of securing common interests and objectives to ensure long-lasting peace and stability in the area, China has a few proposals.
Firstly, the disputing parties must peacefully resolve their disputes through negotiation in accordance with the DOC. Article 4 of the DOC makes it clear that the dispute must be resolved by the directly concerned states. The leaders of China and ten ASEAN countries signed off on the DOC, which is a binding commitment.
But regrettably, the Philippines has closed the door of dialogue with China. Still, China and other ASEAN countries are doing its best to implement Article 4 of the DOC.
Secondly, countries in the region, claimants or otherwise, that border the South China Sea must work together to maintain peace and stability and uphold the freedom of navigation in accordance with international law. China has played and will continue to play its responsible and constructive role.
Thirdly, it is hoped that countries outside of the region support the resolution of the disputes through negotiation between the directly concerned parties and support the efforts by China and ASEAN to maintain peace and stability in the area. Countries outside the region could play a constructive role.
“The future direction would very much depend on the perceptions and choices of the parties involved. If they choose to cooperate, they may all win. If they choose to confront each other, they may only head for impasse or even conflict and no one can benefit totally,” said Ms. Fu Ying and Mr. Wu Shichun in their article contributed to the National Interest.
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