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26th Nov 2022

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The South China Sea Arbitration: Illegal, Illegitimate and Invalid

  • "China’s position is firm and clear: non-acceptance", says Chinese ambassador to the EU Yang Yanyi. (Photo: Mission of China to the EU)

If I have to choose three words to reflect my views of the award of arbitration over the South China Sea disputes unilaterally filed by the Philippines against China, it would be illegal, illegitimate and invalid.

China's position is firm and clear: non-acceptance.

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Some in the West have again pointed their fingers at China and accused China of "thumbing its nose at international rules".

I cannot but dismiss these allegations and vilifications as groundless and unjustified. It is the Philippines and some other forces that are acting against international law. China is not.

Territorial sovereignty and maritime delimitation

The Philippines tried to seem like it was only requesting the Arbitral Tribunal to decide on the legal status of some features in the South China Sea, but failed to cover up what it was essentially about - territorial sovereignty and maritime delimitation.

Nor can it hide its obvious purpose of denying China's sovereignty over Nansha Islands and emboldening its illegal occupation.

It is common knowledge that territorial issues are subject to international law, rather than the United Nations Convention on the Law of the Sea (the UNCLOS/the Convention), and that disputes concerning maritime delimitation are excluded by China in its 2006 declaration on optional exceptions on Article 298 of UNCLOS.

Mr. Chris Whomersley, former Deputy Legal Adviser of the UK's Foreign and Commonwealth Office, made a good point when he said there was "no precedent for an international tribunal deciding upon the status of a maritime feature when the sovereignty… is disputed".

The Philippines' initiation of the arbitration is in total disregard of international law and the spirit of UNCLOS, and undermines the authority and sanctity of the Convention.

Bilateral negotiations

Settlement of territorial sovereignty dispute through bilateral negotiations is an established international practice and in full compliance with the principles and spirit of the UN Charter.

China and the Philippines were the first countries in the region that agreed to resolve the relevant disputes through negotiations.

In June 1986, during his meeting with Jose P. Laurel, the Philippines' Vice-President and Minister of Foreign Affairs, Mr. Deng Xiaoping put forward the principle of shelving disputes and seeking joint development. This was well received by the Philippines.

China and the Philippines later entered into a number of agreements that included an option for bilateral negotiations to resolve disputes.

The same spirit was enshrined in the Declaration on the Conduct of Parties in the South China Sea (DOC), a document of historic significance agreed upon by China and the ASEAN, including the Philippines.

I had the pride of working on the draft of the DOC and a few other agreements for years. For me, the thrust of these agreements cannot be clearer - disputes shall be settled in a peaceful and friendly manner through consultations on the basis of mutual respect. Third-party dispute settlement, including arbitration, is explicitly excluded.

The Philippines has turned on the commitment it made and, against the principle of Pacta sunt servanda, unilaterally initiated the arbitration by abusing the UNCLOS procedures.

Ex injuria jus non oritur

The Philippines and the Arbitral Tribunal are making a mock of international law - their act will not have any lawful and legal effect.

The long established principle of "Ex injuria jus non oritur", i.e. legal right or entitlement cannot arise from an unlawful act, sets out that the UNCLOS does not allow initiation of Arbitration as in the Philippines' case.

If a dispute arises between States Parties concerning the interpretation or application of the Convention, according to the UNCLOS, "the Parties shall proceed expeditiously to an exchange of views."

The Philippines never exchanged views with China concerning its arbitration submission. The so-called "disputes" in the arbitration are sheer fabrication and the whole thing is illegally imposed on China.

Peace and stability in the South China Sea

The so-called arbitration only serves to impair regional efforts to build up confidence and trust.

Since the end of the Cold War, the general trend in the region was to seek new ways to promote peace and prosperity. In recent years, that trend was interrupted if not obstructed.

As a Permanent Member of the UN Security Council, China has always stood for safeguarding peace and stability and promoting cooperation and prosperity. It is fully committed to resolving disputes peacefully through consultations and negotiations in accordance with international law and the spirit of the DOC.

Many countries, experts and scholars have also pointed out that the Philippines' actions and subsequent tribunal is encroaching on the sovereignty of countries in the region.

The illegal, illegitimate and invalid arbitration and tribunal may be noisy and high-profile, yet it looks pale against historical facts and international law.

Non-acceptance of and non-participation

Non-acceptance and non-participation in the arbitration is the move China has taken to safeguard the international rule of law.

As Mr. Wang Yi, Minister of Foreign Affairs of China, said about the South China Sea issue, "history will eventually prove who is just passing through, and who is the real master."

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.

We sincerely hope the EU will strictly abide by its political commitment of respecting China's sovereignty and territorial integrity and play a constructive role by supporting the resolution of the disputes through negotiation between the directly concerned parties.

Disclaimer

This article is sponsored by a third party. All opinions in this article reflect the views of the author and not of EUobserver.

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