South China Sea Arbitration: Illegal, Illegitimate and Invalid

DISCLAIMER: All opinions in this column reflect the views of the author(s), not of EURACTIV Media network.

H.E. Ambassador Yang Yanyi, Head of the Chinese Mission to the EU [Chinese Mission to EU]

Many in the West have pointed their finger at China and accused Beijing of “thumbing its nose at international rules” over the South China Sea territorial dispute, explains Ambassador Yang Yanyi.

H.E. Ambassador Yang Yanyi is the Head of the Chinese Mission 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. And China’s position is firm and clear: non-acceptance.

Not surprisingly, some in the West have again pointed their fingers at China and accused China of “thumbing 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.

Although the Philippines has struggled to appear that it is only requesting the Arbitral Tribunal to decide on the legal status of some features in the South China Sea, it failed to cover up the essence of it is 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 from China.

It is common knowledge that territorial issues are subject to general 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.

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”. Simply put, 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.

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.

If memory serves me correctly, 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, Vice-President and Minister of Foreign Affairs of the Philippines, Mr. Deng Xiaoping put forward the principle of shelving disputes and seeking joint development. This was well received by the Philippine side. China and the Philippines later entered into a number of agreements announcing the option of bilateral negotiations to resolve the relevant disputes.

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

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

To my shock, the Philippines turned its back on the commitment it had made and, against the principle of Pacta sunt servanda, unilaterally initiated the arbitration by abusing the UNCLOS procedures.

Talking about respecting international law, we need to remind ourselves of the long established principle of “Ex injuria jus non oritur”, i.e., legal right or entitlement cannot arise from an unlawful act, and that the UNCLOS does not allow initiation of Arbitration as in the Philippines’ case.

As I mentioned before, settling the relevant dispute through negotiations is the means China and the Philippines have agreed to in a series of bilateral documents and the DOC.

In the worst scenario, 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.”

Yet, 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.

Again, it is crystal clear that the Philippines and the Arbitral Tribunal are making a mock of international law, and their act will not have any lawful and legal effect.

The arbitration does more harm than good to good-neighborliness and peace and stability in the South China Sea.

Since the end of the Cold War, the general trend in the region is to seek a new concept and approach, in order to promote peace and prosperity. It is only in recent years that such positive trend was interrupted if not obstructed.

People may have different observations of the root cause of the present fluid situation. But one has to admit that the reaction from the other side of the Pacific to the positive development and achievements in Southeast Asia, especially the launching of the “Asia-Pacific rebalancing” in 2010, has had a profound impact on the region.

One needs to acknowledge the fact too, that as a Permanent Member of the UN Security Council, China has always stood for safeguarding peace and stability and promotion of cooperation and prosperity, and is fully committed to resolving disputes peacefully through consultations and negotiations in accordance with international law and the spirit of the DOC.

In this regard, I am particularly impressed by the Joint Statement on Promotion of International Law signed by China and Russia on 25 June 2016, which reaffirmed the principle of peaceful settlement of disputes.

Coming back to my point, non-acceptance of and non-participation in the arbitration is the move China has taken to safeguard the international rule of law.

The so-called arbitration is in itself a breach of international law. It only serves to impair regional efforts to build up confidence and trust and properly settle territorial sovereignty disputes.

Many countries, as well as experts and scholars have deplored the moves by the Philippines and the tribunal as an obvious intervention in the sovereignty of countries in the region, which would only exacerbate bad will between countries.

The illegal, illegitimate and invalid arbitration initiated by the Philippines and the tribunal may be noisy and high-profile, yet it looks pale against historical facts and international law, and the trend of the times.

It is nothing but a farce in passing. As Mr. Wang Yi, Minister of Foreign Affairs of China, said early this year on the South China Sea issue, “history will eventually prove who is just passing through, and who is the real master.”

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