NEWSLETTER Issue VII of 2016
2016/06/28

 

Why does Chinese Government

Neither accept nor participate in the arbitration

Initiated by the Philippines?

 

 

The Philippines' unilateral initiation of the arbitration is against international law, the Arbitral Tribunal set up thereof has no jurisdiction on the disputes between China and the Philippines.  

 

First, the Philippines dishonored its commitment and violated the agreement to resolve disputes through bilateral negotiations. "Pacta sunt servanda" is a basic principle in the international law. China and the Philippines have already reached agreement in bilateral documents on resolving relevant disputes in the South China Sea through bilateral negotiation. Paragraph 4 of the Declaration on the Conduct of Parties in the South China Sea(DOC), signed by China and ASEAN Member States including the Philippines in 2002, also clearly stipulates 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." On that basis, China and the Philippines have chosen negotiation as the mean to resolve relevant disputes and excluded third-party settlement, including arbitration. The Philippines also issued a statement jointly with China in 2011 undertaking to resolve disputes through negotiations and consultations. Just one year later, however, the Philippines initiated arbitration unilaterally without informing China in advance or acquiring China's consent, an act which contravened the Philippines' international obligation to China.

 

Second, the Philippines violated The United Nations Convention on the Law of the Sea (UNCLOS) and abused the arbitral procedures provided for by UNCLOS. Article 280 of UNCLOS says, "Nothing in this Part impairs the right of any States Parties to agree at any time to settle a dispute between them concerning the interpretation or application of this Convention by any peaceful means of their own choice." Article 281 says, "If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed to seek settlement of the dispute by a peaceful means of their own choice, the procedure provided for in this Part apply only where no settlement has been reached by recourse to such means and the agreement between the parties does not exclude any further procedure." Article 283 says, "When a dispute arises between States Parties concerning the interpretation or application of this Convention, the parties to the dispute shall proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means."Given the fact that China and the Philippines have made a clear choice on the means and procedures of settling their disputes, third-party settlement procedures provided for in UNCLOS shall not apply.

 

Third, the unilateral initiation of arbitration by the Philippines is a violation of the right to seeking dispute settlement of its own choice that China enjoys as a State Party to UNCLOS. The Philippines' requests are, in essence, about territorial sovereignty and maritime delimitation. The declaration on optional exceptions China made in 2006, in accordance with Article 298 of UNCLOS, excludes disputes concerning maritime delimitation, historic bays or titles, as well as military and law enforcement activities from the dispute settlement procedures provided for in UNCLOS. About 30 countries, including China, have made similar declarations, which have formed an integral part of UNCLOS. The Philippines, by packaging its claims, maliciously circumventing China's declaration and unilaterally initiating arbitration, has violated the right to seeking dispute settlement of its own choice that China enjoys as a State Party to UNCLOS and undermined UNCLOS' authority and integrity.

 

Fourth, the Philippines tries to serve its purpose by not telling the truth. The Philippines should have engaged in close consultations with China to settle their South China Sea disputes and manage the situation on the sea in line with its agreement with China. However, the Philippines has on the one hand refused to handle the disputes as agreed, and on the other hand claimed that the bilateral means have been exhausted. The Philippines says that the arbitration has nothing to do with territorial sovereignty and maritime delimitation, while its focus is all on China's sovereignty and maritime jurisdiction. The Philippines has submitted its requests on itself, while it has never engaged in consultations with China even on the very existence of "disputes concerning the interpretation or application of the Convention" and other matters.

 

Fifth, The Arbitral Tribunal, in disregard of the fact that China and the Philippines have chosen to settle relevant disputes through negotiations and consultations and the declaration on optional exceptions China has made in pursuance with UNCLOS, has violated the UNCLOS and expanded and abused its power at will, by hearing the case and exercising jurisdiction. The acts of the Arbitral Tribunal have worsened the tensions between China and the Philippines, affected the stability of regional and international maritime order, and contradicted its purpose of peaceful settlement of international disputes.

 

Based on what is stated above, the compulsory settlement procedure provided for in UNCLOS does not apply to the disputes between China and the Philippines, The Arbitral Tribunal set up thereof has no jurisdiction. Its forceful handling of the case and exercise of jurisdiction is willful expansion and abuse of power in nature. The arbitration initiated by the Philippines is a political farce and provocation under the pretext of law. The Philippines intends to use the arbitration to deny China's territorial sovereignty and maritime rights and interests in the South China Sea, and seek support for its own invasion and illegal occupation of some islands and reefs of China's Nansha Islands.

 

China does not accept or recognize the "award" whatever it might be. Neither will China accept any country's attempt to use such an "award" as a basis for consultations on the South China Sea issue, nor will China accept any positions or activities proposed and conducted by any country based on such an "award".

 

Embassy of the People's Republic of China

Address: 3505, International Place, NW Washington DC, 20008

Email: chineseembassyspokesperson@gmail.com

 

 

Your comments are welcome.

 

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