China does not accept or recognize the South China Sea Arbitration by the Philippines

Jianguo XIAO

China does not accept or recognize the South China Sea Arbitration by the Philippines

Jianguo XIAO①

Respected Professor Hu Dekun，Professor Yu M inyou，from China Institute of Boundary and Ocean Studies （CIBOS），Wuhan University

Respected Scholars and Dear friends，

Ladies and Gentlemen，

Thank you for inviting me to this sem inar.On behalf of the Department of Boundary and Ocean Affairs of Chinese Foreign M inistry，let me extend m y congratulations on the opening of the sem inar，and mywarm welcome toall ofyou com ing toattend thissem inar inWuhan.I would also like to thankWuhan University China Instituteof Boundary and Ocean Studies for their thoughtfularrangements.It ismy great honor to be here w ith you to make a speech and to share w ith you some of my thoughts on the arbitration case between China and the Philippines.I do hope we can take this opportunity to exchange our views and learn from each other.As we know in November 2015，the tribunal had the oral hearing on the substantive issues and the outstanding jurisdictional issues and is likely to render the final award in the near future.In this regard，today's theme？__the Application of Compulsory Dispute Settlement Proceduresunder the United Nations Convention on the Law of the Sea（"UNCLOS"or"the Convention"）to the Arbitration is both timely and interesting.

I.What is the basic position of China towards the arbitration case unilaterallyinitiated by Philippines？

In January 2013，Philippines unilaterally initiated the arbitration of the South China Sea under Part 15and Annex 7ofUNCLOSand pushed ittenuouslyuntil today.China’spositionofneitherparticipating nor accepting is consistent and clear-cut.In December 2014，China released the Position Paper on the matter of jurisdiction in the South China Sea arbitration initiated by the Philippines，explicitly elaborating on China’s grounds to reject the jurisdiction of the arbitral tribunal.In October 2015，China issued a statementon theaward delivered by the tribunalon thematterof jurisdictionand adm issibility，announcing that the award was null and void，not binding on China.China's position can be summarized as 4-NOs，No Acceptance，No Participation，No Recognition and No Implementation.

II.China’s foregoing position is fully in accordance w ith international law，while the arbitration case is against it.

1.The issue of territorial dispute is out of the scope of UNCLOS.

The crux of the subject matter of the arbitration is the territory dispute caused by the Philippines’s illegal occupation of some islands and reefs of China’s Nansha Islands since the 1970s and maritime delimitation disputes with the evolution of the contemporary law of the sea.

It is governed by UN Charter and general international law.In this regard，the South China Sea Islands are Chinese territory with ample legal base and historical evidence.From the ancient times，the successive Chinese governments have exercised jurisdiction over them through administration，m ilitary patrols，fishing and development and so on.During the Second World War，Japan seized Xisha and Nansha Islands.When the war ended，Japan returned the Chinese territories it had stolen to China in accordance w ith the Cairo Declaration and the Potsdam Proclamation in the 1940s.China recovered the Nansha islands，pronounced its sovereignty and reinforced jurisdiction through such measures as official renam ing，publishingmaps，settingup adm inistrativeunitsand stationing troops.In the several decades that followed，it was w idely recognized by the international community that the Nansha islands belongs to China，and not a single country ever raised objections.

The scope of the Philippine territory was clearly lim ited by the treaties during the colonial period between theUnited States，Spainand United Kingdom which did not includeanyofChina'smaritime features in the South China Sea.

Since the 1970s，after a release of the potential oil and gas reserve in the South China Sea，the Philippinespushed forexpansionism beyond itsinherentterritory lim it by sending troops［illegally］tooccupy eight maritime featuresofChina’sNansha Islandsand soughttopermanently station thereand“legalize”the occupation through various means，such as constructionof m ilitary facilities，ports and airports，adm inistrative establishment，unlaw fully designation of the so-called"Kalayaan Island Group".The Phi-lippines also attempted to further invade and occupy more maritime features of China’s Nansha Islands by“running aground”an old naval ship at Ren’ai Jiao in 1999.

In April 2012，the Philippines sent a warship into the adjacent waters of China’s Huangyan Island，forcefully detained and harassed the Chinese fishermen and fishing boats conducting normal operation there，deliberately triggered the“Huangyan Island incident”.A fter theincident，thePhilippines finally made up its m ind to bring the bilateral disputes concerning South China Sea to the compulsory settlement under UNCLOS.

The Philippine's activities mentioned above have violated the UN Charter and general international law，and seriously encroached upon China's territory sovereignty.The Chinese government has always been firm ly opposed to these actions.

Looking back into the history，it's not hard to conclude that it is the Philippines'illegal occupation and intrusion that led to these disputes.Even today’sarbitration unilaterally initiated is actually the continuation and development of its territorial expansionism in the form of so-called legal means.

2.Disputes such as maritime delim itation，historic title or rights，m ilitary activities are excluded from the compulsory proceedings by a declaration of China made in 2006 in accordance with Article 298 of UNCLOS.

China's declaration of the optional exclusion means it w ill not accept the compulsory mechanism of Part 15 of UNCLOS in dealing w ith the overlappingmaritime claims or delimitation issues.More than 30 countries have made sim ilar statements.All these declarations made by China and other countries constitute an integral part of the UNCLOS and should be effective and respected.In disregard of the choice made by China，the Philippines violated the right that China enjoys as a contracting party to UNCLOS to seek dispute settlement of its own choice，violated the UNCLOS and damaged the integrity and delicate balance of the UNCLOS.

3.China and the Philippines have committed themselves many times to resolving disputes between them through bilateral negotiations and consultations.

According to China's legislations and practice，such as notes verbales to UN in 2009 and 2011，China'sNanshaislandshasitsown territorialsea，contiguouszone，EEZand continental shelf.Meanwhile China also enjoys historic title and rights in the South China Sea.The above claims really overlap with thoseof thePhilippines.Thenhow tosolve thisproblem between the two countries？As Imentionedbefore，the third party settlement［procedure］isexcluded，whichalsomeansChina advocatesconducting direct negotiation and consultation based on international law including UNCLOS to get an equitable solution. Before the final solution reached，both sides shall exercise self restraint and try to make a provisional arrangement.In fact，negotiation and consultation is the best and effective way to a durable solution.For example，in 2000 China and Vietnam concluded the delim itation treaty in Beibu Bay through decades of yearsofbilateral talks.Currently Chinaisengaging in thedelim itation talk of the Yellow Seawith Republic of Korea.Looking at a bigger picture，China has concluded 12 boundary lines with 14 land neighboring countries by equal and friendly negotiations.

In this regard，China and the Philippines both actually have reached common understanding.There has been a long-standing agreement between China and the Philippines on resolving their disputes in theSouth China Sea through friendly consultations and negotiations.From 1995 to 2011，there were at least 6 joint statements between the two countries repeatedly reaffirm ing negotiations as the means for settling relevant disputes.The mutual understanding was also reflected in the Art.4 of the Declaration on the Conduct of Parties in the South China Sea（"DOC"），jointly signed in 2002 including China and Philippines，emphasizing negotiations shall be conducted by the states directly concerned.All these obviously have produced the effect of excluding any means of third party settlement.By initiating the arbitration，the Philippines violated the agreement to resolve disputes through negotiations and was an act of dishonoring its comm itment，running counter to pacta sunt servanda（pact must be honored），a basic principle in international law.

4.Basic requirements for launching the compulsory procedure of UNCLOS are not satisfied.

According to Art.280，281，282and 283of UNCLOS，there are several procedural preconditions，that is:the means of their own choice prevails，and such means shall be first resorted to and exhausted，when a dispute concerning the interpretation or application arises，parties shall proceed to an exchange of views.Given the fact that China and Philippines have made a clear choice of the means and procedures of settling their disputes，and given that Philippines has never fulfilled its obligation to have meaningful talk or fully exchange views w ith China，the Philippines violated UNCLOS and abused the procedures under it.

5.The tribunal has takenbiased standing in favorof the Philippines，actingasthePhilippines'agent，having lost its ground of impartiality and justice.

In the award of jurisdictionand admissibility，one can see there are lots of loopholes on the legal reasoning and facts finding，full of controversies.The Tribunal actually took a careless，negligent and irresponsible jurisprudence［adjudicative］approach without a thorough and careful scrutiny.Take two examples:（1）It is common know ledge that a geographical feature at sea is meaningless in civilized society without a sovereign or an owner.Only if it is crowned a sovereign，can it generate maritime entitlement.That is why in the international law and practice，the legal status of maritime features and territory sovereignty aswell asmaritimedelim itationareinseparable.Judge Soons，amemberof the tribunal co-w rote a paper years ago stating that"entitlement to maritime spaces forms an inherent part of boundary delim itation".But to our surprise，the tribunal only adopted the Philippines plea and reasoning w ithout any hesitation.（2）The tribunal turns blind eye towards the wholeness or an archipelago of Nansha，a geographical，econom ic and political entity，historically been regarded as a single unit.But even if it takes a clinical and isolated view，the existence and full entitlement of Taiping Dao（Itu Aba Island）should not be neglected and shall be seriously taken into account.Recently Taiwan Ma Yingjiu's adm inistration has already given a detailed description of Taiping.

Based on what I said above，the compulsory settlement procedure provided for in the UNCLOS does not apply to the disputes between China and Philippines.The tribunal set up thereof has no jurisdiction. Its forceful handling of the case and exercise of jurisdiction is w illful abuse of power in nature，it is unlaw ful from the very beginning.China w ill not accept or recognize such arbitration in any way.

III.Prospect and China's possible reactions.

Disputes between China and the Philippines over South China Sea are complicated and comprehensive.It is hazardous to confine the disputes settlement solely to the legal approach，only creating more problems than solving them.This case brought forth by the Philippines is not simply a legal case，it is a political provocation under the cloak of law w ith some western power behind it.The Philippines and arbitration tribunal intentionally circumvented China's declaration，and packaged disputes of territory and maritime delimitation into disputes of interpretation and application of UNCLOS.What the Philippines intends to do is to use the arbitration to deny China's territorial sovereignty and maritime entitlement in South China Sea，to seek support for its own illegal occupation of some parts of China's Nansha Islands，and even to underm ine China's image.The arbitration has gravely hinderedmutual political trust between Chinaand the Philippines，and underm ined theam icableatmosphere forChinaand ASEANmemberstates to implement the DOC and to consult on the proposed COC.The move constitutes a serious threat to regional peace and stability.China firm ly opposes the arbitration case，w ill neither accept nor participate in the arbitration process.No matter what the final ruling w ill be，China w ill not recognize or implement it.Chinawill remain comm itted to resolving the disputespeacefully throughnegotiationand consultation，and w ill not accept any country's attempt to use such a ruling as a basis for consultations with China on the South China Sea issue，nor will China accept any positions or activities proposed by any country based on such a ruling.

Ladies and gentlemen，

The South China Sea issue involves a number of countries，and it is not easy to solve it in a short time.Up to the present，the literal countriesconcerned arestill working closely together and general situation in the South China Sea is still peaceful and stable.China remains comm itted to upholding the peace and stability of the South China Sea，upholding the rule of law in the South China Sea and upholding the freedom of navigation and overflight enjoyed by all countries in accordance w ith international law in the South China Sea.

Ladies and gentlemen，

Looking at the agenda of this sem inar，I do hope we can have a deep exchange of all kinds of views on the arbitration case and the impact on UNCLOS as well as on the South China Sea.Finally I wish the sem inar a full success，and a pleasant stay in Wuhan to you all.

Thank you！

●作者信息：肖建國，中國外交部邊界與海洋事務司副司長。

①Deputy Director General，Department of Boundary and Ocean Affairs，M inistry of Foreign A ffairs of China.This paper is the Keynote Speech at the International Sem inar on the Application of Compulsory Procedures under UNCLOS to the South China Sea A rbitration held at Wuhan University on 16 April 2016.

●責任編輯：余敏友，黃偉