Manila's scheme abuses law
Updated: 2014-04-01 07:20
(China Daily USA)
The Philippines' groundless filing for international arbitration concerning the South China Sea disputes will prove futile
Editor's Note: The following is a translation from Chinese of a commentary in People's Daily.
In disregard of the Chinese government's position of neither accepting nor participating in international arbitration relating to the South China Sea disputes, the Philippine government unilaterally submitted to the arbitral tribunal on March 30, 2014, a so-called memorial. Besides, the Philippines has also used the mass media to hype up its submission, making false accusations against China by distorting the facts and misinterpreting international law. The Chinese government naturally had to reject the Philippines' claims on completely legitimate ground. The Philippines' political calculation to pressure China by abusing procedures of international law is doomed to failure.
Why does China not accept the Philippines' unilateral filing for international arbitration?
On January 22, 2013, the Philippines informed China, through a note verbale, that it was submitting its disputes with China relating to the South China Sea to the compulsory dispute settlement procedures under the United Nations Convention on the Law of the Sea (UNCLOS). In response, China repeatedly pointed out that the core of the China-Philippines disputes relating to the South China Sea lies in the territorial disputes over some islands and reefs of the Nansha Islands and overlapping claims of jurisdiction over some sea areas. Given that territorial disputes are not subject to UNCLOS in terms of interpretation or application, the UNCLOS compulsory dispute settlement procedures do not apply hereinto. Regarding the two countries' overlapping claims on some areas of the South China Sea, China, as a Contracting Party to UNCLOS, made a declaration back in 2006, which excluded disputes on maritime delimitation and historic title or rights from the compulsory dispute settlement procedures, in accordance with relevant provisions concerning optional exceptions. Therefore, without China's consent, the Philippines must not unilaterally submit its disputes with China to international arbitration on such issues as maritime delimitation.
As is known to all, the islands in the South China Sea, including the Nansha Islands, have been China's territory since ancient times. After the end of World War II, acting in accordance with a series of postwar international documents, the Chinese government recovered these islands and reefs from the Japanese aggressors in 1946. For a long period of time after WWII, countries, including the Philippines, all recognized or raised no objection to China's sovereignty over the islands and reefs in the South China Sea. It was not until the 1970s that the Philippines began to covet the Nansha Islands and brazenly occupied some of the islands and reefs. These acts of occupation gravely violated the United Nations Charter and the basic norms governing international relations. The Chinese government has always firmly opposed these occupations and has demanded on numerous occasions the Philippines withdraw from the Chinese territory it occupied. However, instead of correcting its offenses, the Philippines has made a further provocation by initiating an international arbitration process, which is unjustified, illegal and despicable.
The Chinese government has always stood for settling the South China Sea disputes through consultation and negotiation by the parties directly concerned. This is an important consensus that China and the Philippines have reached in a number of bilateral agreements, such as the Joint Statement Between China and the Philippines on the Framework of Bilateral Cooperation in the 21st Century in May 2000 and the Joint Statement of the People's Republic of China and the Republic of the Philippines in September 2011. It is also an important principle enshrined in the Declaration on the Conduct of Parties in the South China Sea (DOC) signed in 2002 by China and the ASEAN member states, including the Philippines. China and most other signatories have all along been actively promoting the implementation of the DOC. Obviously, the Philippines' breach of the bilateral consensuses and its commitments to the DOC, constitutes a perfidious act of lacking due national credit.
The Philippines has gone out of its way to try to drag China into the arbitration process. Taking advantage of the deficiencies of relevant UNCLOS mechanisms, it has tried to manipulate the composition of the Arbitral Tribunal and the Rules of Procedure in an attempt to make things difficult for China. By unilaterally filing an international arbitration on the South China Sea disputes, the Philippines has not only violated international law including UNCLOS, but also denied the basic historical facts. It has both gone against international justice and breached the basic norms governing international relations. The Chinese government's position of neither accepting nor participating in the related arbitration is both justified and based on solid legal ground.
What does the Philippines attempt to gain by filing for international arbitration?
The Philippines knows very well that it will run into insurmountable legal barriers should it submit its South China Sea disputes with China to the UNCLOS dispute settlement procedures. Therefore, it is distorting facts and misrepresenting international law in order to bypass China's 2006 declaration and turn the disputes over the sovereignty of islands and reefs and delimitation of maritime boundaries into disputes concerning the interpretation or application of UNCLOS which could be subject to ruling by an international arbitral tribunal. The Philippines is trying to create the impression that the China-Philippines disputes relating to the South China Sea are not about disputes over islands and reefs or delimitation of related maritime boundaries. But despite these calculating moves, people can easily see what the South China Sea disputes between the Philippines and China are about. Just as the Chinese Foreign Ministry spokesperson said about the Philippines' submission of its memorial on March 30, "the direct cause of the dispute between China and the Philippines is the latter's illegal occupation of some of China's islands and reefs in the South China Sea. At the heart of the matter are the disputes between the two sides on the sovereignty over islands and reefs, and delimitation of maritime boundaries".
In order to realize its aims, the Philippines has deliberately tried to divert attention from the real issue. In its memorial, the Philippines states that its claim does not concern the sovereignty of islands and reefs or delimitation of maritime boundaries and that it only asks the arbitral tribunal to rule on whether the relevant reefs with Chinese presence are islands, reefs or submerged maritime features and whether these islands and reefs are entitled to 200-nautical-mile exclusive economic zones and continental shelves. But according to the principle that "land dominates the sea", sovereignty over land or islands is the prerequisite and basis of any claim of maritime rights and interests. In other words, maritime entitlement derives from sovereignty over land or islands. Like the two sides of one coin, ownership of islands and reefs and the maritime entitlement cannot be separated from each other, with the former being of primary importance. If the ownership of islands and reefs is undecided, how can one determine the maritime entitlement they can claim and their role in maritime delimitation? In order to turn its disputes with China on the South China Sea into those that might be admissible for the arbitral tribunal, the Philippines has deliberately made this coin one-sided. Anyone with common sense will naturally ask, "How can anything exist without its very basis?" Or to use a Chinese saying, "With the skin gone, to what can the hair attach itself?" The Philippines should, first and foremost, return to China the Chinese islands and reefs it has illegally occupied.
The Philippines has resorted to these maneuvers for the following purposes: First, to depict itself as an underdog to win sympathy of the international community; second, to portray itself as a guardian of international law and justice and tarnish China's image; and third, to legalize its occupation of the related islands and reefs through arbitration. But the Philippines should not forget that China has exercised sovereignty and jurisdiction over the Nansha Islands since ancient times, the Nansha Islands are part of Chinese territory which were recovered by the Chinese people with blood in their war against Japanese aggression, and the sovereignty over the Nansha Islands and other islands in the South China Sea was fully restored to China after WWII in both legal and factual terms. The Chinese government is firm in its resolve to uphold China's sovereignty. China's rejection of the Philippines' filing for arbitration is solidly based on international law. The Philippines' scheme could only prove futile.
Consultation and negotiation are the right way to settle the South China Sea disputes between China and the Philippines.
The Chinese government always stands for settling land and maritime disputes through consultation and negotiation. Over the past decades, China has settled most boundary and territorial issues with its land neighbors through friendly negotiations on an equal footing, and its maritime delimitation issue with Vietnam in Beibu Bay has also been settled in a fair manner through negotiations. International practices prove that consultation and negotiation are the best way to resolve such issues.
With the joint efforts by China and most ASEAN member states, the South China Sea enjoys overall stability at present. Acting in the interest of China-Philippines relations and peace and stability of Southeast Asia, China has unswervingly been dedicating itself to settling its disputes with the Philippines through consultation and negotiation. The two countries have reached an important consensus of "a gradual and progressive process of cooperation shall be adopted with a view to eventually negotiating a settlement of the bilateral disputes". And sound cooperation was once registered in this respect between China and the Philippines.
China is ready to continue its efforts to uphold peace and stability in the South China Sea and improve and grow its relations with the Philippines. China has the determination, confidence and patience to engage the Philippines in direct negotiation. Despite the fact that the Philippines has unilaterally filed for arbitration in an attempt to shut the door on bilateral negotiation, China still keeps the door wide open for consultation and negotiation. China urges the Philippines to rectify its erroneous acts, honor its commitment and return early to the right track of settling its disputes with China through bilateral negotiation.
As a Chinese saying goes, one who has justice on his/her side does not need to resort to shouting. With regard to the arbitration process forcibly pushed by the Philippines, justice is on China's side and China will not be intimidated. The arbitration will in no way shake China's resolve to uphold its sovereignty or change China's consistent position on and approach to the South China Sea issue.
(China Daily USA 04/01/2014 page11)