Philippines' South China Sea lawsuit not supported by facts

Ahead of a ruling to be delivered on July 12 by the Permanent Court of Arbitration in The Hague on the South China Sea dispute between China and the Philippines, China has reiterated its solemn stance of not accepting or recognizing any decision that the international court makes on who has the legitimate rights over the disputed waters, stressing that the court "lacks jurisdiction in the case".

The US, together with some Western countries, is banking on the Philippine lawsuit to make China a target of criticism, while conniving at its Southeast Asian ally whose unilateral lawsuit against China is a violation of international law. A White House spokesperson has said that the US supports the use of legal mechanisms including arbitration to solve the dispute. Simultaneously, an increasing number of countries and international law experts have voiced support for China.

It is a fight for both China's sovereignty in the South China Sea and stability of the world order based on international norms and principles of international law.

When the facts and reasons are presented, the conspiracy of the Philippines and its abettors can finally come to light.

How is jurisdiction elucidated in the UNCLOS?

The principles of international law and basic norms of international relations recognized by the Charter of the United Nations stipulate that state parties involved in a sovereign dispute must solve their disagreements through negotiations and consultations based on respect for the historical facts.

The United Nations Convention on the Law of the Sea (UNCLOS) has an explicit explanation about jurisdiction in Article 298, which says that a state party is entitled to reject an arbitration if the disputes concerning maritime delimitation, territorial sovereignty, historical rights and military activities cannot be solved through means and procedures recognized by the international community. Any of the above disputes, if denied by a state party, is not covered by the jurisdiction of an arbitration court.
In 2006, China made a declaration on optional exceptions under Article 298 of the UNCLOS, citing the fact that the essence of the arbitration case involves sovereignty, historical rights, ownership and related matters. No matter what the July 12 ruling is, there is no article in the UNCLOS that can form a legal basis for a decision that is against China.

So, the lawsuit the Philippines filed against China goes against the UNCLOS.

Actually, the Philippines does not fully understand the nature of international law and the UNCLOS. Instead, it has been hatching a sinister plot to bring its appeal within the jurisdiction of the UNCLOS.

Embolden by some American and British lawyers and advisers, the Philippines steered clear of the factors including territorial sovereignty and maritime delimitation which could have led to turning down of its appeal, instead submitting a lawsuit to The Hague-based arbitration court over the natural attribute of some Chinese islands and reefs in the South China Sea and the legitimacy of its land reclamation activities and nine-dashed line delimitation in the waters.

According to the UNCLOS, an island grants a coastal state the right to territorial waters of 12 nautical miles, a 200-nautical mile exclusive economic zone and continental shelf, with a reef only offering the 12-nautical-mile right and a low-tide elevation has no significance. The classification of the maritime rights a coastal sate can get from an island or a reef is all about maritime delimitation, which is outside of the jurisdiction of the arbitration court.

In other words, the UNCLOS follows the principle that "the land dominates the sea", which means that the maritime rights come from the sovereignty a coastal state has over the land. Therefore, it is meaningless and illegal to talk about the issue of exclusive economic zone, continental shelf and territorial waters that the Philippines wants to deal with in its lawsuit against China before making clear who has sovereignty over the islands.

Since the ancient times, China has claimed sovereignty over the islands of Xisha, Nansha, Zhongsha and Dongsha in the South China Sea, with the Nansha Islands involved in the Philippine lawsuit being first discovered and named by China. Historically, the international community has never doubted China's claim of sovereignty over the Nansha Islands, with many countries' maps and encyclopaedias putting Nansha Islands under China's administration.

After World War II, the government of the Republic of China took over the Nansha Islands from the defeated Japan, and renamed 159 islands and reefs in 1947. China also published a revised map, in which it marked the 11-dash line to claim sovereignty in the South China Sea, which has long been recognized by countries including the US.

The illegal claims over islands China owns in the South China Sea started in the 1970s and 1980s when abundant oil and gas resources were discovered there. The claims also had something to do with the signing of the UNCLOS, which set the rule of 200-nautical mile exclusive economic zone.

Abiding by international law and maintaining world and regional order

Currently, the West is hyping up the Chinese government's attitude of not accepting or recognizing any ruling by the arbitration court as a violation of international law, defaming China as a challenger to the international norms. But in reality, who is the one violating international law and destroying the world and regional order based on rules and norms? I am not going to make comments on the situation in the Middle East or elsewhere. Just set the South China Sea issue as an example.

As I mentioned above, the lawsuit filed by the Philippines against China has many serious legal flaws. Its recalcitrance will dampen the efforts to stabilize the South China Sea and will increase the tensions in the region. Further, the establishment of arbitration courts remains questionable because they are detrimental to international law by forcibly placing the UNCLOS above the established peaceful dialogue framework recognized by international law.

The Philippines had reached an agreement with China to solve the dispute through negotiations and consultations. But it set aside the bilateral agreement by filing a lawsuit, which can be seen as a move to desecrate international law and the UNCLOS. The Philippines is plotting to geopoliticize the dispute to realize its ulterior motives by means of outsiders' help.

Around 2010, the US began carrying out its rebalancing to Asia strategy, which focuses on an aggressive, realist foreign policy, while deepening its alliance with Japan to implement the offshore balancing tactics, with an aim to intervene in the South China Sea disputes and contain China in the region. Since then, Senior US officials including the defense secretary have repeatedly and publically criticized China for "changing the status quo" in the South China Sea, calling it a "revisionist" nation. The US also increased regional tensions by conducting the so-called freedom of navigation operations in the South China Sea to flex its muscle and challenge the bottom line of China. The policy based on the narrow-minded geopolitical consideration will do harm to the strategic balance between the two big powers and will further impair the US interest in the region.

The aftermath of the direct intervention by the US, a hegemonic power which is outside the region, is not difficult to imagine. The issue of the South China Sea is further internationalized and the regional tensions are heightened, which raises the possibility of a military conflict.

As a member nation of the Association of Southeast Asian Nations (ASEAN), the Philippines needs to reconsider the importance of regional cooperation, as China is the largest trade partner for the ASEAN and has a close economic, political and cultural connection with the bloc including the Philippines. This connection will help us clear the handicaps and solve the dispute through negotiations. If the dispute cannot be solved in a short time, we can set aside the dispute by promoting bilateral cooperation and regional integration.

In a speech delivered at the Conference on Interaction and Confidence-Building Measures in Asia (CICA) on April 28, 2016, Chinese President Xi Jinping reiterated China's determination of maintaining the stability of the South China Sea and safeguarding its sovereignty in the region, saying that it will solve the disputes with the countries involved through peaceful negotiations and consultations. Xi also expressed the idea of seeking common ground while reserving differences with the US.

The dual-track approach proposed by China to solve the South China Sea disputes has gained wide-ranging support from many countries. And the ASEAN has realized the importance of resorting to dialogue to solve the disputes. We hope, no matter what ruling the arbitration court will make, the parties involved could make concrete efforts to stabilize the South China Sea for the sake of our common interest in the region.

The author is former vice foreign minister of China.

(Opinions expressed in the article don't represent those of the Sino-US.com.)


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