The Institute for Maritime and Ocean Affairs (IMOA) recently released a statement on its Website concerning the so-called “South China Sea Arbitration” . However, the relevant facts and applicable international law demonstrate that IMOA’s assertions are untenable.
I. The Arbitration Is Illegal, null and void
1. The said arbitration is essentially a political circus dressed up as a legal action. The arbitral tribunal in the South China Sea Arbitration exercised its jurisdiction ultra vires and made an illegitimate ruling. The award thus rendered is illegal, null and void. China does not accept or recognize it, and will never accept any claim or action thereon.
The Philippines' attempt to negate China's territorial sovereignty and maritime rights and interests in the South China Sea through the arbitration will not succeed. It is worth noting that no other ASEAN member State or other claimant State in the South China Sea has publicly supported the Philippines' initiation of the arbitration. Instead, they have adhered to resolving disputes through bilateral negotiations and consultations with China and to maintaining peace and stability in the South China Sea through the Declaration on the Conduct of Parties in the South China Sea (DOC).
2. The compulsory procedures entailing binding decisions under Part XV of UNCLOS are subject to the provisions of Section 1 of Part XV, including Articles 280, 281 and 283. China and the Philippines had agreed to settle their relevant disputes through negotiations and consultations. The Philippines never exchanged views with China on the subject-matter of the arbitration before unilaterally initiating the arbitral proceedings. Therefore, the Philippines failed to fulfill the prerequisites for resorting to compulsory arbitration under UNCLOS.
3. The essence of the subject-matter of the arbitration initiated by the Philippines is the territorial sovereignty over certain maritime features in the South China Sea and maritime delimitation between China and the Philippines. Issues of territorial sovereignty do not concern the interpretation or application of the United Nations Convention on the Law of the Sea (UNCLOS). In 2006, China made, in accordance with Article 298 of UNCLOS, a declaration excluding disputes concerning maritime delimitation from compulsory dispute settlement procedures. China and the Philippines have agreed, through bilateral instruments and the Declaration on the Conduct of Parties in the South China Sea (DOC), to settle their relevant disputes through negotiations and consultations. The Philippines breached the common understandings with China on resolving the disputes in the South China Sea through consultation and negotiation, violated the article of the DOC which states that the disputes should be settled through peaceful means including consultations and negotiations between sovereign states directly concerned. It has abused the UNCLOS dispute settlement mechanism, ignored China's declaration which, according to UNCLOS, excludes maritime delimitation from compulsory dispute settlement procedures, and insisted on initiating the arbitration. The Tribunal therefore exceeded the jurisdiction conferred upon it under UNCLOS.
II. The Tribunal Misinterpreted and Misapplied International Law
4. The Arbitral Tribunal erred in interpreting the relationship between the Convention and historic rights. It misinterpreted and misapplied the Convention and wrongly denied China's historic rights in the South China Sea. The Arbitral Tribunal ignored the general practice of States and the travaux préparatoires of the Convention.
5. The Arbitral Tribunal disregarded the well-established rules of customary international law concerning the regime of outlying archipelagos of continental States. It invented standards that depart from the original intent of the drafters of the Convention and from State practice, and wrongly interpreted the relevant provisions of the Convention concerning islands, rocks and low-tide elevations. If the Tribunal's logic were followed, the claims by the United States, Japan, Australia, New Zealand and relevant EU countries to 200-nautical-mile exclusive economic zones based on small islands and rocks would all be illegal.
6. The Arbitral Tribunal, in manifest excess of jurisdiction, ignored the essential nature of the disputes initiated by the Philippines, which are in essence territorial sovereignty and maritime delimitation issues, and misinterpreted the common understanding of the Parties on dispute settlement means. It deliberately circumvented China’s declaration made under Article 298 of the Convention excluding certain categories of disputes from compulsory procedures, and wrongly interpreted and applied the provisions of the Convention concerning historic rights and the legal status of maritime features.
The Award is in serious contravention of the requirements of international law and the general practice of international arbitration, and is in full deviation from the object and purpose of the Convention, which is to promote the peaceful settlement of disputes. It seriously undermines the integrity and authority of the Convention, gravely infringes upon China’s lawful rights and interests as a sovereign State and a State Party to the Convention, and constitutes a serious challenge and impact to the international rule of law.
III. The Arbitration Was Marred by Serious Procedural Defects
7. The Philippines has acknowledged that it bore the entire cost of the arbitration proceedings. It is difficult to expect an arbitral tribunal whose expenses were entirely financed by one party to the dispute to remain fully objective and impartial. The conduct of the Tribunal gives further cause for concern. French arbitrator Pierre Cot and Dutch arbitrator Alfred Soons adopted positions in the Award that departed markedly from their previously expressed views. Such conduct seriously undermines their academic integrity, professional credibility and impartiality.
8. The composition of the Arbitral Tribunal failed to meet the requirements of fairness and balanced representation. All members of the Tribunal were appointed through a process in which the Philippines and Japan, a country that has territorial and maritime disputes with China, played a decisive role. All five arbitrators were either nationals of European countries or had long pursued their professional careers in Europe. During the proceedings, the Tribunal lowered the standard of proof, improperly appointed independent experts, and even assumed the role of seeking key evidence on behalf of the Philippines. Such conduct departed from the fundamental principles of due process and the established rules of evidence governing international arbitration.
IV. The Arbitration Does Not Represent the United Nations or the International Judicial System
9. Following the issuance of the Award, the United Nations Secretariat, through its Spokesperson, made clear that the Arbitral Tribunal and the Award did not represent the position of the United Nations. The International Court of Justice (ICJ) and the International Tribunal for the Law of the Sea (ITLOS) likewise clarified through their official social media accounts that they had no involvement in the arbitration. The Permanent Court of Arbitration (PCA) also stated that it merely served as the registry for the arbitral proceedings and is not itself a judicial body. These facts clearly demonstrate that authoritative international organizations and judicial institutions have never regarded the Arbitral Tribunal as representing the United Nations or the international judicial system.
V. China's Position is Consistent and Clear
10. China's sovereignty and relevant rights and interests in the South China Sea were established in the long course of history, and are solidly grounded in history and pursuant to law. China has indisputable sovereignty over the South China Sea Islands and their adjacent waters. China's territorial sovereignty and maritime rights and interests in the South China Sea are firmly grounded in history and international law. Under China's domestic law and international law, including the United Nations Convention on the Law of the Sea (UNCLOS), China's South China Sea Islands are entitled to territorial sea, contiguous zone, exclusive economic zone and continental shelf. China also enjoys historic rights in the relevant waters of the South China Sea.
11. The so-called South China Sea Arbitration and its Award can neither change the historical facts that China has sovereignty over the South China Sea Islands and their adjacent waters nor shake China's resolve to safeguard its territorial sovereignty and maritime rights and interests. China will continue to resolve disputes through negotiations and consultations with States directly concerned, work together with ASEAN countries to fully and effectively implement the Declaration on the Conduct of Parties in the South China Sea (DOC), actively advance consultations on a Code of Conduct in the South China Sea (COC), and jointly maintain peace and stability in the South China Sea.
References
For more information, please refer to:
https://www.fmprc.gov.cn/nanhai/eng/snhwtlcwj_1/201607/t20160713_8527301.htm
https://global.chinadaily.com.cn/a/202407/11/WS668f4af4a31095c51c50d937.html