BEIJING, April. 3 (Xinhuanet) -- The Philippines took the dispute with China over the South China Sea to the international arbitration in January of 2013. On March 30, 2014, it submitted a so-called memorial to the arbitral tribunal. This erroneous practice of unilaterally trying to force arbitration has drawn the same criticism from experts of international laws and international issues. According to the experts interviewed by reporters, China stands on a solid international legal base to refuse to accept or participate in the arbitration. The Philippines should fully recognize how sensitive and complicated the South China Sea issue is, and return to the right track of resolving the dispute through consultations and negotiations, bringing no further harm to the bilateral ties between the two nations.
No matter what kind of package it has made, the nature of the issue can not be changed, as the arbitration raised by the Philippines is closely related to territorial sovereignty and maritime demarcation, said Jia Yu, deputy director of China Institute for Marine Affairs with the State Oceanic Administration. Beginning from the 1970s, the Philippines illegally occupied islands and reefs of China's Nansha Islands, including the Mahuan Dao, Feixin Dao, Zhongye Dao, Nanyao Dao, Beizi Dao, Xiyue Dao, Shuanghuang Shazhou and Siling Jiao. The Philippines’ illegal occupation of these Chinese islands and reefs is the root cause of the South China Sea dispute between the two countries. As early as in 2006, China submitted a written statement to the United Nations Secretariat, clearly declaring that, on issues of territorial sovereignty, marine demarcation, and military activities, China refuses to accept any jurisdiction of international justice or arbitration as stipulated by section 2 of part XV of the United Nations Convention on the Law of the Sea (hereinafter referred to as “the Convention”). The arbitration raised by the Philippines is in essence dispute concerning the sovereignty over the islands and reefs and demarcation over certain waters in the South China Sea.
Jia stressed, with the larger picture of China-Philippines relations and interests of regional peace and stability in mind, China has consistently insisted on solving the issues of territorial sovereignty and maritime demarcation through bilateral negotiations; and solving the disputes of territorial and maritime rights by negotiations under international law while respecting the historical facts. Either the UN Charter or the Convention acknowledges the independent arrangements of the countries concerned, and encourages nations concerned to first solve their disputes through negotiations. The Philippines turns a blind eye to China’s goodwill and restraint, reaches out for a yard after taking an inch, and sues the victim before itself is prosecuted, trying to dragging China to international arbitration by disguising the disputes and applying for the procedure of arbitration under the Annex VII of the Convention. This shows its disregard for and provocation of China’s sovereignty.
The Philippines' filing of arbitration is an abuse of law procedures, said Wu Shicun, president of the National Institute for South China Sea Studies. As is clearly stipulated by the Convention, the precondition of the application of arbitration procedures is the principle of consent of nation, a basic principle of international law. The consent of a nation is expressed in two aspects. The first is having reservation to make refusal of arbitration on disputes in certain areas according to the Convention. In 2006, the Chinese government made a declaration refusing arbitrations regarding such matters as those related to territory sovereignty and maritime demarcation from dispute settlement procedures under any international laws and arbitration. The Philippines ignores the declaration and takes the disputes related to territory sovereignty of islands and reefs and maritime demarcation to international arbitration, making the arbitration procedure illegal from the start. The second is the prior agreement by countries as solution to disputes. In 2002, nations including China and the Philippines pledged to solve the South China Sea dispute through negotiations in the Declaration on the Code of Conduct on the South China Sea, and the declaration has excluded application of any other procedures including arbitration. From this, the arbitration unilaterally pushed by the Philippines does not meet regulations of the Convention. Any arbitration by a third party is acts going against the Convention and international laws.
Zhang Xinjun, associate professor of Tsinghua University school of law, pointed out that according to the proceedings of law, the Philippines had made obvious mistakes in the application of dispute settlement processes of the general international law and the Convention. First, sovereignty of islands is not related to interpretation of application of the Convention. State parties should not submit arbitrations in the procedure of the Convention. Second, Article 298 of the Convention gives the state parties right to rule out a dispute of the maritime demarcation from the judicial process under the Convention. Based on the rules above, the Chinese government proclaimed to rule out the dispute in 2006. As a state party of the Convention, the Philippines shall be bound by the term and shall not submit the arbitration unilaterally. The Philippines’ litigation act aims to distort and cover the essence of the South China Sea dispute, and then attempt to solicit international sympathy. However, from a practical point of view, only peaceful bilateral negotiations and consultations can effectively resolve the disputes of territorial sovereignty and maritime demarcation. Unnecessary provocation will only increase the difficulty of solving the problem.
Tsinghua University professor Jia Bingbing said that in the international judicial or arbitral proceedings, judicial or arbitral bodies need to consider the admissibility of the case. Request for arbitration on the Philippine side faces such problems. In the Convention, the first paragraph of Article 281 provides that "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 procedures 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." The request for arbitration on the Philippine side obviously does not meet the conditions above, and thus the arbitral tribunal does not have jurisdiction.
First, there is an "agreement" between China and the Philippines in this case. The content is that they shall solve dispute through consultation and negotiation when it is related to the South China Sea territorial sovereignty and maritime jurisdiction. The agreement is based on Article 4 of the Declaration on the Conduct of Parties in the South China Sea signed by ASEAN and China in 2002; the Joint Press Release of China and the Philippines issued by their heads of state in 2004 and the Joint Statement of China and the Philippines issued by their heads of state in 2011. Second, contrary to what the Philippines said, negotiation about arbitration as raised by the Philippines has never started between China and the Philippines. China has invited the Philippines several times to establish a consultation mechanism on the maritime issues, but has been ignored. The Philippines plays a substitution trick here. At last, Article 4 of the Declaration does not contain any expression or implication that allows any party to accept any other solutions. In fact it rules out the possibility of other solutions. In summary, "the Philippine appeal" does not apply to the provisions of the first paragraph of Article 281, and therefore the tribunal can not exercise jurisdiction in this case.
Qu Xing, director of China Institute of International Studies, indicated that the Philippines knows it for sure that the result of the so-called arbitration will not necessarily be favorable to it, nor will it have any impact on China, nor cause any change to the actual marine control in favor of it. That the Philippines insists on submitting to the arbitration comes from three considerations. First, it wants to influence the public opinion and put pressure on China through international community; Second, it can divert the domestic public’s attention from the embarrassing situation caused by the huge failure of its reckless provocation at Huangyan Island; Thirdly, it, by initiating the arbitration, seeks to stir and hype the South China Sea dispute and reap illegal profits.
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