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The Truth Behind the Philippines' Case on South China Sea

On July 12, the Ad Hoc South China Sea Arbitration Court set up by The Hague-based Permanent Court of Arbitration as unilaterally initiated by the Philippines is expected to announce its decision. The Chinese government has once again expressed its firm position of non-recognition and non-acceptance of any decision by that court, emphasizing that "the Ad Hoc Court has no jurisdiction whatsoever over this case and other related issues and therefore it should not proceed with arbitration nor make any decision thereupon".

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Source: CIA, NASA, China Maritime Safety Administration

The US, Japan and some Western nations have been drumming up noise on the arbitration while turning a blind eye to the fact that the Philippines' presentation and the set-up of the arbitration tribunal violate international standards of law and rules. Moreover, the unilateral initiation of arbitration by the Philippines is contradictory to its agreement with China to settle their sovereignty disputes through bilateral negotiations.

So why are they doing this? It is obviously aimed at framing China as a nation that "does not abide by international law". It is good to know that an increasing number of nations worldwide as well as international law experts have spoken out in support of China's position.

What we are witnessing is in reality a fight to safeguard international standards of law and the rule-based world order.

Of course, as an old Chinese saying goes, "Bad things can be turned into good things". As long as we take a principled position on the issue involved and tell the real story in good faith and with clarity, the truth behind the "veil" knit by the Philippines with the backing of the US will emerge clearly for all to see.

The international standards of law and rules embodied in the UN Charter clearly stipulate that any disputes on sovereignty should be settled by disputants through consultation and negotiation based on international law and practices while respecting historical facts.

Regarding UNCLOS' jurisdiction, its article 298 says that the international community has no recourse under it to mandatory procedures of settlements for disputes concerning maritime demarcation, territorial sovereignty, historical rights, military confrontations, etc. Therefore, UNCLOS signatories are entitled to issue written disclaimers of not accepting mandatory arbitrations on such issues. Any disputes thus excluded may not be presented for arbitration and no arbitration court has jurisdiction over such disputes.

What's more, China's claim of treating Nansha Islands or Archipelago as a whole is also ignored by the Philippines and the Arbitration Tribunal.

China, in accordance with UNCLOS and through proper procedure, made such a disclaimer of exclusion in 2006. As an Ad Hoc Arbitration Tribunal will cover issues related to sovereignty, historical rights and ownership, China should be automatically exempted from its jurisdiction. No matter what the decision is, there is nothing at all in UNCLOS that compels China to accept it.

What the Philippines did in pushing the arbitration in Hague is contradictory to basic principles of international law in general and UNCLOS in particular. The Philippines seems not to have knowledge of international law, since UNCLOS makes it crystal-clear that its case on the South China Sea holds no water. What the Philippines did is to hoodwink the world by packaging the arbitration with hidden links to sovereignty and territorial demarcation while on surface it appeared to be within the purview of UNCLOS.

Under the tutorship of American and British lawyers, the Philippines tried to bypass territorial sovereignty issues that UNCLOS has no jurisdiction by presenting 15 fussy issues for arbitration such as what are the natural features of the islands and reefs of China in South China Sea, and whether or not China's construction on those islands and reefs violates environmental protection rules under UNCLOS. In addition, it asked the court to rule whether China's sovereignty claims based on the "nine-dot line" are valid.

UNCLOS stipulates that as far as islands and reefs are concerned, the former enjoy 12 nautical miles territorial waters, 200 nautical miles of exclusive economic zone (EMZ) and continental shelf rights while the latter only have 12 nautical miles of territorial waters. For the low-tide elevations, they don't have any maritime rights. It is clear from these definitions that how to define the natural features of an island, a reef or something else will no doubt involve maritime sovereign rights and demarcation over which the arbitration tribunal has no jurisdiction.

In other words, UNCLOS follows the principle of international law "land commands the sea" in the sense that maritime rights come from littoral or coastal nations' sovereignty over land. Therefore, it "puts the cart before the horse" to bypass sovereignty of islands or reefs and go directly to talk about maritime entitlement and delimitation such as EMZ or continental shelf of those islands or reefs as suggested by the Philippines. It does not make any sense in international law.

From a historical perspective, the South China Sea is the biggest land-adjacent sea in the western Pacific with a total area of 3.5 million square km. Since ancient times, China has been exercising sovereignty over 4 big archipelagos in South China Sea, namely the Xisha, Nansha, Zhongsha and Dongsha.

The Nansha Archipelago was found and thus named by China the earliest. It is also China that has exercised on a continuous basis over the archipelago. The sovereignty of the archipelago has never been contested in history until very recently. Many maps and encyclopedias produced by other nations without exception mark this archipelago as part of China. It is therefore indisputable that China enjoys historical rights over 4 archipelagos and no countries including the US has ever challenged China's claims until now.

The occupation of some islands occurred mostly in 1970s and 1980s as a result of discovery of large deposits of petroleum and natural gas. Of course it is also related to the passage of UNCLOS because 200 nautical miles of EMZ is a creation by UNCLOS.

In addition, the Philippines has been emboldened by the geopolitical rift between China and the US as the latter has openly pushed "rebalance in Asia-Pacific" by abandoning its neutral position on the South China Sea and increasingly leans against China whenever such sovereign disputes come to the fore. The geopoliticalization of the South China Sea by the US has further complicated the security situation in the region and placed more hurdles in the peaceful settlement of these disputes. As called for by many countries, the US should rethink its moves in the region.

The new president of the Philippines has made remarks concerning possible resumption of dialogue and negotiation on the Nansha Islands disputes between the Philippines and China. That is definitely welcome and if carried through will correct the wrong course chosen by the previous administration of the Philippines and help defuse tensions in the region.

He Yafei is former vice minister of the Overseas Chinese Affairs Office of the State Council, and former vice minister at the Chinese Ministry of Foreign Affairs.

[Source: He Yafei, China US Focus, Hong Kong, 11Jul16]

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East China Sea Conflict
small logoThis document has been published on 13Jul16 by the Equipo Nizkor and Derechos Human Rights. In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.