Why China Says No to the Arbitration on the South China Sea
Beijing will ignore the upcoming ruling — and with good reason.
The Hague tribunal in the much-discussed South China Sea arbitration case between China and the Philippines has notified the world that it will issue a final verdict on July 12. Many Western countries seem to think they already know the result of the arbitration — that China will lose. They have already started urging China to accept the ruling. But Beijing’s position is clear: no acceptance, no participation, no recognition, and no implementation. There is solid international legal basis for China to oppose this case. And by doing so, China is not only safeguarding its national interests, but also protecting the integrity and legitimacy of the international maritime order.
Why does China refuse to accept and participate in the proceedings of this tribunal, being heard at the Permanent Court of Arbitration in The Hague? Because China, as a sovereign state, is entitled to choose its preferred means of dispute resolution — a legitimate right under international law. Moreover, the Philippines’ case is inherently flawed and illegitimated by such irregularities as the country’s abuse of the dispute settlement procedures, its distortion of concepts, and its deliberate disguise of the real nature of the disputes.
The Philippines’ arbitration relates to the dispute over the sovereignty of islands and reefs in the South China Sea, and to maritime delimitation. But these territorial issues are not regulated by — and therefore beyond the scope of — the U.N. Convention on the Law of the Sea (UNCLOS). And in 2006, China declared it would exclude “disputes concerning maritime delimitation” from compulsory arbitration, under Article 298 of UNCLOS. Second, the Philippines’ unilateral initiation of compulsory arbitration did not meet UNCLOS preconditions for such initiation. The “no arbitration without the existence of a dispute” principle requires that before resorting to compulsory arbitration, there must have existed a real dispute between the parties. However, China has not yet presented specific claims with individual islands: Instead, it has always treated them as part of its Zhongsha Islands or Nansha Islands in the South China Sea.
UNCLOS also stipulates that the Philippines must exchange views related to the arbitration over the dispute with China. But the Philippines has never consulted with China on the subject matters of the arbitration. And it was not telling the truth when it reported an “impasse” with China in “the bilateral exchanges” and “the great many subsequent exchanges.” In fact, it was China that tried in vain to engage in meaningful dialogue with the Philippines.
Therefore, the Philippines’ unilateral initiation of arbitration has fallen short of meeting the UNCLOS conditions. Besides, by unilaterally initiating the arbitration, the Philippines has violated an earlier agreement it reached with China: Both countries previously stated their commitment to bilateral negotiations and consultations as the means to settle disputes.
Why does China find it impossible to recognize and implement the tribunal’s upcoming decision? Although Article 288(4) of UNCLOS stipulates that the tribunal should decide whether it has jurisdiction, the application of this provision is not unconditional. Indeed, there is no such thing as absolute power in international law. This tribunal, whose authority and power are conferred by states, is an international dispute settlement mechanism under UNCLOS. If the tribunal abuses its power, China — along with any other members in the international community — would have the right to reject its decisions. And in this case, the tribunal has acted in a reckless and arbitrary fashion. In doing so, it has violated the basic principles of international rule of law and undermined China’s and other nations’ faith in UNCLOS.
We don’t yet know the outcome, but we do know that the tribunal failed to fully understand and investigate the real dispute between China and the Philippines. It disregarded the essence and purpose of the Filipino claims in filing the case, deliberately regarding it as a mere issue of the interpretation and application of UNCLOS — but in fact, the submissions handled are far beyond this scope. There is deep concern in China that the tribunal is failing to consider the specific geographical framework and situation in the South China Sea where the maritime claims of the two countries potentially overlap.
I hope it is not hard to understand why China has decided not to recognize and implement the tribunal’s ruling. More than 60 countries have voiced their support for China’s position on resolving the South China Sea issue through negotiations and consultations. China, as a state party to UNCLOS, supports and respects the treaty’s principles and spirit. What China opposes is not UNCLOS and compulsory arbitration, but the tribunal’s abuse of power in handling the case.
Today, most disputes are resolved through negotiations between the countries directly involved. The prerequisite for such negotiations, whether bilateral or multilateral, is the agreement or consent of those countries. China’s claim and position in the arbitration case are consistent with the basic spirit of international law, as well as state practice in international relations.
This arbitration cannot resolve the disputes between China and the Philippines in the South China Sea. Instead, it will only increase tensions and undermine peace and stability in the region. If the coastal countries in the South China Sea region do not intend to aggravate tensions, they have to return to the path of seeking resolution through negotiation. China and the countries in the Association of Southeast Asian Nations (ASEAN) have agreed to handle the issue through a dual-track approach — in other words, to resolve disputes through peaceful negotiations. Consultations on the code of conduct in the South China Sea region are making progress. The momentum should not be interrupted.
As President Xi Jinping said, China is committed to upholding international justice and is opposed to forcing one’s will upon other people. The handling of the South China Sea issue has a bearing on justice as well as peace and stability. Countries in this region need to work together to build rules-based cooperation. The international community should support the efforts made by China and other littoral states to manage and resolve disputes in a peaceful manner, respect China’s choice of using negotiations as the means to settle disputes, and protect the legitimacy and fairness of international mechanisms — especially UNCLOS.
Image Credit: VCG/VCG via Getty Images
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