The South China Sea Arbitration Case: a Political Farce In a Legal Cloak

By Liu Yu, Senior Reporter of Outlook Weekly



The South China Sea Arbitration Case: a Political Farce In a Legal Cloak

By Liu Yu, Senior Reporter of Outlook Weekly

The temporary Arbitral Tribunal on the South China Sea arbitration case filed by the Philippines on July 12th, 2016 made the so-called final award, which is illegal and invalid. In this regard, the Chinese side has repeatedly stated that the Philippine Aquino III government unilaterally filed the arbitration case that is against international law, that the provisional Arbitral Tribunal has no jurisdiction over the case, and that China neither accepts, nor participates, nor recognizes it. Many experts have emphasized in interviews that the South China Sea arbitration case is actually a political farce in a legal coat, and that the award by the Arbitral Tribunal was in disregard of facts and lawful ruling, thus, without any legal effect. These experts and scholars express their support to China's position on the South China Sea disputes, while calling for dialogue and consultation to resolve the issue of the South China Sea disputes peacefully.

A political farce cannot cover up sinister motives

The Philippines, regarding the South China Sea disputes, was unwilling to remain idle, but ready to make wriggling. Since the end of the 1970s, the Philippines has continued illegal occupation of and nibbling at through force a dozen islands of the South China Sea Islands, and launched large-scale construction projects and been busy at putting up military installations on some islands, but also constantly taken provocative acts at the sea. So the Philippines in the South China Sea disputes is not the victim, but the perpetrator, and during the Aquino III government period had repeatedly attacked China on the disputes over Huangyan Island, Ren’ai reefs and others. As the conspiracies failed one after another, the Aquino III government, acting in such a way of "a thief crying for stopping a thief", deliberately distorted the law, filed the South China Sea arbitration case to the International Court of Arbitration in the Hague, the main motivations are as follows:

Because of the huge gap in strength between the Philippines and China, and Aquino III government put on a pitiable look to attract the international community’s "sympathy", then to get the “leverage" effect. In the eyes of Aquino III, the arbitration case can be both "offensive and defensive", a measure to get initiatives from both sides of the coin. If he can win, the Philippines can take this as an excuse to launch a war of public opinion, further extends occupation of China’s territorial Islands and waters, and can also attack China as the “rules breaker”, “status destroyer “and "military expansionist". If the Philippines eventually loses, it can play a “Sadness" card in the international community, discredit China and slander China to suppress the Philippines in order to vilify the image of China.

. Coming to an end of office, the Aquino III government, because of corruption and other graft issues, witnessed rising opposition of the people on the island, coupled with the rise of the opposition forces on some local areas, the country began to run into a serious unrest. In order to divert public attention, to cover up various contradictions existing at home, Aquino III conducted a series of political gambling, created a so-called "China threat", and acted tough, with intention to challenge the Chinese in order to cater to the domestic populist sentiment.

The Philippines was once a colony of the United States, and currently is an important U.S. ally in the Asia-Pacific region, there are a lot of common strategic interests between the two countries. Since 2009 the United States dished out the "Asia-Pacific rebalancing" concept, the Aquino III government took the initiative to play a "pawn" role, served as an "agent" for and opened the Subic Bay and other strategic ports to the United States. In order to show loyalty to the United States, Aquino III also understood well what the U.S. government intends by the Asia-Pacific rebalancing strategy, took an active step forward to challenge China, then directly filed the South China Sea arbitration case, became a cat’s paw, and stood behind the United States to gain profits, and awaited a chance to further provoke against China.

Aquino III doings also resulted in a lot of criticism inside the Philippines. R. Duterte, Philippine new president, basically gives up the Aquino III diplomatic approach, emphasizes that his government, after announcement of the arbitration award, will not make a provocative statement, and is willing to have direct dialogues and bilateral consultations with China

This Arbitration process in essence is an act of power abuse

The essence of the Philippine arbitration case is a ultra vires, power expansion and power abuse, lack of legitimacy, the Arbitral Tribunal has no authority to make a ruling on the Nanhai- related issues, the main reasons are the following:

According to the relevant provisions of the "United Nations Convention on the Law of the Sea" (referred to as "the UN Convention"), the International Court of Arbitration in the Hague can only accept a relevant case wholly related to marine disputes, but unrelated to a sovereignty dispute case. However, the essence of the Philippine arbitration case involves territorial sovereignty, so the international arbitration court has no authority to accept it.

China is one of the main parties to the UN Convention, officially joined in 1996, and strictly "fulfills its rights and obligations in terms of the UN Convention", and in 2006 on the basis of the provisions of Article 298 of the UN Convention, made a clear statement to exclude the issues involved in maritime delimitation disputes from the compulsory dispute settlement procedures such as arbitration. Therefore, the government of Aquino III, who filed the compulsory arbitration case, has violated the basic principle of "estopple" in international law, and the Arbitral Tribunal has no jurisdiction what so ever over the arbitration case filed by the Philippines.

the priority for the two sides to negotiate. The international documents such as the UN Charter, "Declaration on Principles of International Law" identify the bilateral consultation and negotiation as the primary means of peaceful settlement of international disputes, "the UN Convention" also requires the parties to resolve maritime disputes through negotiations first. Both China and the Philippines in their joint statements, joint communiqués and other bilateral agreements express agreement to resolve the disputes between them through negotiations. But the Philippines's unilateral recourse to the third party to solve the problem, which is clearly contrary to the basic spirit of consultation first.

in the international law. In line with the relevant spirit of international law, the development of any arbitration case must be made by both parties in presence at the same time in order to carry out a substantive discussion. Before announcement of the arbitration award, the consent of both parties also must be obtained, hence ensuing the lawful enforcement. But because the Philippine arbitration case itself is a violation of the spirit of international law, China, certainly, cannot accept it, thus taking the position of "neither involving, nor accepting, and nor recognizing it". Without China's participation in the case, the ruling by the Arbitral Tribunal on the issue is completely void and invalid, cannot produce any binding force on the Chinese side.

Since ancient times, the South China Sea is China's territorial waters naturally, not only can be found in the Chinese historical records, the historical maps albums or textbooks of the United States, Japan, Vietnam, the Philippines and other countries also have a lot of evidence. Thus Chinese sovereignty over the South China Sea Islands and adjacent waters has the historical basis and beyond all dispute, has a solid legal basis, and the dotted-line had been fully formed as early as in the late 1940s. But the "UN Convention" was reached preliminarily in 1982 by various countries, according to "actual fact" principle of international law, as the "UN Convention" later adopted does not have the authority and qualification to rule the legitimacy of the dotted-line emerged much earlier.

So from any point of view, the Arbitral Tribunal has no jurisdiction over the arbitration case, whose behavior of making an award, which is illegal and invalid, is completely contrary to the spirit of the "UN Convention", and is only a political farce in a legal coat. Thus, China does not involve in, nor accept the arbitration, does not recognize nor enforce the ruling, but defends its legitimate rights and interests on the basis of international law and also maintains the integrity and authority of the "UN Convention".

The ruling seriously damages the international rule of law

William Jones, an American expert on international issues, and Global Strategy Information magazine Washington bureau chief believes that as China’s government has repeatedly stated, the temporary Arbitral Tribunal has no right to speak on the issue of territorial sovereignty, … and this interim Arbitral Tribunal cannot make a ruling on the territorial sovereignty, which is completely beyond the scope of international law. …From the beginning, the whole arbitration is to blame China for not complying with international law, or ask it to completely abandon the territorial claims. …to put pressure on China, but also do everything possible to maintain the position of the Philippines. … However, the Philippines new government may adopt a different strategy, because the new president has expressed the hope through negotiations to resolve the dispute, unlike his predecessor, Aquino III.

Heinz Coffman, a retired professor of law at University of Potsdam in Germany, supports Chinese stance on the South China Sea issue, saying that the Arbitral Tribunal established upon the Philippine unilateral request is unreasonable, ….because according to the reached agreement between the two sides, both countries promise by negotiation to solve the emerging dispute. …The provisional establishment of the Arbitral Tribunal only leads to draw a conclusion that some countries want to cook the situation, so that the third partiy have the opportunity to get involved and to impose pressure.

Russian satellite news network military observer V. Baranets believes that the case of the South China Sea arbitration is a political farce dressed in the cloak of the law. …The award of the provisional Arbitral Tribunal is obviously affected by the United States, and China should not accept it. … that the South China Sea issue cannot be resolved by the legal system represented by the temporary Arbitral Tribunal. If the United States continues to interfere in regional affairs, ….the situation in the South China Sea once becomes tense or even chaotic, the stability and development of the Asia-Pacific region and the global political and economic situation at large is bound to be affected.

China wins a growing support

A just cause enjoys abundant support. Regarding the South China Sea disputes, the Chinese position in the Philippine arbitration case has won expression of support to China by more than 70 countries and regional leaders in the world. Since ancient times, the South China Sea is China's inherent territory, cannot be separated, neither can it be easily denied by an individual arbitral ruling. China is unlikely to accept any imposed scheme, but the result of the arbitration is just a piece of printed paper. At present, the constructive attitude to properly control differences, temporarily hold the dispute, to start a dialogue as soon as possible, to promote the South China Sea a sea of cooperation, a sea of peace and a sea of friendship. Cambodian Prime Minister Hun Sen said the outcome of the arbitration is resulted from a political motivation,.. and will have a negative impact on the ASEAN region.

Various sides agree to China's proposal to adopt a negotiated settlement of the dispute. General Secretary of Equatorial Guinea ruling party Osa said that related to territorial and maritime disputes, the two sides concerned should, based on the Charter of the United Nations, and through bilateral consultations and negotiations, reach a peaceful settlement within the scope of international law.

In violation of the "UN Convention", contrary to the "Declaration on the Conduct of the Parties in the South China Sea", and undermining the stability of international relations --- international legal experts denounce the Philippine arbitration case illegal and unreasonable. Abraham Sofaer, former legal adviser to the U.S. State Department said that the international judicial and arbitral institutions … should maintain the respect for limits of the international treaties and reservations by a sovereign state, … but the Arbitral Tribunal had announced jurisdiction over the Philippine "man-made needs", … which damaged credibility of the international judicial and arbitral institutions. Chris O’Mosley, former legal adviser to the Foreign Affairs Department of the United Kingdom, pointed out that the "Declaration on the Conduct of the Parties in the South China Sea" is the official document of common negotiations, … the Philippine side, in defiance of commitment to the "Declaration", and insisting on an arbitration, violates the principle of good faith.

The South China Sea would have been stable without storms. Multinational experts and scholars have criticized the trick played by the countries concerned, called for the return to negotiations and consultations to resolve the dispute. American experts on international issues, the Global Strategy Information journal Washington bureau chief William Jones argued that the temporary Arbitral Tribunal established at the Philippine unilateral request can only lead people come to the conclusion… that some countries think things will deteriorate, allow the third party to have the opportunity to get in. … In order to exert pressure, the U. S. warships are also constantly in the waters to 'show muscle', … the main reasons to drive the situation gradually tense.

S. Dujarric, a spokesman for UN Secretary General said that the Secretary General has urged all parties, through dialogue, to resolve disputes in a peaceful and friendly manner, and … has always hoped ASEAN and China continuously to conduct consultations in the framework of the "Declaration on the Conduct of the Parties in the South China Sea" and … enhance mutual understanding between the parties. Mora, vice president of the Party of the European Left, said that the South China Sea issue should be resolved directly between the two sides concerned, …the settlement of disputes should not be interfered by external forces, …to internationalize the South China Sea disputes is a serious mistake. International Court of Justice former judge A. Koroma stressed that a peaceful settlement of a dispute through negotiations is the practice of international law.... the peaceful settlement of the conflict of interests and friendly co-existence among countries around the South China Sea are the best way to solve the South China Sea disputes.

Heinz Coffman, a former law professor at University of Potsdam in Germany, stressed the South China Sea arbitration case is a political farce dressed in the law cloak, … if the situation in the South China Sea becomes tense and chaotic, stability and development in Asia-Pacific region and political and economic situation in the world at large will be affected. Pakistan political strategist Ali said that China insists on the development of friendly and cooperative relations with all neighboring countries, including the Philippines, … if the two sides can carry out a direct dialogue, the results may be better.

Canada Free Press correspondent in the UN Joseph Klein believes that the "UN Convention" clarifies that it would not end the historic sovereignty, … the Arbitral Tribunal actually went along with the Philippines to bypass the bilateral negotiations, but the bilateral negotiations are repeatedly promised by both sides. … The temporary Arbitral Tribunal behaved autocratically, and undermined the process to resolve a dispute through diplomacy and negotiations, served its own narrow interests and damaged the national sovereignty and international law by its power abuse.

Catherine Merton, East Asia Studies China expert of the University of Sheffield's told reporters that all China’s actions in the South China Sea are not for the purpose of implementting the so-called marine hegemony, … but continue to maintain the historic rights in the South China Sea, and safeguard her legitimate rights. … She believes that arbitration has never been the only way to solve the dispute, and the parties involved should continue to work hard to maintain continuous implementation of the Declaration on the Conduct of the Parties in the South China Sea.

In summary, the so-called South China Sea arbitration case is the product created and cooked by the Philippines, manipulated by the United States behind the scenes, and purposely cooperated by the temporary Arbitral Tribunal, and is a political farce, thus it currently has not enjoyed popular support, and there are leaders of more than 70 countries and regions clearly supportive of China position in Philippines-filed arbitration case. No matter how the situation changes, China is always committed to maintaining peace and stability in the South China Sea region, adheres to the peaceful and friendly consultations and negotiations to resolve the disputes, and promotes a Sea of cooperation, a Sea of peace and a Sea of friendship in the South China Sea with a constructive attitude to properly manage differences through dialogue and consultation.