The Nansha Islands has been China’s territory since ancient times. Successive Chinese governments have exercised jurisdiction over the Nansha Islands and relevant waters through such means as administrative management, military patrol, production and business operation and rescue activities at sea. During World War II, the Nansha Islands was invaded and illegally occupied by Japan. When the war ended, Japan returned the Chinese territories it had stolen from China in accordance with the Cairo Declaration and the Potsdam Proclamation. China recovered the Nansha Islands and asserted its sovereignty and reinforced jurisdiction through such measures as compiling their official names, publishing maps, setting up administrative units and stationing troops. In the several decades that followed, it was widely recognized by the international community that the Nansha Islands belongs to China and not a single country raised objections to it. The scope of the Philippines’ territory is defined by the 1898 Treaty of Peace Between the United States of America and the Kingdom of Spain (Treaty of Paris), the 1900 Treaty Between the Kingdom of Spain and the United States of America for Cession of Outlying Islands of the Philippines (Treaty of Washington) and the 1930 Convention Between the United States of America and Great Britain Delimiting the Boundary Between the Philippine Archipelago and the State of North Borneo (1930 Convention between the U.S. and UK). These treaties have clearly defined that 118 degrees east longitude is the western limit of Philippine territory. China’s islands and reefs in the South China Sea are all located west of the line. The Nansha Islands and Huangyan Dao are well beyond the scope of Philippine territory defined by the above-mentioned treaties. Since the early 1970s, the Philippines violated the above-mentioned treaties that defined the Philippines’ territory and pursued territorial expansion by invading and illegally occupying eight islands and reefs of China's Nansha Islands. In June 1978, the Philippines issued presidential Decree 1596, illegally claiming sovereignty over some islands and reefs of China’s Nansha Islands by using a so-called name of “Kalayaan Island Group”. In 2009, the Philippines revised its territorial sea baseline act, blatantly listing some of China’s Nansha islands and reefs and Huangyan Dao as Philippine territory.
On 23 January 2013, the Philippines unilaterally initiated the South China Sea arbitration, in violation of its agreement with China enshrined in bilateral documents and the DOC on resolving disputes through negotiations and consultations. It also violates the provisions of UNCLOS, abused its dispute settlement procedures and infringed upon China’s right under UNCLOS to independently choosing dispute settlement mechanisms and procedures. The arbitration is thus illegal and null and void. The Chinese government does not accept or participate in it, and will never recognize the so-called “award”.
By taking advantage of some provisions of UNCLOS, the Philippines attempts to deny China's territorial sovereignty and maritime rights and interests. The Philippines’ motive is to cover up its invasion and illegal occupation of some islands and reefs of China’s Nansha Islands. By not accepting or participating in the arbitration unilaterally initiated by the Philippines, China is not only upholding its rights under international law but also demonstrating its commitment to international law. The reasons are as follows:
First, unilaterally initiating the arbitration and violating the agreement to resolve disputes through bilateral negotiations is an act of dishonoring its commitment on the part of the Philippines. “Pacta sunt servanda” is a basic principle in international law. China and the Philippines have already reached agreement in bilateral documents on resolving relevant disputes in the South China Sea through bilateral negotiations. Paragraph 4 of the DOC signed by China and ASEAN Member States, including the Philippines, in 2002, also clearly stipulates that “the parties concerned undertake to resolve their territorial and jurisdictional disputes by peaceful means, through friendly consultations and negotiations by sovereign states directly concerned”. On that basis, China and the Philippines have chosen negotiation as the means to resolve relevant disputes and excluded third-party settlement, including arbitration. The Philippines still issued a statement jointly with China in 2011 undertaking to resolve disputes through negotiations and consultations. Just a year later, however, the Philippines unexpectedly initiated arbitration unilaterally without informing China in advance or acquiring China’s consent, an act which contravened the Philippines international obligation to China.
Second, the unilateral initiation of arbitration by the Philippines is a violation of UNCLOS and an abuse of arbitral procedures provided for by UNCLOS. Article 280 of UNCLOS says, “Nothing in this Part impairs, the right of any States Parties to agree at any time to settle a dispute between them concerning the interpretation or application of this Convention by any peaceful means of their own choice.” Article 281 says, “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.” Article 283 says, “When a dispute arises between States Parties concerning the application of this Convention, the parties to the dispute shall proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means.” Furthermore, given the fact that China and the Philippines have made a clear choice on the means and procedures of settling their disputes, third-party settlement procedures provided for in UNCLOS shall not apply.
Third, the unilateral initiation of arbitration by the Philippines is a violation of the right to seeking dispute settlement of its own choice that China enjoys as a State Party to UNCLOS. The Philippines’ requests are, in essence, about territorial sovereignty and maritime delimitation. Territorial issues are subject to general international law, not UNCLOS. The declaration on optional exceptions China made in 2006 in accordance with Article 298 of UNCLOS excludes disputes concerning maritime delimitation, historic bays or titles, as well as military and law enforcement activities from the dispute settlement procedures provided for in UNCLOS. About 30 countries, including China, have made similar declarations, which form an integral part of UNCLOS. The Philippines, by packaging its claims, maliciously circumventing China’s declaration and unilaterally initiating arbitration, has violated the right to seeking dispute settlement of its own choice that China enjoys as a State Party to UNCLOS and undermined UNCLOS' authority and integrity.
Fourth, the Philippines tries to serve its purpose by not telling the truth. The Philippines should have engaged in close consultations with China to settle their South China Sea disputes and manage the situation on the sea in line with its agreement with China to seek solution through negotiations and consultations. However, the Philippines has on the one hand refused to handle the disputes as agreed, and on the other hand claimed that the bilateral means have been exhausted. The Philippines says that the arbitration has nothing to do with territorial sovereignty and maritime delimitation, while its focus is all on China's sovereignty and maritime jurisdiction. The Philippines has submitted its requests on itself, while it has never engaged in consultations with China even on the very existence of “disputes concerning the interpretation or application of the Convention” and other matters.
Fifth, the Arbitral Tribunal, in disregard of the fact that China and the Philippines have chosen to settle relevant disputes through negotiations and consultations and the declaration on optional exceptions China has made in pursuance with UNCLOS, has violated UNCLOS and expanded and abused its power at will by hearing the case and exercising jurisdiction. The acts of the Arbitral Tribunal have worsened the tensions between China and the Philippines, affected the stability of regional and international maritime order, and contradicted its purpose of peaceful settlement of international disputes.
Based on what is stated above, the compulsory settlement procedure provided for in UNCLOS does not apply to the disputes between China and the Philippines. The Arbitral Tribunal set up thereof has no jurisdiction. Its forceful handling of the case and exercise of jurisdiction is willful expansion and abuse of power in nature. China does not accept or recognize such arbitration which has been illegal from the very beginning. The so-called “award” of the arbitration is thus not binding.
The Philippines intends to use the arbitration to deny China’s territorial sovereignty and maritime rights and interests in the South China Sea, discredit China, and seek support for its own invasion and illegal occupation of some islands and reefs of China’s Nansha Islands. The move by the Philippines constitutes a serious threat to regional peace and stability. China will not accept or recognize the “award” whatever it might be. Neither will China accept any country’s attempt to use such an “award” as a basis for consultations with it on the South China Sea issue, nor will it accept any positions or activities proposed and conducted by any country based on such an “award”.