Commentary: China's stance on S.C. Sea arbitration is to defend rather than disobey int'l law

China's position of neither participating in nor accepting the results of the forceful arbitration initiated by the the Philippines over the disputes in the South China Sea does not mean the country disobeys international law, on the contrary, it's defending it.

The initiation of the arbitration by the Philippines in January 2013 under the UN Convention of the Law of Sea (UNCLOS) is abuse of international law as the initiative does not satisfy the preconditions set in the Convention.

Peacefully resolving international disputes is an important principle in the UNCLOS. Compared to other measures such as negotiation and consultation, compulsory arbitration is a secondary and complementary method. The application of it has to meet at least four preconditions.

First, the crux of the subject matter of the arbitration is the territorial disputes caused by the Philippines' illegal occupation since the 1970s of some islands and reefs in China's Nansha Islands, maritime delimitation disputes, and the evolution of the contemporary law of the sea.

The issue of the territorial disputes is outside the scope of the UNCLOS, thus neither can the Philippines initiate a compulsory arbitration under this convention, nor does the arbitral tribunal in the Hague, the Netherlands, have the jurisdiction to adjudicate upon the case.

Territorial disputes are governed by the UN Charter and general international law, not the UNCLOS.

Second, on the subject of maritime delimitation, China made a declaration in 2006 in accordance with Article 298 of the UNCLOS, excluding disputes such as maritime delimitation, historical titles or rights, and military activities from the compulsory proceedings.

China's declaration of the optional exception means it will not accept the compulsory mechanism of Part 15 of the UNCLOS in dealing with the overlapping maritime claims or delimitation issues.

More than 30 countries have made similar statements. The declarations made by China and other countries constitute an integral part of the Convention and should be respected.

Third, both China and the Philippines have committed themselves many times to resolving disputes between them through bilateral negotiations and consultation. Therefore, the Philippine submissions are neither suitable for compulsory arbitration at all, nor there is any basis for the formation of the tribunal.

From 1995 to 2011, there were at least six joint statements between the two countries repeatedly reaffirming negotiation as the means for settling their disputes. The mutual understanding was also reflected in the Declaration on the Conduct of Parties in the South China Sea (DOC) signed in 2002 by China and the Philippines, among others. The DOC emphasizes that negotiations shall be conducted by the states directly concerned. All these obviously have produced the effect of excluding any means of third-party settlement.

Fourth, the basic requirements for launching the compulsory procedure of the UNCLOS have not been satisfied.

According to Article 280, 281, 282, and 283 of the UN Convention, there are several procedural preconditions, namely: the means of their own choice prevails, and such means shall be first resorted to and exhausted, when a dispute concerning the interpretation or application arises, parties shall proceed to an exchange of views.

Given the fact that China and the Philippines have made a clear choice of the means and procedures of settling their disputes, and given that the Philippines has never fulfilled its obligation to have meaningful talks or a full exchange of views with China, the Philippines violated the UNCLOS and abused the procedures under it.

Furthermore, the tribunal in The Hague has taken a biased standing in favor of the Philippines, and has lost its ground of impartiality and justice.

The compulsory settlement procedure provided for in the UNCLOS does not apply to the disputes between China and the Philippines at all. The tribunal set up thereof has no jurisdiction. The Philippines' forceful arbitration initiative and the tribunal's exercise of jurisdiction are willful abuses of the UNCLOS and power, and have been unlawful from the very beginning.

It is clearly seen that this case brought forth by the Philippines is not simply a legal case, it is political provocation under the cloak of international law with some Western powers behind it. The Philippines intends to use the arbitration to deny China's sovereignty in the South China Sea, and to seek support for its illegal occupation of parts of China's Nansha Islands.

As always, China firmly opposes the arbitration case, and will neither participate in the arbitration process nor accept the outcome. China will remain committed to resolving the disputes peacefully through negotiations and consultations. Endi