Xinhua Insight: Chinese officials, experts defend stance on Philippines' arbitration

The South China Sea arbitration initiated by the Philippines is attracting much attention as the final ruling will be announced before the end of June.

Chinese officials and experts have defended China's stance of non-acceptance and non-participation in the case, saying the Philippines' unilateral initiation of the arbitration violates international law.

What is the arbitration about?

On January 22, 2013, the Philippines unilaterally filed compulsory arbitration against China at the Permanent Court of Arbitration in The Hague with respect to the two sides' dispute over what the case paperwork terms "maritime jurisdiction" in the South China Sea .

Since then, the Philippines has obstinately pushed for the arbitration despite China's objections.

On Feb. 7, 2014, the Chinese Foreign Ministry released a Position Paper on the arbitration, saying that it is in essence concerned with territorial sovereignty over several maritime features in the South China Sea.

The issue of territorial sovereignty is beyond the scope of the UN Convention on the Law of the Sea (UNCLOS) and the arbitral tribunal has no jurisdiction over the case, according to the Position Paper.

China has said on many occasions that since the 1970s, the Philippines has illegally seized by force maritime features of China's Nansha Islands in disregard of the UN Charter and the basic norms governing international relations, and this is "the root and direct cause" of the two countries' disputes over the South China Sea.

"The initiation of the arbitration by the Philippines under the UNCLOS is an abuse of international law as it does not satisfy the preconditions set in the UNCLOS," said Li Guoqiang, a researcher at the Institute of Chinese Borderland Studies under the Chinese Academy of Social Sciences (CASS).

"This is malicious prosecution and blackmailing behavior," Li said. "What the Philippines is doing is nothing but a thief crying stop thief."

What is the Philippines' true intention?

Plenty of evidence shows that the Philippines' true purpose in submitting the case is to deny China's territorial sovereignty over the Nansha Islands and legitimize the Philippines' illegal occupation of them, Chinese observers have said.

"Though the Philippines cleverly packaged its claims by not directly mentioning the word 'sovereignty,' any discerning person will discover at first sight that this is only a trick," said Ma Chengyuan, an international law professor at China University of Political Science and Law (CUPL).

According to Xu Hong, director-general of the Department of Treaty and Law under the Chinese Foreign Ministry, on January 23, 2013, the second day after the Philippines launched the arbitration procedure, the Philippines' Department of Foreign Affairs released a Q&A paper in which it clearly described the purpose of the case as to "protect our country's territory and oceanic area," and claimed not to "give up our country's sovereignty."

"There have been more similar declarations by the Philippines. The Philippines has in fact already baldly spoken out its true intention," Xu said.

Arbitration is a practice accepted by the international community as a means of solving legal disputes, noted Zeng Lingliang, an expert on international law at Wuhan University. The Philippines' unilateral move "just utilizes that popular psychology and is deceptive," he said.

Why does China not participate in the case?

China has stated it will never ever accept any imposed solution or unilateral resorting to a third-party settlement on issues of territorial sovereignty and maritime rights and interests.

Zeng explained that territorial issues are subject to general international law, not the UNCLOS.

Regarding maritime delimitation, it falls within the scope of the declaration filed by China in 2006, which excludes disputes concerning maritime delimitation from compulsory arbitration and other compulsory dispute settlement procedures, he said.

However the Philippines has packaged its claims, the essence of the arbitration is still disputes over territorial sovereignty and maritime interests, said Zeng.

Moreover, China and the Philippines have agreed in bilateral documents and the Declaration on the Conduct of Parties in the South China Sea to settle their disputes through negotiation.

"By unilaterally initiating the arbitration, the Philippines has violated its agreements with China, which is dishonorable and a contravention of its international obligations to China," according to Zeng.

"What the Philippines did is illegal, untrustworthy and unreasonable. The so-called 'award' is not binding," said Li at the CASS.

Is the arbitral tribunal authoritative and impartial?

The arbitral tribunal has illegally overstepped its area of authority, said Xiao Jianguo, deputy director-general of the Department of Boundary and Ocean Affairs of the Chinese Foreign Ministry.

"The arbitral tribunal has actually become an agent of the Philippines," Xiao said, calling it "a castle in the air."

Li said that as a state party to the UNCLOS, it is necessary to clarify that China is not opposed to international law including the UNCLOS, but to the arbitral tribunal abusing its power.

Is the arbitration a simple legal case?

The arbitration is not a simple legal affair but "a political provocation under the cloak of law," said Xu.

Chinese Foreign Minister Wang Yi said in March that the Philippines' stubbornness is "clearly the result of behind-the-scenes instigation and political maneuvering."

Several high-ranking U.S. officials have publicly voiced support for the Philippines' move.

Deputy Director of the Chinese Society for Oceanography Zhang Haiwen said that the South China Sea issue became a hot spot since the United States adopted its "pivot" to Asia strategy.

In the context of geopolitics, the arbitration case cannot be treated as a simple legal affair, according to Zhang.

Is China's stance of not recognizing and not implementing the award against international law?

The Chinese Foreign Ministry has stated over and again that China will not recognize or implement the award whatever it might be.

Neither will China accept any country's attempt to use such an award as a basis for bilateral consultations 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, it said.

The so-called "award" made by a tribunal that has no jurisdiction from the very beginning "obviously has no legal effect at all, therefore there is no such thing as implementation," said Ma at CUPL.

"Some people simply cannot wait to jump out and ask China to observe and implement the ruling result even before it is released. I cannot help asking what kind of result they want China to implement," said Xu.

"If the arbitral tribunal just states some legal views on abstract issues not in connection with territorial sovereignty or maritime boundary delimitation, then there will be at most those opinions for us to notice but nothing to implement. If it plans to utilize this award to contain China's sovereign claim or actions in the South China Sea, this move will only testify to the arbitral tribunal's excess of power, so how can the award be valid?" he asked.

Will China lose rights if the award goes against China?

According to international legal experts, such a situation would be possible only when the award was implemented.

However, as China repeatedly stated its stance of non-acceptance and non-participation, and the arbitral tribunal does not have any implementing body, the final ruling will not affect China's maritime rights.

Reaffirming that China's position on the South China Sea issue will never be changed, Xu said the arbitration, alongside with the award, "will not change history and the fact of China's sovereignty over the South China Sea islands and the adjacent waters."

Their acts will not shake China's resolution and determination to safeguard its sovereignty and maritime rights and interests, nor will they affect the policy and position of China to resolve relevant disputes through direct negotiations and to work together with other states in the region to maintain peace and stability in the South China Sea, said Xu.

"We hope that any party involved will not be hijacked by this arbitration," he said.

This is a fight of will power, said Ouyang Yujing, director-general of the Chinese Foreign Ministry's Department of Boundary and Ocean Affairs.

"There is no room for concession when it comes to territorial sovereignty and maritime rights," he said.

Is China "isolated," as some claimed?

According to the Chinese Foreign Ministry, more than 40 countries have expressed support for China's stance on the South China Sea, including ASEAN countries and countries out of the region.

In the Doha Declaration adopted on May 12 at the seventh ministerial meeting of the China-Arab States Cooperation Forum, 21 Arab states said they support China in peacefully settling territorial and maritime disputes with concerned countries through consultation and negotiation in accordance with bilateral agreements and regional consensus.

The declaration stresses that the rights entitled to sovereignty states and State Parties of the UNCLOS to choose dispute settlement ways independently should be respected.

"This shows the international community's respect for and support to China's stance of resolving the South China Sea issue via negotiation," said Zeng at Wuhan University.

"The right and wrong do not depend on which side speaks louder," said Director-General Xu.

"Some Western countries have voiced views unfavorable to China on the arbitration case, but the group of Western countries itself cannot represent the whole international community," he said. Endi