China-Philippines: A dispute over arbitration
The occupation by the Philippines of some islands and reefs of China’s Nansha Islands in the South China Sea since the 1970s is the crux of this dispute between the two countries. Moreover, after the entry into force of the UN Convention on the Law of the Seas (UNCLOS), the dispute became very complex and sensitive. China considers this occupation as illegal for the following reasons: Chinese activities in the South China Sea date back to over 2,000 years ago. China was the first country to discover, name, explore and exploit the resources of the South China Sea Islands and the first to continuously exercise sovereign power over them.
A series of international treaties (US-Spain of 1898, USGreat Britain of 1930 and US-Spain of 1990) clearly define the territory of the Philippines, confining it to the Philippines islands, having nothing to do with any of China’s maritime features in the South China Sea.
The Chinese government firmly opposed further actions taken by the Philippines. This is the case of the promulgation on 11 June 1978 of the Presidential Decree No. 1596 by which the Philippines claimed sovereignty over some features in the Nansha Islands and constituted this vast area as a new municipality of the province of “Palawan”, entitled “Kalayaan”. The climax, however, came when in January 2013 the Philippines unilaterally filed an arbitration case within the framework of UNCLOS in an attempt to deny China’s territorial sovereignty over the Nansha islands. China firmly denied either to accept or to participate in the unilateral arbitral proceeding, explaining that its position is to uphold its lawful rights in accordance with the international law. We understand better this position, if we take into account the definition given by Professor Oppenheim in his Treatise of International Law, Vol. II, p.21, “Arbitration means the determination of a difference between states through a legal decision of one or more umpires or of a tribunal, other than the International Court of Justice, chosen by the parties.” The phrase “chosen by the parties” explains well why China considers the move of the Philippines as a unilateral action.
Moreover, the position of China is based on the following: under Article 4 of the “Declaration of Conduct” signed by China and ASEAN countries in 2002, including the Philippines, “the parties concerned undertake to resolve their territorial and jurisdictional disputes by peaceful means, through friendly consultation and negotiations.” Contravening this obligation, the Philippines simply shut the door to the dialogue and went unilaterally to arbitration.
China also invokes Articles 280 and 281 of UNCLOS to support its stand that the Philippines abused the arbitral proceedings of UNCLOS which are not applicable to the dispute. In this respect, China made a declaration in accordance with Article 298 of UNCLOS excluding disputes regarding such matters as those related to maritime delimitation, historic bays or titles, and military and law enforcement activities from compulsory dispute settlement procedures, as set out by UNCLOS, including arbitration.
China considers the Philippines’ South China Sea arbitration as a political provocation under the cloak of law. China’s way of addressing territorial and maritime rights disputes is through bilateral consultation and negotiations, which has proven effective, if we take into account that China has properly settled boundary issues with 12 of its 14 neighbours. Moreover, China has solemnly declared that it remains committed to the freedom of navigation and overflight in the South China Sea enjoyed by all countries in accordance with international law.
In view of the above, China, as stated by its government, will neither accept nor recognise the outcome of arbitration. As a result, it was decided that China will not exchange views with any country on the basis of the verdict to be reached by the Tribunal, and will not accept any claims by any country, organisation and person based on the Tribunal’s verdict.