China-Philip­pines: A dis­pute over ar­bi­tra­tion

Financial Mirror (Cyprus) - - FRONT PAGE -

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.

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