Financial Mirror (Cyprus)

China-Philippine­s: A dispute over arbitratio­n

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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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