On January 22, 2013, the Philippines instituted arbitral proceedings against China under the United Nations Convention on the Law of the Sea (UNCLOS) with regard to disputes between the two countries in the South China Sea. On March 30, 2014, the Philippines submitted its Memorial to the Arbitral Tribunal. Such a unilateral act, however, is neither consistent with the dispute settlement mechanisms provided by the UNCLOS nor in conformity with the general international arbitral practice. China’s refusal to participate in the arbitration has an ample jurisprudential basis.
First of all, the Chinese government has issued a written statement precluding the jurisdiction of the Arbitral Tribunal over this case. In 2006, the Chinese government submitted a declaration to the Secretariat of the United Nations under Article 298 of the UNCLOS excluding issues of territorial sovereignty, maritime delimitation and military activities from a compulsory third-party settlement mechanism. It is important to note that China is not alone in making this kind of declaration. Thirty-four members of the UNCLOS, including the permanent members of the Security Council of the United Nations, have made similar declarations. The arbitration raised by the Philippines is in essence a dispute concerning sovereignty over the insular features in the Spratly Islands, and the maritime delimitation of certain waters in the South China Sea. The origin of the dispute between China and the Philippines in the South China Sea is that, since the 1970s, the Philippines has been illegally occupying China’s Nanshan Island（Mahuan Dao), Flat Island (Feixin Dao), Thitu Island (Zhongye Dao), Loaita Island (Nanyue Dao) , North East Cay (Beizi Dao), West York Island (Xiyue Dao), Loaita Nan (Shuanghuang Shazhou) and Commodore Reef (Siling Jiao).
Second, an ante hoc agreement between China and the Philippines has precluded international arbitration as a solution to the South China Sea dispute. As stipulated in Article 281 (a) of the UNCLOS, if the parties to a dispute concerning the interpretation or application of the UNCLOS have agreed to seek settlement of the dispute by a peaceful means of their own choice, the procedures provided by this Part apply only where no settlement has been reached by recourse to such means and the agreement between the parties does not exclude any further procedure. The arbitration in question clearly does not meet these conditions. First, China and the Philippines have agreed to resolve disputes concerning territorial sovereignty and maritime jurisdiction through consultations and negotiations. Such agreements include Article 4 of the Declaration on the Conduct of Parties in the South China Sea as signed by China and the ten ASEAN members in 2002, the Joint Press Release of China and the Philippines issued by the heads of state in 2004 and the Joint Statement of China and the Philippines issued by the heads of state in 2011. Second, negotiation about the subject matter of the arbitration as raised by the Philippines has never been conducted between China and the Philippines. China has invited the Philippines several times to establish a consultation mechanism on maritime issues, but these requests have been ignored.
Finally, considering the functional role of international arbitration, this unilateral bid for arbitration does not help to solve the dispute. According to the general practice of international dispute settlement, only legal disputes can be submitted to international judicial and arbitration organs. By contrast, political and diplomatic problems cannot be gauged by legal means. The South China Sea dispute involves complex historical, political and diplomatic factors, and so the most effective and long-term way to solve it is through negotiation and consultation. Any third party that does not adequately understand the background - especially of the international judicial and arbitration organs - cannot help two countries find a real solution to the dispute. If the Arbitral Tribunal decides that it has the jurisdiction over this case, then the international community will challenge its impartiality.
The Philippines insists on submitting the case for arbitration due to three main considerations. First, it attempts to influence international public opinion and put pressure on China through the international community; second, it intends to divert the domestic public’s attention from the embarrassing situation caused by the huge failure of its reckless provocation at Huangyan Island; third, by initiating the arbitration, it seeks to hype the South China Sea and reap illegal profits.
The Philippines should be fully aware of the complexity and sensitivity of the South China Sea dispute, and return to the right track of settling the dispute quickly through negotiations so as to avoid further damaging bilateral relations. China has long tried to be a good neighbor and partner with its neighboring countries. Recently, China has put forward the ideas of “friendliness, honesty, mutual benefit and tolerance" when dealing with its neighbors as well as an initiative to build the China-ASEAN Community of Destiny. China’s peaceful development will bring real benefits to the neighboring countries, especially Southeast Asian ones. The Philippines will only become increasingly isolated in ASEAN and damage its own interests.
Wu Shicun, President of China National Institute for South China Sea Studies