The Philippines’Arbitration Pleading Bodes Ill for South China Sea Disputes

THE Philippines submitted on March 30 a memorial to the arbitral tribunal at The Hague， urging it to invalidate Chinas“nine-dash line” in the South China Sea. The Philippines first initiated arbitral proceedings against China over the South China Sea issue on January 22， 2013. In blatant disregard of Chinas strong opposition， the Philippines resorted to international jurisdiction to assert its claims to the relevant South China Sea islands， so exploiting the international communitys propensity to sympathize with the underdog. The Philippinesunilateral denial of Chinas sovereignty over certain South China Sea islands and maritime areas takes no consideration of historical facts， and is consequently unacceptable to the Chinese government. On April 1， a spokesperson from Chinas Foreign Ministry expressed Chinas stance on the Philippines arbitration request –that of non-acceptance， non-response， and non-participation. The Philippines unilateral action will inevitably aggravate tensions as a whole arising from sovereignty disputes over islands and waters in the South China Sea.

International Judicial Intervention Not the Solution

The UN Convention on the Law of the Sea （UNCLOS） came into effect in 1994. The same year， the UN established in Hamburg the International Tribunal for the Law of the Sea （ITLOS） that provides a judicial platform for settling disputes. As one of the UNCLOS contracting parties， China undertakes the relevant UNCLOS obligations and resolutely upholds the arbitral tribunal as constituted under UNCLOS Annex VII. The South China Sea disputes， however， are not applicable to international judiciary intervention.

First， the disputes involve China， the Philippines， Vietnam， Malaysia， and Brunei， as well as the region of Taiwan. All have longstanding overlapping territorial and maritime claims in the South China Sea. On March 30， the Philippines submitted a 4，000-page memorial to the international tribunal that challenges China. However， the Philippines also has disputes with Vietnam， Brunei， and Taiwan over related islands and exclusive economic zones （EEZs） in the South China Sea. In disregarding the diverse disputes in this area and focusing its international lawsuit solely on Chinas nine-dash line， the Philippines has violated the principle of consistency and non-discrimination under the general rule of law.

Chinas sovereignty claims in the South China Sea are mainly based on its historical rights and on international maritime laws. The nine-dash line as Chinas demarcation line in the South China Sea can be traced back to 1948， when the national government of the Republic of China （1912-1949） justified its claims in the area. The Peoples Republic of China， as the legitimate succeeding regime， asserted in 1958 its sovereignty and rights over the related islands and waters in the South China Sea， based on the nine-dash line and a declaration of its territorial waters. Since then， the Chinese government has been consistent in its campaign to safeguard the countrys legal rights in this controversial area， but has never discriminated against any country. Taiwan， meanwhile， is also an adamant supporter of the nine-dash line. Since the 1970s， neighboring countries in the South China Sea have successively taken advantage of turbulent domestic situations that have arisen in China by occupying most islands in the area. This has complicated South China Sea sovereignty disputes. In disregarding the fundamental facts of the matter， the Philippines arbitration request against China reveals the countrys ulterior motive and also impedes resolution of the related disputes. The Philippines assumption that defeating China through an international lawsuit will enable it to call the shots on the South China Sea issue， and thereby legitimately claim the Nansha Islands it has occupied， is naive.

Unless the related parties in the South China Sea disputes agree to show goodwill through negotiation， sovereignty disputes over the area will remain unresolved， whether or not the international arbitral tribunal makes its judicial interpretation of the nine-dash line. The Philippine government is now trying to claim the moral high ground by filing for arbitration on the basis that， as a small country facing China， and all that this implies， it has no choice but to resort to the international tribunal to safeguard its rights. It has even gone so far as to assert that the lawsuit against China is a main contribution to the international maritime judicial system. A popular Chinese cyber phrase sums up the Philippines stance as one that is “very foolish， very ingenuous.” The underlying motive is simply to legitimize the Philippines occupation of Chinas South China Sea islands by taking advantage of the U.S. rebalance strategy in the Asia-Pacific region while milking media sympathy from the international community.

No More than a Farce

The Philippines has the right， according to the relevant UNCLOS regulations， to submit a pleading for international judicial arbitration on disputes over maritime territory and related rights and interests. The Chinese government has never denied the reasonableness of such actions. Solving territorial disputes between countries， however， calls more for reliance on the principles of cooperation and friendship than on international lawsuits. Promoting inter-state friendship and cooperation constitutes one of the three principles of the UN Charter. It is also the cornerstone of all international judicial systems. Yet in spite of the Chinese governments solemn opposition， the Declaration on the Code of Conduct on the South China Sea that China and ASEAN countries signed in 2002， and the fundamental reality of the good-neighborly relationship between the two countries， the Philippines unilaterally submitted the Sino-Philippine dispute over jurisdictional rights in the South China Sea for international arbitration. All things considered， this is not a rational move.

The Chinese government has always dealt with the South China Sea disputes in the spirit of good-neighborly friendship， mutual benefit， and cooperation with the neighboring ASEAN countries. In the early 1990s， Deng Xiaoping laid down the principles of “grasping sovereignty， shelving disputes and co-developing the resources.” Since 2000， China has emphasized the goal of creating an amicable， prosperous， and peaceful neighborly environment in its relationship with ASEAN. The China-ASEAN Free Trade Area was officially established in January 2012， and in 2013， bilateral trade of the two economies surpassed US $443.6 billion， up 10.9 percent over the previous year. In 2012， bilateral trade between China and the Philippines reached a record US$36.7 billion. Of the 10 ASEAN countries， the Philippines is Chinas sixth-largest trading partner. Premier Li Keqiang said in September 2013 at the 10th China-ASEAN Expo in Nanning that bilateral trade between China and ASEAN should strive to surpass US $1 trillion by 2020. China and the Philippines also have broad prospects for economic and trade cooperation and joint development of South China Sea resources. Yet under this background of bilateral friendship and cooperation， the Philippine government had no scruples about making abusive comments about and displaying obnoxious behavior towards China. It thus seriously compromised the goodwill of the Chinese government and people， their friendship and bilateral friendly cooperation. These actions moreover provoked misunderstanding and even hostility towards China among the people of the Philippines on the South China Sea issue， so souring friendship and cooperation that had existed in spite of the South China Sea disputes.

To strengthen the reasonability of its international judicial arbitration claim against China， the Philippine government has in recent years incited other ASEAN members to join with it in suing China. Its apparent aim has been for the Philippines to represent ASEAN， in keeping with its interests， by raising the lawsuit on the associations behalf. But no other ASEAN member expressed support on March 30， or opted to join the Philippines in suing China. Thus far， the Philippines has chosen unilaterally to submit the memorial for arbitration on the sovereign disputes in the South China Sea. In so doing it has isolated itself from other ASEAN members.

The Declaration on the Code of Conduct on the South China Sea signed by China and ASEAN in 2002 is by far the most important document on the bilateral relationship of any in the South China Sea disputes. It explicitly states that China and ASEAN will conduct dialogues and discussion on South China Sea sovereignty and interests， so guaranteeing a peaceful and reasonable path to resolving the matter. In the ASEAN Regional Forum ministerial conference， Chinese foreign minister Wang Yi stated that the Chinese government would initiate negotiations on signing a binding Code of Conduct on the South China Sea in efforts to resolve the issue. So far， the two parties have completed three rounds of dialogues on how to achieve unanimity with regards to criteria for conduct in the South China Sea.

No matter how serious the disputes are， if the two countries carry out negotiations within the China-ASEAN friendship and cooperation framework， there is no bridge that cannot be crossed， as the old Chinese saying goes. But Manila has adopted an aggressive stance. On one hand， it has strengthened military cooperation with Japan and the U.S.， and shown no compunction about reopening its Subic Bay naval and air military base in the South China Sea， so endeavoring to “contain” China； on the other， it has gone whining to the international arbitration court. These actions fundamentally violate the principle of negotiation applicable to the South China Sea disputes.

Arbitration Wont Force China into a Corner

Whether provoking conflicts under the pretext of being bullied by China or threatening China with international judicial arbitration， either way the Philippines is doomed to failure. The nine-dash line is the traditional line of demarcation whereby China deals with islands in the South China Sea and related waters. It has ample historical and legal basis.

The Chinese government has adopted a position of “nonacceptance and non-participation” on the lawsuit. This is not due to intimidation， but rather with the aim of registering a firm response to the Philippines coarse action that disregards the reality of China-ASEAN friendly cooperation， and which is contrary to the Declaration on the Code of Conduct on the South China Sea. Chinese people are not afraid of confronting the Philippines before a court of law. But with reason on our side， why should we follow where the Philippines leads？

A review of the Philippine governments previous actions is in order. In 1999， a Philippine landing vessel illegally grounded on Renai Reef， claiming it had been stranded， so seizing the reef. In April 2012， Philippine warships stopped and searched Chinese fishing boats that had sailed into Huangyan Island waters. In June 2013， Philippine soldiers shot at a Taiwan fishing boat， killing a Taiwanese fisherman. These events imply that Manila should consider its past deeds and the reasons behind them.

The Philippines submission of a memorial for arbitration， however， has undoubtedly further complicated the situation in the South China Sea. The “factors from outside of the region” are growingly aggressive， and disputes over maritime territory in East Asia are becoming a major threat to regional security situation. In view of this negative trend of development， all the Asian-Pacific countries that hope for regional stability， cooperation and prosperity must maintain vigilance.