China's Position on the Territorial Disputes in the South China Sea between China and the Philippines

by Zhang Hua, Spokesperson of the Embassy of the People's Republic of China in the Republic of the Philippines

On March 30, the Philippine Department of Foreign Affairs stated that it submitted its Memorial to the Arbitral Tribunal that is hearing the case it brought against China under the United Nations Convention on the Law of the Sea in January 2013. A lot of media friends ask for comments on this issue. In order that China's position is clearly understood, I would like to elaborate on the following issues.

1. The Philippines' initiation of and push for international arbitration has undermined China-Philippines relations.

Under normal circumstances, submission of dispute to international arbitration requires an agreement reached between the two parties concerned. Yet, the Philippine side had failed to notify the Chinese side, not to mention seeking China's consent, before it actually initiated the arbitration. After the Philippine side initiated the arbitration, the Chinese side promptly made its position clear that China does not accept the arbitration. The Philippine side, in disregard of China's position, has insisted on going ahead with the arbitration. What the Philippine side did seriously damaged bilateral relations with China. We find it very hard to understand these moves of the Philippines and we are deeply disturbed by and concerned with the consequence of such moves.

2. Why does China not accept the arbitration?

First, China is committed to resolving its disputes with the Philippines through bilateral negotiations.

China and the Philippines have between them territorial and maritime disputes. And it is just natural that disputes might exist between neighbors. What is important is how to resolve the disputes.

In both international law and international practices, direct negotiation between countries concerned is the most common and preferred way to resolve such disputes. Negotiations may well take time, but agreement reached through negotiations is acceptable to both parties, and is hence the most equitable and durable. International justice or arbitration is one way of settling international disputes, but it does not offer a solution to all problems. In reality, there have been quite a number of cases where international judicial or arbitral bodies passed a ruling, but relevant issues still remained unresolved.

It is advisable to note that to resolve disputes over territory and maritime rights and interests through negotiations by the sovereign states directly concerned is an important consensus contained in the Declaration on the Conduct of Parties in the South China Sea signed by China and all ASEAN countries, the Philippines included. Now that the document is signed, all parties should honor their commitment. Moreover, China and the Philippines also have reached explicit consensus at the bilateral level on settling disputes through negotiations. In the joint statement on the issue of Nansha Islands released in August 1995, China and the Philippines agreed that "a gradual and progressive process of cooperation shall be adopted with a view to eventually negotiating a settlement of bilateral disputes". In the Joint Statement Between China and the Philippines on the Framework of Bilateral Cooperation in the 21st Century issued in May 2000, the two sides agreed "to promote a peaceful settlement of disputes through bilateral friendly consultations and negotiations in accordance with universally recognized principles of international law, including the 1982 United Nations Convention on the Law of the Sea". In September 2011, China and the Philippines issued a joint statement, in which leaders of the two countries "reiterated their commitment to addressing the disputes through peaceful dialogue."

China has had rich practices in successfully settling boundary, territorial and maritime disputes through negotiations. China's 14 land neighbors all have vastly different national conditions. On the basis of respecting historical facts and international law and in the spirit of equality and mutual understanding, China has conducted peaceful and friendly negotiations and consultations with these countries and settled most of the boundary and territorial issues in an equitable and reasonable way. China has so far successfully solved the boundary issues with 12 of its land neighbors, and delineated and demarcated 20,000 kilometers of boundary, which accounts for 90% of China's total land boundary with neighbors. China's position and practices are the same concerning maritime disputes, which came up at a relatively later time. In 2000, China and Vietnam equitably delineated the maritime boundary in the Beibu Gulf and, along with it, signed the Agreement on Fishery Cooperation in the Beibu Gulf. We see no reason why China should abandon such successful practices that it has upheld for long.

Second, China's refusal to accept the arbitration is an exercise of its right under international law.

According to international law, China has every right not to accept the arbitration initiated by the Philippines. This is also in conformity with international practice.

The Philippines' initiation of arbitration is based on the United Nations Convention on the Law of the Sea. However, the framework of the Convention is not applicable to all maritime issues. First, the disputes between China and the Philippines are principally territorial disputes over islands, which are not covered by the Convention. Second，according to the Convention, in case of disputes over territory, maritime delineation and historic title or rights, a signatory to the Convention may refuse to accept the jurisdiction of any international justice or arbitration as long as it makes a declaration. So far, 34 countries have made such declarations based on this provision. China made its declaration back in 2006. So why can't China exercise its lawful right?

In international practice, when their major national interests or positions are involved, many countries have taken the position of not accepting the jurisdiction nor enforcing the rulings of related international litigation or arbitration. Among them are both big countries like the United States and small and medium-sized countries. This is a commonplace practice.

To accuse China of disobeying international law on the ground that it has not accepted the arbitration is an act of applying "double standards". This is not fair to the Chinese side. And it does not conform to the true spirit of international rule of law. In fact, and much to the contrary, China's refusal to accept the arbitration submitted by the Philippine side is an act truly in keeping with the law.

Third, a resort to arbitration does not meet people's expectations for friendship in both China and the Philippines.

Territorial and maritime disputes are not the entirety of the China-Philippines relationship. The underlying trend of this relationship remains good-neighborliness and friendship. China-Philippines friendship has a long and profound history and enjoys strong and extensive public support. It also meets the practical need for both countries to pursue common development. For the Chinese people, to avoid lawsuit is part of the Chinese culture and tradition. And the Philippine people also value friendship and good faith. We see every reason for both sides to sit down and resolve problems through negotiations instead of taking the issue to court.