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 States 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 States 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.
3. It is China’s sincere wish that the disputes between China and the Philippines will be settled through bilateral negotiations.
China has long exercised sovereignty over the Nansha Islands. After the Second World War, China recovered the Nansha Islands occupied by Japanese aggressors in 1946 and took a series of steps to confirm and reaffirm its sovereignty over the Nansha Islands. At that time, the Philippines, an independent country already, made no objection to China’s moves. It was only after oil reserves were discovered in the 1970s in the waters surrounding the Nansha Islands that the Philippines began to claim sovereignty over these islands and sent troops to occupy some of the islands and reefs. The Chinese side has for many times made diplomatic representations with the Philippine side over its behavior and demanded that the Philippines stop infringing upon China’s sovereignty and jurisdiction.
Meanwhile, acting in the larger interest of China-Philippines relations and peace and stability in Southeast Asia, and proceeding from China’s consistent approach in handling such issues, China has adhered to resolving its disputes with the Philippines through negotiations. Starting from the 1970s, the two sides have exchanged views many times on relevant disputes and made some positive progress. In 1988, in his meeting with then Philippine President Corazon Aquino, Chinese leader Deng Xiaoping put forward the constructive approach of pursuing “joint development “ in handling the disputes, which received positive response from the Philippine leader. The two sides have also made some headway in this respect and carried out some maritime cooperation, which was widely welcomed and applauded internationally.
To put the negotiations and consultations between China and the Philippines on a more institutional basis, China officially proposed to the Philippine side establishment of a “regular consultation mechanism on maritime issues” in 2010. The Philippine side indicated that it would study the proposal, but has since given no reply. In 2012, China proposed that the “CBM Working Group” established in 1999 be restarted, but has not received any response from the Philippine side. The Chinese side has found it very hard to understand why the Philippine side should unilaterally shut the door to negotiations and consultations.
I would like to emphasize that China’s stance of neither accepting nor participating in the arbitration does not change and will not change. Forcing the arbitration is not conducive to the settlement of the disputes on the South China Sea between China and the Philippines, it will not change the fact that China has sovereignty over the Nansha Islands, nor will it shake China’s will and resolve to safeguard its national sovereignty. We hope that the Philippine side will correct its mistake and come back to the right track of resolving the disputes through bilateral negotiations.
4. China’s Basic Position on the Issue of the South China Sea
The core of the South China Sea issue rests with the territorial disputes on islands and reefs, and overlapping claims on maritime rights and interests in waters of the South China Sea, which are caused by the illegal occupation of some islands and reefs of China’s Nansha Islands by some coastal countries. Formed in the long historic course, China’s sovereignty and relevant rights in the South China Sea have solid historic and legal basis, and have been upheld by successive Chinese governments.
The basic guidelines for China’s neighboring diplomacy is to build good-neighborly relations with and bringing harmony, security and proseprity to neighboring countries, and concentrate on the concept of amity, sincerity, mutual benefit and inclusiveness. This conforms to the traditional Chinese culture, and is the strategic option of China. As a coastal country of the South China Sea, China has always been a staunch force for maintaining peace, stability and promoting cooperation and development. China is the last country that hopes to see any turbulence in its neighborhood, including in the South China Sea, which does not meet the common aspiration and interests of all parties including ASEAN countries.
Proceeding from the overall interests of safeguarding regional peace, stability and prosperity, and on the basis of respecting historic facts and international laws, the Chinese side has always adhered to resolving relevant disputes with sovereign states directly concerned, including the Philippines, through consultations and negotiations. This has been the consistent position of the Chinese side, and conforms to the consensus that China and ASEAN countries reached in the DOC.
In September 2013, China and ASEAN countries held the Sixth Senior Officials’ Meeting and Ninth Joint Working Group Meeting on the Implementation of the DOC in China. All parties exchanged views on the full and effective implementation of the DOC and enhancement of maritime cooperation. Consultations on the COC were also held under the framework of implementing the DOC. The Tenth Joint Working Group Meeting on the implementation of the DOC recently held in Singapore by China and ASEAN countries scored progress in the COC consultation process. This is in sharp contrast with the consistent provocations on the South China Sea issue by the Philippine side, and fully reflects the utmost good-will and sincerity of the Chinese side’s continuous commitment to peace and stability in the South China Sea.
5. The Nature of China-Philippines Disputes in the South China Sea
China has ample historic and legal basis for its sovereignty over the Nansha Islands and their adjacent waters. China was the first to discover, name, develop and operate on the Nansha Islands. It is also the first country that exercised and has been exercising sovereign jurisdiction over the islands, which has been long recognized by the international community including the Philippines. China resolutely safeguards national territorial sovereignty, sovereign rights and interests, and remains committed to maintaining regional peace and stability.
The Philippines’ territory was determined by a series of international treaties, including the Treaty of Peace between the United States and Spain in 1898, the Treaty between the United States and Spain for Cession of Outlying Islands of the Philippines in 1900 and the Convention between the United States and Great Britain Delimiting the Boundary between the Philippine Archipelago and the State of North Borneo. All these documents state that the border line of the western part of the territory of the Philippines is 118° East in longitude. China’s Nansha Islands and the Huangyan Island of the Zhongsha Islands do not lie within the boundary of territory delimited by any of the above treaties or conventions. Moreover, the 1935 Constitution of the Republic of the Philippines, the Treaty of General Relations between the Republic of the Philippines and the United States of America in 1946, the Mutual Defence Treaty between the the Republic of the Philippines and the United States of America in 1951, the Republic Act No. 3046, an act to define the Baselines of the Territorial Sea of the Philippines in 1961, the Republic Act No. 5446, an act to amend Section One of Republic Act No. 3046 in 1968 reiterated the legal effect of the above three treaties or conventions and reaffirmed the scope of the Philippine territory.
In a long period of time after the WWII, there were no such South China Sea disputes between China and the Philippines, and the Philippine side never raised objection to the Chinese government’s exercise of sovereignty over the Nansha Islands and their adjacent waters. Before the 1970s, there were neither legal documents nor speeches by national leaders of the Philippine side which mentioned that the Nansha Islands lied within the scope of the Philippine territory.
At the beginning of the 1970s, the Philippine side started to make territorial claims on certain islands and reefs of China’s Nansha Islands. In violation of the Charter of the United Nations and the basic norms governing international relations, the Philippine side conducted military operations four times respectively in 1970, 1971, 1978 and 1980, and illegally occupied 8 Chinese islands and reefs, namely: Mahuan Dao/Nanshan Island, Feixin Dao/Flat Island, Zhongye Dao/Thitu Island, Beizi Dao/Northeast Cay, Nanyao Dao/Loaita Island, Xiyue Dao/West York Island, Shuanghuang Shazhou/Loaita Nan and Siling Jiao/Commodore Reef. The territorial disputes between China and the Philippines over certain islands and reefs of Nansha Islands thus came into being. This is the most fundamental and direct cause of relevant disputes in the South China Sea between the two countries. The Chinese side has always been firmly against the illegally infringement and occupation by the Philippine side, and has solemnly demanded the Philippine side over and again to withdraw all its personnel and facilities from China’s islands and reefs.
On 11 June 1978, then Philippine President Ferdinand Marcos issued Presidential Decree No. 1596, which announced major parts of Nansha Islands as Kalayaan Islands Group of the Philippines in an attempt to provide legal basis for its illegal claims and put approximately 65,000 square kilometers of waters adjacent to Nansha Islands under the Philippines’ claims. In April 2012, the Philippine warship harassed the Chinese fishing boats and fishermen conducting regular operation by force, and inflicted severe inhuman treatment on the Chinese fishermen. The Chinese side has made resolute reaction against that.
The Philippine side willfully initiated the arbitration under UNCLOS, regardless of China’s legal rights as a party to the UNCLOS, and ignoring the fact that the essence of the disputes between China and the Philippines is the territorial disputes caused by Philippines’ illegal occupation of the islands and reefs of China’s Nansha Islands. The Philippines’ arbitration proceeding completely confuses right and wrong, distorts the fact and diverts attentions. The aim of its move is to cover up the illegal nature of Philippines’ infringement and provocative behaviour by the “Abuse of Process” against China, and to defraud the international community of its sympathy and support. Recently, by submitting the memorial to the arbitial tribunal, the Philippine side has launched a “Media Campaign” to smear the Chinese side by playing up the South China Sea issue and the arbitration proceeding. All these willful acts exposed the real motive of the Philippines’ pushing for the arbitration proceeding.
The real purpose of the Philippine side’s attack on the South China Sea dashed lines is to attempt to deny China’s sovereignty over Nansha Islands and their adjacent waters, and cover up the illegality of the Philippines’ occupation of some islands and reefs of China’s Nansha Islands, which the Chinese side will never accept. No matter how the Philippine memorial is packaged, the direct cause of the disputes between China and the Philippines is the latter’s illegal occupation of some of China’s islands and reefs in the South China Sea. At the heart of the matter are the disputes between the two sides on the sovereignty over islands and reefs. The most effective approach is to resolve the disputes through friendly consultations and negotiations.
China has never thought of taking the Philippine territory. It is actually the Philippines that occupies China’s islands and reefs. Some people believe that these islands and reefs are closer to the Philippines, and therefore they belong to the Philippines. This has no basis in international law. Geographical proximity has never been a criterion that determines the ownership of territory. Many countries in the world possess territories far away from their mainland or closer to other countries. All countries, big or small, should abide by the rules and stick to the truth.
As for what has happened in the South China Sea in recent years, all were provoked by the Philippines. Take the 2012 incident at Huangyan Island as an example, the Philippines harassed unarmed Chinese fishermen with a Navy ship around China’s Huangyan Island, and forced them to take off clothes and stand exposed under the scorching sun. Do you think it is China that bullies the Philippines? Another example is the Ren’ai Reef. A Philippine navy ship was “grounded” off the reef in 1999, over which the Chinese side has never stopped making representations. Initially, the Philippines stated that the ship was “grounded” due to “technical malfunction”, and promised to tow it away. However, 15 years have passed, instead of carrying out its promise, the Philippines is now trying to transport rebar and cement in order to build facilities on the reef. The Chinese side certainly can not just sit idly by.
6. The Consensus between China and the Philippines on the South China Sea Issue
As early as in the 1980s, the Chinese side proposed “shelving disputes and seeking joint development” to the Philippine side, which reflects China’s sincerity and good faith and its adherence to international laws and practices. It has gained wide approval of the international community. However, the Philippine side did not take it seriously, nor make any positive responses.
There was clear consensus of solving disputes through bilateral negotiations between the Chinese and the Philippine sides. It is stated in the Joint Statement-PRC-RP Consultations on the South China Sea and on Other Areas of Cooperation in August 1995 that a gradual and progressive process of cooperation shall be adopted in a view to eventually negotiating a settlement of the bilateral disputes, and disputes shall be settled by the countries directly concerned. The Joint Statement between China and the Philippines on the Framework of Bilateral Cooperation in the Twenty-First Century in May 2000 states that 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 laws, including the 1982 United Nations Convention on the Law of the Sea. The leaders of the two countries reiterated to address the disputes through peaceful dialogue in the Joint Statement in September 2011.
In 2002, China and the ASEAN countries including the Philippines signed the Declaration on the Conduct of Parties in the South China Sea (DOC), and the Section 4 stipulates that the parties concerned undertake to resolve their territorial and jurisdictional disputes by peaceful means, without resorting to the threat or use of force, through friendly consultations and negotiations by sovereign states directly concerned, in accordance with universally recognized principles of international law, including the 1982 United States Convention on the Law of the Sea.
With the active facilitation by the Chinese side, China and the Philippines exchanged views on relevant disputes, and made some progress. In September 2004, with the approval of both governments and witnessed by the two heads of states, China National Offshore Oil Corporation and Philippine National Oil Company signed the Agreement for Joint Marine Seismic Undertaking in Certain Areas in the South China Sea, which was expanded into China-Philippines-Vietnam trilateral agreement in March 2005. In order to further institutionalize relevant negotiations and consultations between China and the Philippines, the Chinese side officially proposed to the Philippine side to set up a Regular Consultation Mechanism on Maritime Issues. However, the Chinese side has not received any reply from the Philippine side until today. After the Philippine side provoked the Huangyan Island incident, the Chinese side took measures safeguarding sovereignty. The Chinese side then suggested again to restart China-Philippines Consultation Mechanism for Confidence-Building Measures. So far, there has been no reply from the Philippine side. At a time when bilateral peaceful means to settle the disputes are yet to be further explored, the Philippine side shut the door for bilateral negotiations on the excuse that they have exhausted other peaceful means and the arbitration is the only option.
7. The Issue of Huangyan Island (Scarborough Shoal)
The Huangyan Island is China’s inherent territory. The Philippines once clearly stated that the island is not within its territory. First, a series of international treaties defining the domain of the Philippine territory provide that the Huangyan Island is outside the territory of the Philippines. The then Philippine ambassador to Germany explicitly stated in 1990 in his letter to German radio amateurs that the Huangyan Island is not within the territory of the Philippines. The documents issued in 1994 by the Philippine National Mapping and Resources Authority as well as the Philippine Amateur Radio Association all confirmed that the Huangyan Island is outside the Philippine territorial boundary. The Philippine official map issued in 2011 also marked the Huangyan Island outside the Philippine territorial border limits.
It is absolutely justified for the Chinese side to enforce the law in its own territory and waters. The Chinese side never bullies other countries, but we stick to the principle of “not to attack unless attacked”. If certain countries are tolerated to create new territorial disputes in the 21st century, would there be any rules in the world? We urge the Philippine side to stop any provocative action at the waters off Huangyan Island, so as to avoid undermining peace and tranquility of the waters.
8. The Issue of Ren’ai Reef (Second Thomas Shoal)
In 1999, a Philippine Navy vessel illegally “grounded” off the Ren’ai reef of China’s Nansha Islands under the pretext of “stranding”. The Chinese side has been repeatedly making representations to the Philippine side, urging the latter to tow away the ship. The Philippine side claimed that they did not tow away the ship due to “lack of spare parts”. The Philippine side stated that it had no plan to build facilities on the reef, and it was not prone to provocation. Since 2003, the Chinese side has repeatedly made representations to the Philippine side, and the Philippine side claimed that as a signatory to the DOC, it would not and was not willing to become the first one to violate the DOC, and that the Philippine side had not built any construction on the reef, and posed no threats to any parties.
However, the Philippine side has not yet towed away the vessel. To make matters worse, the Philippine side has kept taking actions in an attempt to build facilities on the reef. Recently, the Chinese government vessels on routine patrol in waters off the Nansha Islands found again that the Philippine side, under the cover of reprovision to the “grounded” vessel, sent ships to transport rebar and cement in order to reinforce the facilities on the reef. There is no way for the Chinese side to accept this.
The statement released by the Department of Foreign Affairs of the Philippines on March 14 openly stated that the vessel “grounded” 15 years ago was actually meant to occupy the reef, which proves that the Philippine side has been lying for 15 years. The sitting Philippine government was not the one 15 years ago, but as a country, the Philippines is obliged to honor its commitment. A public denial of its own promise will make it lose credibility to the international community. Recently, the Philippine side has been playing up the issue of Ren’ai Reef, playing cards of sympathy everywhere, and including the issue into the so-called international arbitration, with an aim to gather sympathy and trust of the international community and legalize its occupation of the Ren’ai Reef. The Chinese side is steadfast in defending its territorial sovereignty and maritime interests and rights. The Philippines’ plot is doomed to failure.
9. Freedom and Safety of Navigation
For a long time, there has been no such a problem of freedom and safety of navigation in the South China Sea. Freedom and safety of navigation in the South China Sea has not been affected by disputes of Nansha Islands, nor will there be any problem in the future. The South China Sea is the main sealane for China’s trade and transportation of imported energy. To ensure freedom and safety of navigation in the South China Sea is equally important for China. The Chinese government has always maintained that the freedom of navigation of all countries in the South China Sea should be safeguarded, and has actively participated in the maritime safety cooperation in this region. The actions taken by China in safeguarding its sovereignty and maritime interests in the South China Sea do not affect other countries’ freedom of navigation and overflight which are conducted in accordance with the international law. It is with ulterior motive to play up the concept of “freedom of navigation in the South China Sea”. It is neither in favour of peace and stability of the region, nor conducive to efforts of defending freedom and safety of navigation.
China has the right to establish Air Defence Identification Zone (ADIZ), which is not related to and should not be linked to disputes on territorial sovereignty, maritime rights and interests, and bilateral relations. Whether to establish ADIZ or not depends on the threats to air safety and the degree of such threats. All aspects should be comprehensively taken into consideration, so this is a complicated and systematic project. The present situation in the South China Sea is generally stable. China and ASEAN countries are committed to implementing the DOC in a comprehensive and effective manner, and safeguarding peace and stability in the South China Sea. Relevant differences and disputes should be properly resolved through negotiations and consultations by countries directly concerned.
10. China is Committed to a South China Sea of Peace, Friendship and Cooperation
For a long time, the Chinese side has stayed committed to implementing the DOC together with parties concerned to safeguard peace and stability of the South China Sea, to resolve relevant disputes through negotiations and consultations with parties directly concerned, and has been upholding the proposition of “shelving disputes and seeking joint development”. China has proposed a series of measures that aim to promote maritime cooperation. In November 2011, the Chinese side set up the China-ASEAN maritime cooperation fund with RMB 3 billion, in view of promoting maritime cooperation between China and ASEAN countries in the fields of environmental protection on the sea, maritime science and techono1gy, maritime connectivity, safety of navigation and rescue, as well as combating transnational crimes, and etc. In May 2013, China and relevant ASEAN countries announced the initative of the establishment of China-ASEAN maritime emergency rescue hot-line. China and relevant ASEAN countries are in close communication on the approach to properly handle the South China Sea issue. Positive progress has been achieved in maritime issue consultations and mutually beneficial cooperation. So long as all parties earnestly implement relevant consensus, adhere to consultations and negotiations, promote practical maritime cooperation and joint development, the South China Sea will become a sea of peace, friendship and cooperation.
(Zhang Hua is the Spokesperson of the Embassy of the People’s Republic of China in the Republic of the Philippines)