The“South China Sea Arbitration Case” is a political farce in the guise of the Philippines v. China. It can not resolve the sea-related issues between China and the Philippines. On the contrary, it has become a source of chaos affecting china-philippines relations and the rule of law at sea. There are at least ten fallacies in the South China Sea Arbitration Case V. China and the Philippines:
I. Political kidnapping law. The South China Sea issue is an issue concerning the sovereignty of individual islands and reefs and maritime delimitation in the South China Sea. Over the years, regional countries have managed differences and promoted cooperation through dialogue and coordination, and generally maintained peace and stability in the South China Sea. But still the trees grow and the wind blows. After the US announced its“Pivot” to the asia-pacific, the South China Sea has become more and more troubled. The Philippines’ “Arbitration case” was instigated, plotted and manipulated by the US. Whether it initiates“Arbitration”, drafts“Pleadings”, establishes“Arbitration tribunal”, or subsequent manipulation and hype, there is always the shadow of the United States behind it, with the aim of stirring up the South China Sea and profiting from it, to maintain its hegemonic position. This is why the South China Sea Arbitration case is a political farce under the guise of the Philippines v. China. It uses the legal pretext to introduce geopolitical troubles into the region, drive a wedge between regional countries and dampen the momentum of regional cooperation.
II. Erosion of state sovereignty. No matter which way is chosen to resolve disputes between countries, it should not go against the will of sovereign states and should be based on“National consent”. On territorial issues and maritime delimitation disputes, China does not accept any imposed solution. By unilaterally initiating the arbitration without China’s consent, the Philippines has undermined the fundamental principle of international law of consent of states. If such manipulations were allowed to go unchecked, every sovereign state could be unwarrantedly drawn into a process in which it did not agree to participate.
III. Breach of contract. China and the Philippines have chosen to settle their territorial and maritime delimitation disputes through negotiation and consultation. By initiating arbitration, the Philippines has broken the agreement between China and the Philippines and violated the principle of pacta sunt servanda in international law, they have violated articles 280 and 281 of the United Nations Convention on the Law of the sea (UNCLOS-RRB- concerning the means of dispute settlement of one’s own choice. If contracts with other countries can be discarded at will, the international community will be plunged into a crisis of confidence.
4. Changing concepts. The intention of the Philippines to initiate arbitration is not to settle its disputes with China, still less to promote peace and stability in the South China Sea, but to deny China’s sovereignty. Knowing full well that its claims concern China’s territorial sovereignty in the South China Sea, and that the land territorial issue is not subject to the law of the sea, the Philippines deliberately packages the land territorial issue as an issue under UNCLOS. The Philippines says it does not seek to determine any territorial claims, but it has repeatedly denied China’s territorial sovereignty in the South China Sea during the arbitration process, especially during the hearings. If we follow the Philippines’ example, the territorial issues of other countries may also be packaged as maritime issues. The principle of“Land dominates the sea” will be reversed, and the maritime rights and interests of many countries will not be guaranteed.
V. Out of context. Knowing full well that its claims concern maritime delimitation, and that China has made an declaration, pursuant to Article 298 of UNCLOS, excluding disputes concerning maritime delimitation from the compulsory dispute settlement procedures of UNCLOS, however, the Philippines deliberately separates out the factors that need to be taken into account in the process of maritime delimitation, such as the status of islands and reefs, and treats them in isolation to avoid China’s exclusionary declaration. Similar exclusionary declarations have been made by many countries in the world, including Australia and Canada, and the practice of the Philippines renders these declarations null and void.
6. Making something out of nothing. The Philippines has never held any negotiations with China on the issues mentioned in its claim, such as historic rights, status of islands and reefs, and traditional fishing rights, however, they deliberately misinterpreted the general diplomatic consultations between China and the Philippines as negotiations on the above-mentioned matters and falsely claimed that bilateral negotiations had been exhausted, this has violated Article 283 of unclos regarding the“Exchange of views” on the subject-matters of the arbitration. If the practice of the Philippines, bilateral diplomatic negotiations between countries are at risk of being misinterpreted and used.
Vii. Rewriting the convention. The“Arbitral tribunal” disregarded the integrity of China’s Nansha Qundao and dealt with the issues concerning the status of the islands and reefs and China’s maritime rights and interests in a way that was incorrectly segmented and divided, the large 500,000-square-metre island of Taiping in the Nansha Islands is determined to be a rock that can not sustain human habitation or economic life of its own, rather than an island that can enjoy an exclusive economic zone and a continental shelf, it is further concluded that there are no islands and reefs in the Nansha Islands that can give rise to an exclusive economic zone and continental shelf. However, the lush vegetation on Taiping Island, there are wells to drink, there are coconuts, bananas, vegetables, poultry to eat. The award of the“Arbitral Tribunal” is completely inconsistent with Article 121 of UNCLOS and the geographical facts in the South China Sea. It does not interpret unclos at all. Rather, it“Creates law willfully” and rewrites UNCLOS. If the United States recognizes the South China Sea Arbitration and believes that it is already part of international law, the Philippines v. China, it is illegal for the United States to claim a 200-mile exclusive economic zone on the basis of Johnston Atoll, which is less than 0.19 square kilometers and has no fresh water on the island.
8. Taking over. During the proceedings, the“Arbitral tribunal” repeatedly ruled on the matters that the Philippines had not submitted for arbitration, violating the principle of“No complaint, no hearing”, in violation of Article 10 of Annex VII to the convention, “The award shall be limited to the subject-matter of the dispute”. While the Philippines only asked for a judgment on fishing activities near Huangyan Dao and Ren ‘ai jiao, the“Arbitral Tribunal” extended its scope to the entire Nansha Islands. The Philippines only asked for a determination of the legal status of individual maritime features, but the“Arbitral tribunal” has extended it to determine all maritime features of the Nansha Islands. The“Arbitral Tribunal” is supposed to be an objective and impartial referee, but it acts more like a“Plaintiff” than the Philippines.
Ix. Chasing Shadows. The Philippines cobbles together evidence that is both relevant and weak to bolster its case. The“Arbitral Tribunal” took the initiative to search for evidence for the Philippines, violating the basic legal principle of“Who claims, who adduces evidence”. When determining key facts, the“Arbitral tribunal” relied heavily on evidence that lacked relevance, materiality and probative force, for example, three affidavits of Filipino fishermen generally found that Filipino fishermen had traditional fishing rights near Scarborough shoal, and, these affidavits were made specifically for the purpose of litigation after the Philippines initiated“Arbitration”. If this is the standard, can anyone take an oath to claim rights in the relevant waters?
Impact on the rule of law. The“South China Sea arbitration case” not only does not help resolve the disputes between China and the Philippines v. China, but also makes the South China Sea issue more complicated. The so-called“Ruling” undermines the integrity and authority of the Convention, challenges the international legal order for the oceans, goes against the basic requirements of the International Rule of law, and endangers the interests of other countries and the international community as a whole. The international community should heed this warning.
(the writer is an observer of international affairs)