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CHENG Jingye: Arbitration on South China Sea Dispute Fatally Flawed
2016/07/14

On July 14, 2016, The Australian published a signed article titled 'Arbitration on South China Sea Dispute Fatally Flawed' by Chinese Ambassador to Australia CHENG Jingye. The full text is as follows:

Arbitration on South China Sea Dispute Fatally Flawed

The arbitration award finally came out on 12 July on the South China Sea. As stated publicly, China neither accepts nor recognizes it. This position of China is fully justified.

To start with, the arbitration unilaterally initiated by The Philippines' Aquino government runs counter to the clear consensus between China and The Philippines.

As early as August 1995, the two countries agreed in a joint statement to settle their disputes in the South China Sea in a peaceful and friendly manner through consultation.

China and The Philippines subsequently reaffirmed this agreement through a number of bilateral instruments such as the March 23, 1999, joint statement of the China-Philippines Experts' Group meeting on confidence-building measures, the May 16, 2000, joint statement on the framework of bilateral co-operation in the 21st century, the September 3, 2004, joint press statement and the September 1, 2011, joint statement.

What's more, China and the 10 ASEAN member states--The Philippines included--signed in 2002 the Declaration on the Conduct of Parties in the South China Sea (DOC). Article 4 of this declaration clearly stipulates that territorial and jurisdictional disputes should be resolved through friendly consultations and negotiations by sovereign states directly concerned. The above bilateral instruments between China and The Philippines and relevant provisions in the DOC are mutually reinforcing and constitute a binding agreement by which China and The Philippines have chosen to settle the relevant disputes through negotiation.

By initiating arbitration, The Philippines goes back on the above consensus and contravenes its own serious commitment in the DOC. This is a violation of the principle of"Pacta Sunt Servanda"(agreements must be kept) in international law and an abuse of the UN Convention on the Law of the Sea (UNCLOS) dispute settlement procedures.

Second, the Arbitral Tribunal has no jurisdiction over the case. The essence of the subject matter of the arbitration is territorial issue and the issue of delimitation of some maritime areas in the South China Sea. Territorial issues are not subject to the UNCLOS.

With regard to maritime delimitation issues, China made, pursuant to article 298 of UNCLOS, a declaration in 2006 excluding them from arbitration and other compulsory dispute settlement procedures.

Similar declarations have been made by some 30 countries, including Australia and all the permanent members of the UN Security Council with the exception only of the United States, which is yet to accede to UNCLOS.

It is abundantly clear that China and The Philippines have agreed to settle disputes through negotiation and consultation and that China has made a declaration pursuant to article 298 of UNCLOS excluding compulsory arbitration. Yet in disregard of these facts, the Arbitral Tribunal has chosen to admit and hear The Philippines' case.

Since the tribunal has all too obviously gone beyond its mandate, its decision is fatally flawed. The arbitration initiated by The Philippines is completely politically motivated. Its main purpose is to deny China's sovereignty and ensuing rights and interests in the South China Sea. The decision of the tribunal, being null and void, has no binding force.

China rejects the award to safeguard not only its own lawful rights and interests under international law, but also the integrity and authority of UNCLOS. China's response is absolutely reasonable and legitimate.

More and more international legal experts have expressed their concerns and doubts about the case, and over 60 countries have registered in public their understanding and support for the Chinese position.

China has solid historical and legal basis for its territorial sovereignty and maritime rights and interests in the South China Sea. The award will not in any way affect China's sovereignty over the islands and reefs and its maritime rights and interests in the South China Sea, nor will it shake China's resolve to defend its territorial sovereignty and maritime rights and interests.

While China will not accept any claim or action based on the award, it remains committed to resolving the relevant disputes through negotiation and consultation with the countries directly concerned, on the basis of respecting historical facts and in accordance with international law, with a view to maintaining peace and stability in the South China Sea.

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