China's Omnidirectional Peripheral Diplomacy by Jianwei Wang & Tiang Boon Hoo

Author:Jianwei Wang & Tiang Boon Hoo [Wang, Jianwei & Hoo, Tiang Boon]
Language: eng
Format: epub
Tags: Political Science, International Relations, General, Security (National & International), World, Asian
ISBN: 9789813141780
Google: xyXbjwEACAAJ
Goodreads: 30554943
Publisher: World Scientific Publishing Company Pte Limited
Published: 2018-01-15T07:07:13+00:00

The Philippines’ Arbitration Initiative and China’s Response

The arbitration instituted by the Philippines against China was submitted to the Permanent Court of Arbitration at Hague on January 22, 2013. On the same day, the Department of Foreign Affairs of the Philippines presented a note verbale to the Embassy of China in the Philippines, stating that the Philippines has submitted a Notification and Statement of Claim in order to initiate compulsory arbitration proceedings under Article 287 and Annex VII of the United Nations Convention on the Law of the Sea (“Convention”) with respect to the dispute with China over “maritime jurisdiction” in the South China Sea. On February 19, 2013, the Chinese Government rejected and returned the Philippines’ note verbale together with the attached Notification and Statement of Claim. In response, the Chinese government stated that China “will neither accept nor participate in the arbitration unilaterally initiated by the Philippines.”

Although China neither accepted nor participated in the arbitration, China’s response through a government document “Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines” published on December 7, 2014, clearly stated China’s position, that is, the Tribunal lacks jurisdiction to consider the Philippines’ submissions. China’s response can be summarized in the following points:

First, the essence of the subject-matter of the arbitration is the territorial sovereignty over several maritime features in the South China Sea, which is beyond the scope of the Convention and does not concern the interpretation or application of the Convention;

Second, China and the Philippines have agreed, through bilateral instruments and the Declaration on the Conduct of Parties in the South China Sea, to settle their relevant disputes through negotiations. By unilaterally initiating the present arbitration, the Philippines has breached its obligation under international law;

Third, even assuming, arguendo, that the subject-matter of the arbitration were concerned with the interpretation or application of the Convention, that subject-matter would constitute an integral part of maritime delimitation between the two countries, thus falling within the scope of the declaration filed by China in 2006 in accordance with the Convention, which excludes, inter alia, disputes concerning maritime delimitation from compulsory arbitration and other compulsory dispute settlement procedures;

Fourth, the Arbitral Tribunal manifestly has no jurisdiction over the present arbitration. Based on the foregoing positions and by virtue of the freedom of every State to choose the means of dispute settlement, China’s rejection of and non-participation in the present arbitration stands on solid ground in international law.11

Additional Chinese policy response can be analyzed as follows:

First, China repeatedly states non-acceptance, non-participation in the arbitration. To prevent China’s Position Paper from constituting as a plea, China stressed that “this Position Paper shall not be regarded as China’s acceptance of or participation in this arbitration”. However, the Arbitral Tribunal “decided in April 2015 that it would treat China’s Position Paper as effectively constituting a plea concerning the Tribunal’s jurisdiction”. The Arbitral Tribunal’s decision defies Chinese government’s statement and cannot be effective and naturally accepted by China.

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