By Initiating South China Sea Arbitration, the Philippines Breaks Its Word
Ye Qiang, Assistant Research Fellow at National Institute for South China Sea Studies
China and the Philippines had chosen to solve the disputes in the South China Sea through negotiations. By unilaterally initiating the so-called "international arbitration", the Philippines ignored the common understanding that China and the Philippines had reached on solving the disputes through negotiations, and its solemn commitments under the Declaration on the Conduct of Parties in the South China Sea ("Declaration" below), showed disregard for the rights that China, as a sovereign state and a State Party to the United Nations Convention on the Law of the Sea ("Convention" below), enjoys as to what dispute settlement mechanism and procedure to choose voluntarily, and abused the compulsory dispute settlement procedure under the Convention. This is a typical act of breaking faith.
The Chinese government has always insisted on solving disputes over overlapping claims to territories and maritime rights and interest through negotiations conducted based on historical facts and in accordance with international law. Through negotiations, China has since the 1960s solved border issues with 12 of its 14 neighboring countries, delimiting some 20,000 kilometers in length of land boundaries - 90% of about 22,000 kilometers of China' s land boundaries. In addition, China and Vietnam demarcated the maritime border between the two countries at the Beibu Bay (Gulf of Tonkin) through negotiations. It is fair to say that these are the best examples of China pursuing a foreign policy of independence and good ties with neighboring countries and fulfilling international law, and also widely acclaimed achievements which China has made in solving international disputes through negotiations.
Conversely, international adjudication or arbitration is by no means the best way of solving international disputes. Prof. Eric Posner of the University of Chicago Law School once conducted statistics on whether judgments by the International Court of Justice (ICJ) could eventually solve relevant disputes. While 83% of all contentious cases decided by the ICJ from 1946 to 1965 were executed and 80% of cases of the compulsory jurisdiction category were executed, in 20 years from 1966 to 1985, the rate of executed contentious cases dropped rapidly to 20% and all cases of the compulsory jurisdiction category were not executed. From 1986 to 2004, only 29% of the contentious cases were executed, which, except for the cases submitted to the ICJ through special agreements, had only a 17% rate of execution. From 1946 to 2004, the average rate of execution for cases was only 44%, and that for cases of the compulsory jurisdiction was only 33%.
Article 280 of the Convention states that "Nothing in this Part impairs the right of any States Parties to agree at any time to settle a dispute between them concerning the interpretation or application of this Convention by any peaceful means of their own choice". In Article 281, the Convention provides that "If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed to seek settlement of the dispute by a peaceful means of their own choice, the procedures provided for in this Part apply only where no settlement has been reached by recourse to such means and the agreement between the parties does not exclude any further procedure".
The Joint Statement between the People' s Republic of China and the Republic of the Philippines concerning Consultations on the South China Sea and on Other Areas of Cooperation issued on August 10, 1995, the Joint Statement of the China-Philippines Experts Group Meeting on Confidence-Building Measures on March 23, 1999, the Joint Statement between the Government of the People' s Republic of China and the Government of the Republic of the Philippines on the Framework of Bilateral Cooperation in the Twenty-First Century on May 16, 2000, the Joint Press Statement of the Third China-Philippines Experts' Group Meeting on Confidence-Building Measures on April 4, 2001, the Joint Press Statement between the Government of the People' s Republic of China and the Government of the Republic of the Philippines on September 3, 2004, and the Joint Statement between the People' s Republic of China and the Republic of the Philippines on September 1, 2011, all state clearly that China and the Philippines will solve disputes over territories and maritime rights and interests by means of negotiations between the two sides. Settling disputes peacefully through negotiations is not only China's policy, but also an agreement that had been reached by and between China and the Philippines.
On November 4, 2002, the Chinese government and the governments of ASEAN countries, including the Philippines, signed the Declaration. Article 4 of the Declaration clearly states that "The Parties concerned undertake to resolve their territorial and jurisdictional disputes by peaceful means through friendly consultations and negotiations by sovereign states directly concerned".
Obviously, China and the Philippines had chosen, as agreed in the bilateral and multilateral agreements, to settle disputes through negotiations, without setting time limits for such negotiations. Given this, the disputes between the two countries in the South China Sea could have only been settled through negotiations, rather than having recourse to arbitration or other compulsory dispute settlement procedure. The Philippines broke its word and breached the basic international law principle of Pacta sunt servanda, so that its act of initiating the arbitration procedure is illegal and invalid.