The Hague-based arbitration tribunal will soon announce the final results of its arbitration on the South China Sea issue. China has repeated on many occasions its non-acceptance of the unilaterally requested arbitration. That stance, which has surprised some members of the international community, is in fact quite reasonable.

Arbitration is beyond the jurisdiction of UNCLOS

The South China Sea issue boils down to territorial and maritime demarcation, which is beyond the scope of the United Nations Convention on the Law of the Sea (UNCLOS). Therefore, the dispute settlement procedure described in UNCLOS cannot be applied to this case. Mandatory arbitration is not legal and the International Court of Arbitration has no jurisdiction over the issue.

As contracting states of UNCLOS, China and the Philippines should abide by the convention.

China made statement of optional exception before the Philippines filed arbitration

According to UNCLOS, contracting states are entitled to reject arbitration over disputes related to maritime demarcations, historic bays, ownership, military activities and law enforcement. Countries are not permitted to apply for arbitration over these disputes, nor does the International Court of Arbitration have jurisdiction over them.

The goals of the Philippines for this arbitration include “defining the legal position of the islands and reefs, as well as maritime interests.” These goals unequivocally constitute maritime demarcation. Thus, as a contracting party of UNCLOS, China has the right to reject the arbitration. China made a statement of optional exception on issues related to maritime demarcation in 2006 under Article 298 of UNCLOS, so the Philippines is in no position to apply for arbitration over that issue. By doing so, they ignored the convention.

Philippines betrayed the consensus with China

Articles 280 and 281 of UNCLOS entitle contracting states to independently choose a path to settle disputes. According to the Declaration on the Conduct of Parties in the South China Sea signed by China and the Philippines in 2002, disputes over territory should be addressed through friendly negotiations in a peaceful manner by the countries directly concerned.

On the other hand, resolving disputes through international arbitration was ruled out by both countries.

Neutrality is not a priority for the arbitration tribunal

What’s more, four of the five arbitrators are European. They do not represent diverse global perspectives, nor do they offer the perspectives of different legal systems. Four were appointed by Shunji Yanai, a biased former president of the International Tribunal for the Law of the Sea.

Meanwhile, the tribunal not only rejected China's historical practice in the South China Sea, they also deliberately neglected China's legal interests. In fact, the tribunal is nothing more than a temporary team established at the request of the Philippines. So it’s clear that neutrality is not a priority.

The single-sided arbitration is a violation of international laws and an abuse of power, which will only escalate conflicts in the region. It makes perfect sense that China chooses not to accept the arbitration.

This article was edited and translated from “南海仲裁案”裁决在即，中国为何不“接茬”？ Source: People's Daily