China's position paper on South China Sea

VI. Conclusions

86. It is the view of China that the Arbitral Tribunal manifestly has no jurisdiction over this arbitration, unilaterally initiated by the Philippines, with regard to disputes between China and the Philippines in the South China Sea.

Firstly, the essence of the subject-matter of the arbitration is the territorial sovereignty over the relevant maritime features in the South China Sea, which is beyond the scope of the Convention and is consequently not concerned with the interpretation or application of the Convention.

Secondly, there is an agreement between China and the Philippines to settle their disputes in the South China Sea by negotiations, as embodied in bilateral instruments and the DOC. Thus the unilateral initiation of the present arbitration by the Philippines has clearly violated international law.

Thirdly, even assuming that the subject-matter of the arbitration did concern the interpretation or application of the Convention, it has been excluded by the 2006 declaration filed by China under Article 298 of the Convention, due to its being an integral part of the dispute of maritime delimitation between the two States.

Fourthly, China has never accepted any compulsory procedures of the Convention with regard to the Philippines' claims for arbitration. The Arbitral Tribunal shall fully respect the right of the States Parties to the Convention to choose the means of dispute settlement of their own accord, and exercise its competence to decide on its jurisdiction within the confines of the Convention. The initiation of the present arbitration by the Philippines is an abuse of the compulsory dispute settlement procedures under the Convention. There is a solid basis in international law for China' s rejection of and non-participation in the present arbitration.

87. China consistently adheres to the policy of friendly relations with its neighbouring States, and strives for fair and equitable solution in respect of disputes of territorial sovereignty and maritime delimitation by way of negotiations on the basis of equality and the Five Principles of Peaceful Co-existence. China holds that negotiations is always the most direct, effective, and universally used means for peaceful settlement of international disputes.

88. After years of diplomatic efforts and negotiations, China has successfully resolved land boundary disputes with twelve out of its fourteen neighbours, delimiting and demarcating some 20,000 kilometres in length of land boundary in the process, which accounts for over 90% of the total length of China' s land boundary. On 25 December 2000, China and Vietnam concluded, following negotiations, the Agreement between the People' s Republic of China and the Socialist Republic of Viet Nam on the Delimitation of the Territorial Seas, the Exclusive Economic Zones and Continental Shelves in Beibu Bay, establishing a maritime boundary between the two States in Beibu Bay. On 11 November 1997, the Agreement on Fisheries between the People' s Republic of China and Japan was signed. On 3 August 2000, the Agreement on Fisheries between the Government of the People' s Republic of China and the Government of the Republic of Korea was signed. On 24 December 2005, the Agreement between the Government of the People' s Republic of China and the Government of the Democratic People' s Republic of Korea for Joint Development of Oil Resources at Sea was signed. All these are provisional arrangements pending the maritime delimitation between China and those States.

89. The facts show that, as long as States concerned negotiate in good faith and on the basis of equality and mutual benefit, territorial and maritime delimitation disputes can be resolved properly between them. This principle and position of China equally apply to its disputes with the Philippines in the South China Sea.

90. China does not consider submission by agreement of a dispute to arbitration as an unfriendly act. In respect of disputes of territorial sovereignty and maritime rights, unilateral resort to compulsory arbitration against another State, however, cannot be taken as a friendly act, when the initiating State is fully aware of the opposition of the other State to the action and the existing agreement between them on dispute settlement through negotiations. Furthermore, such action cannot be regarded as in conformity with the rule of law, as it runs counter to the basic rules and principles of international law. It will not in any way facilitate a proper settlement of the dispute between the two countries. Instead it will undermine mutual trust and further complicate the bilateral relations.

91. In recent years, the Philippines has repeatedly taken new provocative actions in respect of Huangyan Dao and Ren' ai Jiao. Such actions have gravely hindered mutual political trust between China and the Philippines, and undermined the amicable atmosphere for China and ASEAN member States to implement the DOC and consult on the proposed Code of Conduct in the South China Sea. In fact, in the region of Southeast Asia, it is not China that has become "increasingly assertive" ; it is the Philippines that has become increasingly provocative.

92. The issue of the South China Sea involves a number of States, and is compounded by complex historical background and sensitive political factors. Its final resolution demands patience and political wisdom from all parties concerned. China always maintains that the parties concerned shall seek proper ways and means of settlement through consultations and negotiations on the basis of respect for historical facts and international law. Pending final settlement, all parties concerned should engage in dialogue and cooperation to preserve peace and stability in the South China Sea, enhance mutual trust, clear up doubts, and create conditions for the eventual resolution of the issue.

93. The unilateral initiation of the present arbitration by the Philippines will not change the history and fact of China' s sovereignty over the South China Sea Islands and the adjacent waters; nor will it shake China' s resolve and determination to safeguard its sovereignty and maritime rights and interests; nor will it affect the policy and position of China to resolve the relevant disputes by direct negotiations and work together with other States in the region to maintain peace and stability in the South China Sea.