Philippines' partition a provocation under a legal cloak

Li Feng/China Daily

The unilateral arbitration case forcibly pushed forward by the Philippines is a provocation against China under a legal cloak. Essentially, it is not aimed at resolving the country's territorial disputes with China, but a naked attempt to repudiate China's territorial sovereignty and maritime rights and interests in the South China Sea.

By partitioning China's Nansha Islands in their entirety into different ones in its arbitration case submitted to the Permanent Court of Arbitration in The Hague, and asking the court to make a ruling on the maritime rights of the islands and reefs "occupied or controlled" by China, Manila is deliberately falsifying the nature of its disputes with Beijing on territorial sovereignty and maritime demarcation in the South China Sea.

This partition trick is a serious infringement of China's sovereignty and territorial integrity. China enjoys sovereignty over the Nansha Islands as a whole and such a legal fact has gained international recognition and acquiescence. In its arbitration case, the Philippines intentionally shies away from mentioning some islands and reefs, including those illegally occupied or claimed by itself, in an attempt to deny China's territorial sovereignty and maritime rights and interests in the South China Sea and whitewash its illegal occupation of some of China's Nansha Islands.

The exclusion of Taiping Island, the largest of the Nansha Islands where Taiwan stations its troops, from the islands and reefs "occupied or controlled" by China, also constitutes a serious violation by Manila of the one-China principle. All these testify that the Philippines' arbitration appeal is an unconcealed challenge to China's territorial sovereignty over the Nansha Islands.

According to the United Nations Convention on the Law of the Sea, the basic fact of the integrity of China's Nansha Islands should be taken into full consideration in defining China's maritime rights. In a note to then secretary-general of the UN on April 14, 2011, China's permanent mission to the UN pointed out that the stipulations of the Convention and China's maritime law endow China's Nansha Islands with the right of territorial waters, exclusive economic zone and continental shelf. However, in its arbitration case, the Philippines is attempting to fragment the Nansha Islands, proposing that the legal status of the listed islands should be determined one by one. Manila has also argued that these islands belong to atoll or low-tide heights that it says only enjoy a right of 12-nautical-mile waters under the UN Convention. Such arguments are a wanton challenge to China's maritime rights based on the nature of Nansha Islands as an entirety.

The intrigue to partition China's Nansha Islands also highlights the Philippines' attempt to evade territorial sovereignty and maritime demarcation disputes in its arbitration case. The settlement of territorial sovereignty disputes is beyond the scope of the UN Convention and thus inapplicable to international arbitration or other compulsory procedures. In 2006, China also excluded the settlement of maritime demarcation disputes by compulsory arbitration based on the Convention. In this sense, the court in The Hague has no power of jurisdiction over the Philippines' arbitration case and Manila's enforced arbitration requirement is essentially an abuse of the Convention's compulsory settlement procedures.

Aside from its lack of jurisdiction, the arbitration court's indiscriminate endorsement of the Philippines' partitioning of China's Nansha Islands is a serious departure from the fair and a prudent attitude a court should hold. According to Article 9 of Annex VII of UNCLOS, in the absence of one of the two conflicting parties, the arbitration court should verify whether it enjoys jurisdiction over the case and whether all the requirements are factual and have a legal basis before making a ruling. The court should dismiss the Philippines' unreasonable arbitration appeal and fully respect the fact that China's Nansha Islands have an integral geographic existence if it strictly bases its work on facts and laws. The non-identified endorsement of the Philippines' fragmenting of China's Nansha Islands demonstrates the court has already been reduced to being Manila's agent and lacks objectivity and fairness.

The illegal and invalid arbitration farce staged by the Philippines and the court does not alter the fact China's Nansha Islands are an entirety nor China's legal rights and interests.

The author is a Beijing-based observer of international issues.