Convention not applicable

At present, in order to maintain stability in the region and create conditions for peaceful resolution of the disputes in the South China Sea, China and the ASEAN member States have established working mechanisms to effectively implement the DOC, and have been engaged in consultations regarding the "Code of Conduct in the South China Sea". By initiating compulsory arbitration at this moment, the Philippines is running counter to the common wish and joint efforts of China and the ASEAN member States. Its underlying goal is not, as the Philippines has proclaimed, to seek peaceful settlement of the South China Sea issue, but rather, by resorting to arbitration, to put political pressure on China, so as to deny China's lawful rights in the South China Sea through the so-called "interpretation or application" of the Convention, and to pursue a resolution of the South China Sea issue on its own terms. This is certainly unacceptable to China.

IV.

Even assuming, arguendo, that the subject-matter of the arbitration were concerned with the interpretation or application of the Convention, the subject-matter would still be an integral part of maritime delimitation and, having been excluded by the 2006 Declaration filed by China from the compulsory dispute settlement procedures, could not be submitted for arbitration.

On 25 August 2006, China deposited, pursuant to Article 298 of the Convention, with Secretary-General of the United Nations a declaration stating that the Government of the People's Republic of China does not accept any of the compulsory settlement procedures provided for in the Convention with respect to disputes concerning maritime delimitation, among others.

Maritime delimitation is an integral, systematic process. The international law applicable to maritime delimitation includes both the Convention and general international law. Maritime delimitation involves a consideration of not only entitlements, effect of maritime features, and principles and methods of delimitation, but also all relevant factors that must be taken into account, in order to attain an equitable solution.

The subject-matter of the arbitration initiated by the Philippines constitutes an integral part of maritime delimitation between China and the Philippines, and, as such, can only be considered under the overarching framework of maritime delimitation between China and the Philippines, and in conjunction with all the relevant rights and interests the parties concerned enjoy in accordance with the convention, general international law, and historical or long-standing practice in the region for overall consideration.

Ostensibly, the Philippines is not seeking from the Arbitral Tribunal a ruling regarding maritime delimitation, but instead a decision, inter alia, that certain maritime features are part of the Philippines' EEZ and continental shelf, and that China has unlawfully interfered with the enjoyment and exercise by the Philippines of sovereign rights in its EEZ and continental shelf. The Philippines' claims have in effect covered the main aspects and steps in maritime delimitation. Should the Arbitral Tribunal address substantively the Philippines' claims, it would amount to a de facto maritime delimitation.

The exclusionary declarations filed by the States Parties to the Convention under Article 298 of the Convention must be respected. By initiating the present compulsory arbitration as an attempt to circumvent China's 2006 declaration, the Philippines is abusing the dispute settlement procedures under the Convention.