The South China Sea: Facts will tell and justice will prevail

The South China Sea issue is a hot topic nowadays in the international media. Some Nigerian friends of mine are asking: What is the history and current situation of the South China Sea issue? Why does China neither accept nor participate in the arbitration of the South China Sea initiated unilaterally by the Philippines? In […]

The South China Sea issue is a hot topic nowadays in the international media. Some Nigerian friends of mine are asking: What is the history and current situation of the South China Sea issue? Why does China neither accept nor participate in the arbitration of the South China Sea initiated unilaterally by the Philippines? In order to clarify the truth and air the facts, I feel obligated and necessary to give some elaboration on the South China Sea issue to the public of Nigeria. China was the first country to discover, name, explore the islands in South China Sea and the first to continuously exercise sovereign jurisdiction over them.
Since China discovered and administrated the Nansha Islands, its sovereignty over the islands and reefs has been widely acknowledged and recognized. During World War II, Japan once encroached on and illegally seized the Nansha Islands. However, when Japan surrendered at the end of the war, as stipulated in the Cairo Declaration in 1943 and the Potsdam Proclamation in 1945, China recovered the Nansha Islands. After that, the Chinese government strengthened its jurisdiction and administration over the Nansha Islands by renaming the islands, publishing official map and military stationing. No single country made any objections, and China’s sovereignty and position was widely acknowledged and recognized in the world.
At the end of 1960s, some research institutions of UN declared rich oil and gas reserves were found in the South China Sea. Incented by the prospect of huge energy resources, some countries especially the Philippines drastically changed their policies regarding the South China Sea in the 1970s, and started to encroach illegally on some islands and reefs of China’s Nansha Islands.
The scope of the Philippine territory was clearly limited by the Treaty of Peace Between the United States of America and the Kingdom of Spain in 1898, the Treaty Between the Kingdom of Spain and the United States of America for Cession of Outlying Islands of the Philippines in 1900 and the Convention Between the United States of America and Great Britain Delimiting the Boundary Between the Philippine Archipelago and the State of North Borneo in 1930. These treaties stipulate that the west limit of the Philippine territory is 118th meridian east, while the Chinese islands and reefs in the South China Sea lie to the west of 118th meridian east. Obviously, the Philippine territory does not include China’s Nansha Islands and reefs as well as Huangyan Island.
However, since the 1970s, the Philippines pushed for territorial expansionism beyond its inherent territory limit by sending troops to occupy eight maritime features of China’s Nansha Islands and sought to permanently station there and “legalize” the occupation through various means, such as construction of military facilities, ports and airports, administrative establishment, unlawfully designation of the so-called “Kalayaan Island Group”. The Philippines also revised its baseline act and outrageously put China’s Nansha Islands and Huangyan Island into its territory scope in 2009. In April 2012, the Philippines sent a warship into the adjacent waters of China’s Huangyan Island, forcefully detained and harassed the Chinese fishermen and fishing boats conducting normal operation there, deliberately triggered the “Huangyan Island incident”.
After the incident, in January 2013, the Philippines made up its mind to unilaterally initiate an arbitral proceeding against China at the International Tribunal for the Law of the Sea, and attempted to comprehensively deny China’s territorial sovereignty over Nansha Islands with some articles of the UN Convention on the Law of the Sea (UNCLOS) and the arbitration, as well as to cover up the truth that it illegally encroached on China’s Nansha islands.
Firstly, for any arbitration to work, it requires the voluntary and proactive participation and agreement of both parties. According to UNCLOS, arbitration is an auxiliary and minor resort to maritime disputes, while the negotiation among the parties directly concerned is the preferential approach. The UNCLOS unequivocally states “When a dispute arises between State Parties concerning the interpretation or application of this Convention, the parties to the dispute shall proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means.”
Secondly, the Philippines has reneged on its commitment to resolve the disputes through bilateral negotiations as stipulated by the Declaration on the Conduct of Parties in the South China Sea (DOC) and the agreement between China and the Philippines in 1999 and 2011 respectively, and the parties concerned undertook to resolve their territorial and jurisdictional disputes by peaceful means, through friendly consultations and negotiations by sovereign states directly concerned. What the Philippines did has undoubtedly slapped this basic legal principle in the face.
Thirdly, it should also be noted the UNCLOS does have jurisdiction over maritime disputes, with the disputes over territorial sovereignty etc. being specifically excluded. Since the South China Sea disputes hinges on the question on territorial sovereignty and maritime demarcation at the same time, it’s beyond any doubt that the Tribunal, being neither a court of law nor a permanent arbitration body, has no jurisdiction over the South China Sea disputes at all.
Last but not the least, in 2006, China made a declaration, in accordance with Article 298 of the UNCLOS, that China would exclude any disputes on maritime delimitation, historic bays or titles, military and law enforcement activities from the compulsory arbitration, which again entitles China not to accept the arbitration. It must be pointed that the declaration China made is no different from what around 30 other signatory countries of UNCLOS did in this regard. Since China has already reserved the right not to accept the potential arbitration, the consideration behind the Philippines’ initiation and the Tribunal’s acceptance of the appeal, unavoidably raises suspicion about its real motive.
For some time, certain countries have been questioning China’s construction activities in the South China Sea and criticizing this will lead to “militarization” and “change the status-quo”. What needs to be pointed out is that China’s construction activities on the islands and reefs in the South China Sea are entirely within its sovereignty. It is lawful, justified, and reasonable. Such construction activities are aimed to strengthen the functions of some islands and reefs in providing multiple and integrated services. Besides meeting necessary defense needs, it is more geared to serve civilian purposes. Rather than affecting freedom of navigation, it will only contribute to joint responses to maritime challenges and to safety of navigation in the South China Sea.
Facts will tell and justice will prevail. The reason why China’s stance on the South China Sea issue is getting support and understanding from more and more countries is that it goes in line with the international law, truly maintains the international rule of law, and upholds the UNCLOS as well as the right of a sovereign state to choose its own way of disputes settlement, while performing its obligations as a responsible country. In our efforts to advance the 21st Century Maritime Silk Road, China has enjoyed tremendous support from many neighboring countries and countries beyond the region. China is willing to joint efforts with all parties to make the South China Sea truly a sea of peace, cooperation, and prosperity.
Jian is Charge D’Affaires of the Chinese Embassy in Nigeria.