South China Sea arbitral award should be buried at dustbin of history
Published: Jul 12, 2021 09:13 PM
A vessel attached to a destroyer flotilla with the navy under the PLA Eastern Theater Command fires jamming bombs during a four-day-long realistic-combat training exercise in waters of the South China Sea. Photo:China Military

A vessel attached to a destroyer flotilla with the navy under the PLA Eastern Theater Command fires jamming bombs during a four-day-long realistic-combat training exercise in waters of the South China Sea. Photo:China Military

On July 12, 2016, under the manipulation of the US, the arbitral tribunal on the South China Sea arbitration case issued an "arbitral award" at the request of the Aquino III government of the Philippines. This staged a farce that shocked the world by sweepingly denying China's claims in the South China Sea. 

In the past five years, the tribunal has already been dissolved and the Aquino III government has been out of power for years. With the passage of time, the international community has come to recognize the essence of this travesty. It was a clumsily staged political show by the Aquino III government, rather than a search for peace in the South China Sea. It offered a preconceived conclusion out of the tribunal's political paranoia rather than a professional ruling based on facts and law. It was a desecration of international law and rules by the US and some other Western countries, rather than a demonstration of international reverence. It was not a pursuit of justice and fairness. 

The past five years have witnessed a fundamental shift from chaos to stability in the South China Sea thanks to the joint efforts of China and other countries in the region. The Chinese government's position on the arbitration is clear, "not accept, not participate, and not recognize." This has come to be widely recognized and accepted by the international community. The "arbitral award" deemed by China as "a piece of scrap paper" has long been thrown into the dustbin of history.

The "award" inevitably ended this way as the arbitral tribunal perverted international law and challenged the UN-centered international system and order. 

Since the end of the World War II more than seventy years ago, peace and development in the world has benefited from the post-war international system. The United Nations emerged as the center of the post-war international system. The UN Charter established the purposes and principles that the post-war international system must adhere to, and international documents such as the Cairo Declaration and the Potsdam Proclamation laid the political foundation for the establishment of the UN and the formulation of its charter. 

After the WWII, China recovered the islands in the South China Sea illegally taken away by Japan and resumed the exercise of its sovereignty there in accordance with the Cairo Declaration and the Potsdam Proclamation and other international treaties. It drew up and published the official map of South China Sea Islands marked with the dashed line. The correct arrangement of China's territorial sovereignty over the South China Sea islands was an integral part of the post-war international system and a major outcome of the World Anti-Fascist War.

The 1982 United Nations Convention on the Law of the Sea (UNCLOS) was concluded and the new international order was subsequently established on the sea under the auspices of the United Nations; all with the post-war international system and the Charter as the fundamental guidelines. The UN always paid close attention to the development and evolution of the customary international law related to historic rights. As early as in 1962, the International Law Commission submitted its report titled, "Judicial Regime of Historic Waters, Including Historic Bays" to the UN Secretariat; the International Court of Justice (ICJ), as the principal judicial organ of the UN, adopted the position that long-standing traditional rights should be respected and protected in international law in its famous verdicts in the Jan Mayen case and the Qatar vs Bahrain case. 

China's historic rights and related rights and interests in the South China Sea, which have been gradually accumulated over a long historical process, were born before UNCLOS and are independent of it. 

The UN Charter grants member states the preferred option of negotiations and consultations to resolve international disputes. Negotiation and consultation has, in fact, become the mainstream pathway for states to settle their disputes, and for China to peacefully resolve border and territorial disputes with its neighbors. In the more than 70 years since the founding of the People's Republic of China, it has resolved border issues with 12 of its 14 land neighbors through negotiations and consultations. Although ad hoc arbitration has been established as a means of dispute settlement in UNCLOS, the establishment and jurisdiction of arbitral tribunals are subject to the prerequisite that they do not violate the principle of "state consent." 

China submitted a written declaration to the UN Secretary General in 2006, as mandated by UNCLOS, that it would not accept compulsory dispute settlement procedures in UNCLOS, including ad hoc arbitration, for any disputes relating to maritime delimitations, historic bays, historic ownership, military activities, and so on.

The arbitral tribunal on the South China Sea case not only ignored the declaration submitted by China to the UN Secretary General, but also did not follow the usual practices of international judicial and arbitral institutions and willfully misinterpreted the UNCLOS provisions. This was done in an attempt to reject all of China's rights and claims in the South China Sea. In essence, while making a sweeping denial of China's rights and claims under the disguise of UNCLOS and driven by the ulterior motives of the US and the Philippines, the arbitral tribunal challenged the existing international order and rules and undermined the authority and sanctity of the UN institutions and UNCLOS.

International law is composed of legally binding principles, rules and institutions developed in the course of international exchanges to regulate international relations. International law is a code of conduct universally recognized and accepted by the international community, not the "international rules" frequently preached by a small number of countries.

Sovereign equality is the cornerstone of contemporary international law. Over the past five years, the international community has come to realize that China's refusal to accept the ruling did not equal a violation of international rules.

In the past year or two alone, the US conducted the targeted killing of senior Iranian military officer Soleimani in Iraq, a blatant violation of the prohibition on the use or threat of use of force in international relations enshrined in the UN Charter. Later, Washington made a public announcement to impose sanctions on prosecutors of the International Criminal Court for investigating alleged US war crimes and crimes against humanity. Its allies and partners have done no less in breaching international law and obligations. 

Take the UK and Japan as examples. The UK defied the advisory opinion of the International Court of Justice that the British occupation of the Chagos Archipelago is illegal, rejected the UN General Assembly resolution calling for the return of Chagos Archipelago to Mauritius by November 2019, and tried all means to resist the decolonization process under the auspices of the UN. It is also routine for Japan to violate principles of international law and treaty obligations. A recent example is its decision to dump nuclear wastewater into the ocean from the crippled Fukushima nuclear power plant, turning a blind eye to global environmental safety and human health for its own selfish interests.

As "state consent" is a prerequisite for international justice and arbitration, states are not obligated to appear before courts in international law. There are many examples of non-participation in judicial proceedings in international practice. For instance, Iceland in the fisheries jurisdiction case, France in the nuclear tests cases, Turkey in the Aegean Sea continental shelf case, and Russia in the Arctic Sunrise case, the above countries refrained from appearing at the proceedings or arbitration throughout the process. In the Nicaragua vs US case, the US withdrew from the proceedings after the ICJ's preliminary ruling, and eventually withdrew from the ICJ.

Obviously, the South China Sea arbitration case orchestrated by the US, which is known for violating international law, is just another case of distorting international law and undermining the norms of international relations under the banner of international law.

In the past five years, thanks to the joint efforts of China and ASEAN, the South China Sea has stabilized, with tensions deescalated and momentum gathering for better developments. China and the Philippines have significantly improved their relations. Littoral states in the South China Sea have effectively managed maritime tensions and differences, and taken steady steps to promote maritime cooperation, leading to continuous progress in cooperation on traditional and non-traditional fields. China and ASEAN countries are committed to the full and effective implementation of the Declaration on the Conduct of Parties in the South China Sea (DOC), with consultations on the Code of Conduct in the South China Sea (COC) progressing in an orderly manner. 

The international community, especially countries in the region, is increasingly aware that the "arbitral award" is nothing but a tool deliberately created by the US to divide the relations between China and ASEAN countries - stirring up the South China Sea and undermining its peace and stability. Maintaining peace and stability in the South China Sea is the shared aspiration and fundamental interests of China and ASEAN, who should never stay idle when the US keeps making waves in the South China Sea. 

Now, China-ASEAN cooperation, the most successful and dynamic in the Asia-Pacific, has become a role model of regional cooperation, and a vivid example of the endeavor to build a community of shared future for mankind. China and ASEAN countries have the confidence, ability and wisdom to remove interference, and stick to the dual-track approach. They all adhere to the principle that disputes should be handled through negotiations and consultations between the countries directly involved. They maintain the good momentum with COC consultations, and work together to uphold regional peace and stability in an effort to build the South China Sea into a sea of peace, friendship and cooperation.

Undoubtedly, out of their strategic anxiety due to their declining international status and deep-rooted institutional weakness, the US and some other Western countries are ganging up and building "a small circle" to contain China in the Asia-Pacific. Against this backdrop, this ruling, which is considered a "scrap paper," will be "showcased" by some countries with ulterior motives. A small number of countries will even label the ruling as "part of international law" or "international rules". This is deviously done in an attempt to deny the legitimacy of China's claims in the South China Sea. This veneer of "legality" is actually covering up their illegal seizure of Chinese territory and their unilateral claims on the sea. 

In this sense, on the fifth anniversary of the ruling today, the best and ultimate way of "commemoration" is to throw it into the dustbin of history. 

The author is President of the National Institute for South China Sea Studies. Ye Qiang and Ding Duo also contributed to this article. opinion@globaltimes.com.cn