Column: Some countries stirring up tensions in South China Sea only make fool of themselves

by Shao Xia

A decade after the illegal "South China Sea arbitration award," some countries issued a statement hyping it up again. But what was widely rejected 10 years ago can not be made valid today. From both legal and factual standpoints, that statement contains at least four foundational fallacies.

The first is the assertion that the "award" is final, valid and must be complied with. Some countries call it "final and legally binding." Yet one of the most fundamental principles of international law is state consent: No sovereign state can be compelled into arbitration against its will. By unilaterally initiating the proceedings without China's consent, the Philippines violated this very principle from the outset, rendering the entire process illegal before it even began.

The "tribunal" itself was neither the International Court of Justice nor the International Tribunal for the Law of the Sea (ITLOS), but merely a patched-up, ad hoc body, using the Permanent Court of Arbitration only as its registry. Of its five arbitrators, one was appointed by the Philippines; the other four were appointed by then ITLOS President Shunji Yanai, a right-winger, and none of them were Asian. That a "tribunal" adjudicating disputes between Asian states should lack a single impartial Asian arbitrator failed even the most basic standards of representativeness and procedural justice.

Hence, it was not surprising that the "tribunal" staged a farce of disregarding the facts, exceeding its authority, and distorting the law.

As a matter of fact, the UN Convention on the Law of the Sea (UNCLOS) governs maritime zones such as territorial seas, exclusive economic zones, and continental shelves; but it does not decide sovereignty over islands or other maritime features. The Philippines' claims were, in essence, about territorial sovereignty over features in the South China Sea, a matter plainly outside UNCLOS jurisdiction.

Moreover, in 2006, China exercised its lawful right under Article 298 of UNCLOS to exclude disputes concerning maritime delimitation, among others, from compulsory dispute settlement. This is a lawful right expressly provided for by UNCLOS and exercised by numerous states. The "tribunal" nevertheless seized jurisdiction by allowing the Philippines to repackage territorial and delimitation disputes as disputes concerning the interpretation or application of UNCLOS.

China and the Philippines had agreed, through bilateral documents and the Declaration on the Conduct of Parties in the South China Sea (DOC), to settle relevant disputes through negotiation. By unilaterally initiating arbitration, the Philippines breached the fundamental principle of pacta sunt servanda, i.e. agreements must be observed.

The substantive findings of the "tribunal" were fundamentally flawed. It denied China's rights and interests based on customary international law and historical practice, and misapplied Article 121 of UNCLOS on the regime of islands to conclude that none of the maritime features in the Nansha or Zhongsha Islands could generate an exclusive economic zone or continental shelf. Yet Taiping Island, part of the Nansha Islands, alone tells a different story: spanning 500,000 square meters, with freshwater, vegetation, and a self-sustaining ecosystem, it has supported continuous human habitation. Chinese fishermen have long lived on the island, fishing, digging wells, farming, building homes and temples, and raising livestock. Historical records, from Chinese fishermen's Genglu Bu (Book of Ship's Routing), to foreign archives, document Chinese activity across the Nansha Islands.

Those now championing the "award" would do well to examine their own records first. If the standard of the "tribunal" were applied consistently, what would become of claims based on features such as the Johnston Atoll with an area of 190,000 square meters, or Japan's Okinotori Reef of less than 10 square meters? Besides, Japan's attempt to use Okinotori Reef to claim vast surrounding maritime zones already runs counter to UNCLOS and harms the common interests of the entire international community.

The second fallacy is the accusation that China made "excessive maritime claims." Chinese activity in the South China Sea dates back more than 2,000 years. China was the first to discover, name, and develop the South China Sea Islands, and has exercised continuous, peaceful and effective sovereignty and jurisdiction over them and their relevant waters since. On the basis of customary international law and historical facts, China enjoys historic rights in the South China Sea. As a party to UNCLOS, China enjoys maritime rights under the Convention. International practice shows that historic rights and UNCLOS can and do coexist.

Canada has invoked historic rights in Arctic waters; the European Union and its members have long claimed historic fishing rights in certain waters. Yet these very same countries reject China's historic rights in the South China Sea. That is a blatant double standard.

In fact, China's sovereignty over the South China Sea Islands was never challenged before the 20th century. Japan illegally occupied them during its war of aggression against China. After Japan's unconditional surrender, China recovered the islands pursuant to the Cairo Declaration and Potsdam Proclamation. That recovery formed part of the postwar international order and is protected by international law.

The third fallacy is the narrative that China uses "force or coercion." A few questions deserve honest answers. Who has been drawing external powers into the region, provoking incidents, intruding into the waters and airspace around Chinese islands and reefs, and staging dramatic incidents on the sea? Who sends warships and military aircraft from far away under the pretext of "freedom of navigation," conducts frequent joint military exercises, and heightens regional tensions? Who is expanding military deployments, building bases, installing missile systems, and deliberately pushing the South China Sea toward confrontation?

In the face of all these provocations, China has taken reasonable and lawful actions to defend its territorial sovereignty, security and maritime rights and interests, and always advocated the peaceful settlement of relevant disputes through negotiation and consultation, grounded in historical facts and international law. It has been working with ASEAN countries to implement the DOC, advance consultations on a Code of Conduct, maintain bilateral maritime consultation mechanisms, and promote cooperation on fisheries, oil and gas, search and rescue, environmental protection, and maritime safety.

The fourth fallacy is the claim that freedom of navigation and overflight is threatened in the South China Sea. Facts show the opposite. Each year, more than 500,000 merchant vessels transit the South China Sea; around 30 percent of global container traffic, 34 percent of liquefied natural gas, and 40 percent of crude oil traverse its waters; and more than a million civilian flights cross its airspace. The South China Sea remains one of the world's safest and busiest sea and air routes.

But navigation is not rampage, and freedom is not lawlessness. Close-in reconnaissance by destroyers and coast guard intrusions into territorial waters are not lawful exercises of freedom, they are provocations, plain and simple.

The "South China Sea Arbitration" was a sheer political farce. The facts and legal principles are clear. Those who truly want to resolve South China Sea issues should wake from their illusions, sit down in good faith, and return to practical dialogue.

Editor's note: Shao Xia is a commentator on international affairs, writing regularly for Xinhua News Agency, the Global Times, China Daily, CGTN, etc.

The views expressed in this article are those of the author and do not necessarily reflect the positions of Xinhua.