Pan Guoping

    13901057847@sina.com

    THE South China Sea arbitration case filed by the Philippines is the first case in China’s history that involves territorial sovereignty and ocean rights. On Oct. 29, an arbitration court in The Hague ruled that it has jurisdiction to hear some territorial claims the Philippines has filed against China over disputed areas in the South China Sea. On the same day, the Chinese Government dismissed the Permanent Court of Arbitration’s decision, declaring the ruling invalid to China.

    Beijing has been advocating a bilateral solution to the disputes and has made it clear it would never accept the court’s forced jurisdiction and would not participate in the proceedings. In official documents issued Dec. 7, 2014, the Chinese Foreign Ministry presented reasons why China would not accept a forced arbitration and why the court has no jurisdiction, and listed the facts showing Manila violated the Declaration on the Code of Conduct on the South China Sea. However, the court did not give full consideration to China’s stance while unfairly favoring Manila. If Manila continued to twist the United Nations Convention on the Law of the Sea (UNCLOS) and abuse means of litigation, Beijing would have to consider withdrawing from UNCLOS. China has several reasons to do so.

    1. UNCLOS is not applicable in solving territorial sovereignty.

    UNCLOS states its goal as, “Recognizing the desirability of establishing through this Convention, with due regard for the sovereignty of all States, a legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment.” Therefore, the convention has no authority in deciding how a territorial sovereignty was originally acquired, lost or transferred. However, the core of the disputes lies exactly in the territorial sovereignty over some of islands and shoals within the nine-dash line in the South China Sea. So the South China Sea territorial disputes cannot be solved under UNCLOS.

    Zhang Haiwen, a department chief at the Chinese State Oceanic Administration, argued that the resolution of the Nansha Islands disputes should be based on two things: First, history. The handling of all territorial disputes usually involves historical facts and proceedings. Second, legal basis, especially rules concerning the acquisition of territories. These two aspects fall out of stipulations in UNCLOS. Those arguments that overemphasize the roles of UNCLOS and downplay or even deny rules of other international laws are biased and erroneous. UNCLOS is not the only basis to resolve South China Sea disputes.

    2. UNCLOS is not retrospective.

    UNCLOS became effective in 1994; therefore, it can only apply to ocean disputes that occurred after 1994. Chinese started fishing in the South China Sea in ancient times. Zheng He’s fleet explored the sea during the Ming Dynasty. The naval forces under the government of the Republic of China occupied the islands and shoals in the South China Sea for hydrological and scientific research and other activities. The ROC government made public to the world an 11-dash line (adjusted to nine dashes after the Beibu Bay demarcation) and received no objection from the international community, including neighboring countries. The People’s Republic of China inherited the South China Sea rights in 1949. China’s rights over the South China Sea were officially established in 1947, long before 1994 when UNCLOS came into effect.

    3. UNCLOS has become a tool by some countries in infringing the lawful interests of other countries.

    Under UNCLOS, Vietnam, the Philippines, Indonesia, Malaysia and Brunei enjoy 200-nautical-mile exclusive economic zones, which in most cases breach China’s nine-dash line in the South China Sea. To safeguard China’s historical rights over the nine-dash line, withdrawing from UNCLOS becomes an inevitable choice. Compliance with UNCLOS means China has to give up the nine-dash line, which means 80 percent of the South China Sea, including the Dongsha Islands, the Xisha Islands, the Zhongsha Islands and the Nansha Islands. China should stick to its long-existing stance over the nine-dash line and should not waver even a little.

    4. UNCLOS allows member countries to exit.

    Article 317 of UNCLOS states, “A State Party may, by written notification addressed to the Secretary-General of the United Nations, denounce this Convention and may indicate its reasons. Failure to indicate reasons shall not affect the validity of the denunciation. The denunciation shall take effect one year after the date of receipt of the notification unless the notification specifies a later date.” Exit from UNCLOS doesn’t constitute a breach of convention, and China doesn’t have to shoulder any responsibility for breaches of convention or pay compensation.

    It has become very necessary for China to reconsider and re-evaluate its UNCLOS membership. Some scholars believe an exit will hurt China’s image as a world power. Such beliefs are too conservative. Exit from or entry into a convention and abolition of and reserve over a convention should be diplomatic maneuvers.

    Territorial disputes fall out of the jurisdiction of UNCLOS, which cannot decide on the legality of the nine-dash line either. UNCLOS encroaches on the nine-dash line and has become very unfavorable to China.

    Beijing has always sought diplomatic solutions, yet Manila has continued to provoke China. China has to consider exiting UNCLOS and should not abide by any ruling of the court of arbitration.

    (The author is a professor at the School of International Law and deputy secretary-general of the Institute of China-ASEAN Law with Southwest University of Political Science and Law.)