THE “NINE-DASH LINE”
RESPONSE TO THE INTERVIEW OF CHINESE AMBASSADOR WU KEN
by Ambassador Jaime Victor B. Ledda
07 June 2016, The Hague
In an interview with Xinhuanet last 28 May 2016, China’s Ambassador to the Netherlands, Wu Ken, characterized the South China Sea arbitration as “a legal monstrosity and reeks [of] hegemony from Washington”. We are compelled to correct this erroneous and irresponsible statement.
The fundamental issue in the South China Sea is China’s excessive and expansive claim over nearly the entire sea, as represented by the nine-dash line. Its claims to sovereign rights and jurisdiction, and to “historic rights”, with respect to the so-called nine-dash line are contrary to the1982 UN Convention on the Law of the Sea and without lawful effect to the extent that they exceed the geographic and substantive limits of China’s maritime entitlements under the Convention.
China has pursued its expansionist agenda in the South China Sea in the recent years, attempting to change the status quo to actualize this claim. Using force and intimidation, it has prevented coastal states from exercising their legitimate rights provided by UNCLOS. Against calls for self-restraint, it completed unprecedented artificial island-building on submerged features that destroyed extensive coral reefs of one of the most richly-diverse marine eco-regions on earth. Early this year, it carried out test flights on Fiery Cross Reef and embarked on the militarization of the disputed features in the guise of providing “public goods”. It has undertaken progressively alarming actions that constitute threats to freedom of navigation and overflight and unimpeded commerce in this strategic body of water.
The Philippines’ arbitration proceedings in January 2013 vis-a-vis China was a response to these developments, consistent with the country’s commitment to the peaceful and rules-based resolution of disputes on the basis of international law, particularly the UNCLOS.
No Abuse of Process
The arbitration initiated by the Philippines under Part XV of UNCLOS does not constitute an abuse of rights or process. This matter was addressed by the Tribunal in its October 2015 Award on Jurisdiction and Admissibility which found that “the Philippines had sought to negotiate with China and… international law does not require a State to continue negotiations when it concludes that the possibility of a negotiated solution has been exhausted.”
Prior to initiating the arbitration, the Philippines exhausted all reasonable means of political and diplomatic negotiations with China. This included several high-level meetings that did not result in any settlement because China always insisted on its “indisputable sovereignty” over almost all of the South China Sea. Coupled with this were China’s efforts to delay negotiations for a legally-binding Code of Conduct for meaningful negotiations to peacefully settle the South China Sea dispute.
Over the years, China’s positions and behavior have become progressively more aggressive and disconcerting, calculated to consolidate de facto control throughout the South China Sea in pursuit of its claim. These caused the Philippines to conclude that it had no alternative but to go to arbitration.
China often refers to the 2002 ASEAN-China Declaration of Conduct (DOC) of the Parties in the South China Sea as the legal instrument that prescribes negotiations between the parties as the only means to settle the dispute. The DOC, however, does not specify that negotiations shall be the sole and exclusive means to settle the dispute, especially when negotiations have not led to any settlement. In fact, the DOC itself (in paragraphs 1 and 3) repeatedly invokes the UNCLOS and the UN Charter in general, which are legal instruments that point to arbitration as among the peaceful means to settle disputes.
Jurisdiction of the tribunal
Contrary to China’s position, the arbitration is not a case concerning territorial dispute or maritime delimitation which are beyond the Tribunal’s jurisdiction.
The Philippines did not ask the Tribunal to rule on the territorial sovereignty aspect of its dispute with China, or to delimit any overlapping maritime zones. Instead, it only seeks to clarify its maritime entitlements and that of the various features in the South China Sea regardless of who owns or occupies them, i.e., without going into the issue of sovereignty. The Philippines also did not ask the Tribunal to delimit overlapping maritime zones, but has asked for the determination of the maritime entitlements of the features in the South China Sea, which is an entirely different legal question.
Again, these are matters already settled by the Tribunal, which carefully took into account China’s Position Paper on the issue of jurisdiction and admissibility.
As such, all of the issues which the Chinese Ambassador raised during his interview were already considered by the Tribunal. The fact that the Tribunal ruled that it has jurisdiction over the Philippine submissions validates the fact that the arbitral proceedings fall squarely within the provisions of UNCLOS.
Integrity of the Tribunal
China accuses the Tribunal of being biased for “ignoring what China stands for”. It should be stressed that China was invited several times to participate in every step of the arbitral proceedings. Its Position Paper was duly considered and thoroughly discussed in the Tribunal’s Award. Despite its non-appearance, China is and remains a Party to the arbitration and is bound under international law by any award rendered by the Tribunal. China’s non-participation in the proceeding does not render the Tribunal’s proceedings invalid.
Statements challenging the integrity of international legal institutions are unfair and irresponsible. China cannot unilaterally undermine international legal institutions that have defined The Hague as the city of peace and justice.
Support of other countries
The Philippines conducts an independent foreign policy based on the principle of sovereign equality of States and the rule of law. Its decision to pursue arbitration was prompted by no other considerations but the protection of its legitimate interests under the 1982 UNCLOS.
Other countries have issued statements in support of efforts to peacefully manage and settle the disputes in South China Sea in accordance with international law including UNCLOS and its third-party dispute settlement procedures.
These statements attest to the heightened sense of alarm of the region and international community on China’s actions and their obliging interest in the peaceful management and resolution of the disputes in the South China Sea and in keeping this sea secure and stable.
This includes the Press Statement by the Chairman of the ASEAN Foreign Ministers’ Retreat held in Vientiane, Laos on 27 February 2016, the EU’s Declaration on the recent developments in the South China Sea issued on 11 March 2016, the G7 Foreign Ministers Statement on Maritime Security on 11 April 2016, and most recently the G7 Leaders’ Declaration issued following the G7 Leaders’ Summit in Ise-Shima, Japan on 26-27 May 2016.
Rule of law
The maritime entitlements of coastal States are established, defined and limited by the express terms of the Convention. Those express terms do not allow for—in fact they preclude—claims to broader entitlements, or sovereign rights or jurisdiction, over maritime areas beyond the limits of the EEZ or continental shelf.
International law is determined collectively by the community of nations, operating on the fundamental principle of sovereign equality, and the international legal institutions tasked to interpret and uphold it.
The Philippines will fully respect the outcome of the arbitration and hopes that China will do the same. END.