On December 26, 2015, Indonesian English Newspaper The Jakarta Post published the article “Criticizing China on the arbitration case lacks sound legal merit” written by Dr. Xu Bu, Chinese Ambassador to ASEAN. The full text is as follows:

Recently, with the second round of hearing by the Arbitral Tribunal in the Hague on the arbitration case unilaterally initiated by the Philippines, the South China Sea issue once again became the focus of the media. Some are well presented opinions and some are, frankly speaking, biased criticism.

I would like to explain why the criticism does not hold water from a legal perspective, and hoping to, at least, help form a balanced and objective view on the ongoing arbitration case.

First and foremost, China’s position not to accept or participate in the arbitration is not an unreasonable refusal, but a well-founded legal decision. In accordance with the United Nations Convention on the Law of the Sea (UNCLOS), the state parties are entitled to the right of choosing compulsory dispute settlements including arbitration. At the same time, under UNCLOS Article 298, states are also entitled to declare “that it does not accept any one or more of the procedures provided for in SectionⅡwith respect to…disputes concerning the sea boundary delimitation, or those involving historic bays or titles…”

As early as 2006, China already filed a declaration to exclude those procedures applying to disputes of territorial sovereignty made in the light of the aforesaid article. In fact, China is not the first country practicing this right. There are all in all around 30 states, such as Australia, Canada, France, Demark, Norway, Portugal, Spain and Italy, having made similar declarations excluding the applicability of compulsory disputes settlements of the UNCLOS when it comes to sovereignty issues.

Furthermore, the jurisdiction of the Arbitral Tribunal over an inter-state dispute depends on the prior consent of the parties concerned. This legal practice has been further affirmed in the arbitral award concerning the well-known Southern Blue-fin Tuna Case. Back then, the Tribunal recognized that state parties “are permitted by Article 281(1) to confine the applicability of compulsory procedures…to cases where all parties to the dispute have agreed upon submission of their dispute to such compulsory procedures”.

The arbitration case unilaterally initiated by the Philippines apparently contravenes the principle of “mutual agreement” and could be regarded as an abuse of rights. Without the prior consent between the concerned parties, the international judicial bodies will make no contribution to the peaceful settlement of the disputes.

Most importantly, by requesting the Arbitral Tribunal to apply the UNCLOS to determine the extent of China’s maritime rights in the South China Sea, without first having ascertained sovereignty over the relevant maritime features, the Philippines contravenes the international jurisprudence on the settlement of international maritime disputes.

The delicate packaging of the arbitration case by the Philippines, however, fails to conceal the very essence of the subject-matter of the arbitration, namely, the territorial sovereignty over certain maritime features in the South China Sea, which is definitely not subject to the jurisdiction of the UNCLOS. Therefore, it is legally reasonable and rational for China to choose not to accept or participate in the arbitration process.

Essentially speaking, what the Philippines has been attempting to deprive China of is the respect shown by the UNCLOS to China’s historical title. The preamble of the UNCLOS proclaims that “the desirability of establishing through this Convention, with due regard for the sovereignty of all states, a legal order for the seas and oceans.” It is very clear that the sovereignty of state parties constitutes the prerequisite for application of the UNCLOS to determine the maritime rights of state parties.

The preamble also stipulates that, “matters not regulated by this Convention continue to be governed by the rules and principles of general international law”, which indicates that there are still rules and principles of the general international law, out of the governance of but still confirmed and respected by the UNCLOS. The historic title is one of them.

Under Article 15 and Article 298, the UNCLOS reiterates that historic title is one of the main rights of the states and regarded as an exceptional arrangement in dealing with sovereignty issues. China’s sovereignty and maritime rights and interests in the South China Sea have formed and evolved over a long course of history, which naturally constitute the historic title. Therefore, the historic title enjoyed by the Chinese side in the South China Sea is not something just unilaterally declared by China.

Just as Greg Austin, an American scholar, who recently wrote in an article on the National Interest, “Any assumption that China has somehow expanded its maritime claims because it now feels more powerful is not borne out by the fact. China only has the willingness to act robustly, as most states would, to defend pre-existing sovereignty claims that have been in place for at least 66 years.”

The Philippines always focuses on playing up China’s refusing to participate in the arbitration, while being evasive on its own going back on the political agreement and commitment with China to address the South China Sea issue through bilateral negotiations. As for both China and the Philippines, the South China Sea issue is far from a new issue. For many years, both sides cooperated closely in managing the disputes and maintaining constructive communications.

On 10 August 1995, China and Philippines issued Joint Statement concerning Consultations on the South China Sea and on Other Areas of Cooperation. In 2011, another Joint Statement between the two sides was issued during President Aquino’s state visit to China. These are just examples out of many political agreements between the two sides exploring ways to address the dispute.

The completion of land boundary demarcation between China and most of its neighboring countries showcases that bilateral consultations and negotiations, without being disturbed by external interference or coercion, could address the complex sovereignty disputes in a more constructive and sustainable manner.

Looking forward, neither accepting nor participating in the arbitration by no means mean that China won’t get the South China Sea issue resolved. China, together with the ASEAN members, have been doing a lot in assuring a full and effective implementation of the Declaration on the Conduct of Parties in the South China Sea (DOC),and pushing forward the consultation on the conclusion of a Code of Conduct (COC). The past two years witnessed encouraging achievements.

China will do everything possible, together with the related countries, to manage the differences on the basis of respect for historical facts and international law, and strive for an appropriate solution to the South China Sea issue.

After all, resolving the South China Sea issue is such a complex and sensitive task that each party should exercise patience, sincerity, wisdom and flexibility. Securing one resolution acceptable to all is definitely not an easy job. However, where there is a will, there is a way.

We very much look forward to the Philippines drawing on the good practices between and political wisdom of both sides, making good on its serious commitments, coming back to the negotiation table in a realistic and responsible manner. China has been, is and will always be standing ready to get this hard task done together with all the parties concerned.