On December 7, China’s Foreign Ministry released a copy of China’ s position paper regarding the Philippines’ appeal to international arbitration over South China Sea disputes. It’s the first time China has outlined in detail its position regarding the case. China has long stated that it will not participate in or accept the results of the arbitration; the release of the position paper provides a legal justification for that stance.
According to Xu Hong, the director-general of the Foreign Ministry’s Department of Treaty and Law, the government decided to release the paper to clear up misperceptions of China’s position. “Some people, who do not know the truth, have questioned China’s position of not accepting or participating in the arbitration. Some others, who harbor ulterior motives, have made … accusations or insinuations that China does not abide by international law,” Xu explained. In response to those criticisms, Xu said, the position paper “debunks the Philippines’ groundless assertions and projects China’s image as a defender and promoter of the international rule of law.”
The crux of the matter is that China does not believe that the arbitral tribunal has jurisdiction to decide the case. More broadly, China rejects the notion that the UN Convention on the Law of the Sea (UNCLOS) can be used to decide South China Sea sovereignty issues, which Beijing maintains is at the heart of the Philippine case. “To decide upon any of the Philippines’ claims, the Arbitral Tribunal would inevitably have to determine, directly or indirectly, the issue of territorial sovereignty over both the maritime features in question and other maritime features in the South China Sea… The issue of territorial sovereignty falls beyond the purview of the Convention,” China’s position paper concludes. One of the first things the tribunal will have to decide is, in fact, whether it has the jurisdiction to consider the case at all. China has just made clear its position: that the case should not be allowed to move forward.
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