The Philippines' action does not comply with proper legal procedures, said Zhang Xinjun, associate professor with the School of Law of Tsinghua University. First, sovereignty of islands is not a subject for the legal interpretation of the Convention. Contracting states should not submit this kind of issue to the procedures of the Convention. Second, the Convention has authorized the contracting parties to exclude disputes like marine demarcation from the legal procedures of the Convention with a statement. China made such a statement in 2006.

Under the circumstances, the Philippines should abide by the rules of the Convention and not take unilateral action. The filing of the arbitration aims to distort and cover up the essence of the dispute over the South China Sea and win the sympathy of the international community. However, practically speaking, calm negotiation and consultation is most the effective way to solve disputes over territorial sovereignty and marine demarcation. Senseless provocations can only worsen the situation.

According to Jia Bingbing, another professor at Tsinghua University, the judicial or arbitratory bodies have to consider the acceptability of a case in international jurisdiction or arbitration. Item 1, Article 281 of the Convention states if state parties have agreed to seek settlement of the dispute by a peaceful means of their own choice, the mandatory arbitration applies only where no settlement has been reached by recourse to such means and the agreement between the parties does not exclude any further procedure. In this case, the Philippine plea obviously does not agree with the above definition.

China and the Philippines have agreed to solve the disputes concerning sovereignty and jurisdiction over the sea by peaceful means. This was stipulated in Article 4 of the Declaration which was signed by China and 10 ASEAN members in 2002, the Sino-Philippine Joint Press Communique in 2004 and the Joint Statement in 2011 signed by the Chinese and Philippine leaders. Moreover, contrary to the remarks by the Philippines, China and the Philippines have not started any negotiations on the disputes. China had invited the Philippines several times to discuss establishing a negotiation mechanism on the South China Sea issue. But the Philippines ignored the invitations. Actually, Article 4 of the Declaration did not mention or imply any other means to resolve territorial and jurisdictional disputes except through friendly consultations and negotiations by the sovereign states directly concerned. Therefore the Philippine plea does not apply to the Convention, and the international arbitration tribunal can not exercise jurisdiction over the case.

Lastly, Qu Xing, head of the China Institute of International Studies, pointed out that the Philippines knew full well that the result of arbitration might not benefit the country, and nor was it valid to China. It will not lead to any favorable change for Philippines on the actual control over the sea either. But the Philippines insisted in filing the arbitration which is based on the following calculations: First is to influence international opinion and put China under the pressure of international community. Second is to divert domestic attention away from its loss of control over Huangyan Island after a hasty provocation of China. Third is to hype up the dispute over the South China Sea to seek illegal profits.

This article was first published in Chinese and translated by Li Shen.

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