IV. Even assuming, arguendo, that the subject matter of the arbitration were concerned with the interpretation or application of the Convention, the subject matter would still be an integral part of maritime delimitation and, having been excluded by the 2006 Declaration filed by China from the compulsory dispute settlement procedures, could not be submitted for arbitration.

On August 25, 2006, China deposited, pursuant to Article 298 of the Convention, with UN Secretary General a declaration stating that the Government of the People's Republic of China does not accept any of the compulsory settlement procedures provided for in the Convention with respect to disputes concerning maritime delimitation, among others.

Maritime delimitation is an integral, systematic process. The international law applicable to maritime delimitation includes both the Convention and general international law. Maritime delimitation involves a consideration of not only entitlements, effect of maritime features, and principles and methods of delimitation, but also all relevant factors that must be taken into account, in order to attain an equitable solution.

The subject matter of the arbitration initiated by the Philippines constitutes an integral part of maritime delimitation between China and the Philippines, and, as such, can only be considered under the over-arching framework of maritime delimitation between China and the Philippines, and in conjunction with all the relevant rights and interests the parties concerned enjoy in accordance with the convention, general international law, and historical or long-standing practice in the region for overall consideration.

Ostensibly, the Philippines is not seeking from the Arbitral Tribunal a ruling regarding maritime delimitation, but instead a decision, inter alia, that certain maritime features are part of the Philippines' Exclusive Economic Zone (EEZ) and continental shelf, and that China has unlawfully interfered with the enjoyment and exercise by the Philippines of sovereign rights in its EEZ and continental shelf. The Philippines' claims have in effect covered the main aspects and steps in maritime delimitation. Should the Arbitral Tribunal address substantively the Philippines' claims, it would amount to a de facto maritime delimitation.

The exclusionary declarations filed by the states parties to the Convention under Article 298 of the Convention must be respected. By initiating the present compulsory arbitration as an attempt to circumvent China's 2006 declaration, the Philippines is abusing the dispute settlement procedures under the Convention.

V. China's right to freely choose the means of dispute settlement must be respected, and its rejection of and non-participation in the present arbitration is solidly grounded in international law.

Under international law, every state is free to choose the means of dispute settlement. In exercise of its power to decide on its jurisdiction, any judicial or arbitral body should respect the right of the states parties to the Convention to freely choose the means of settlement.

While being fully aware that its claims essentially deal with territorial sovereignty, that China has never accepted the compulsory procedures in respect of those disputes, and that there has been an agreement existing between the two states to settle their relevant disputes by negotiation, the Philippines has nevertheless initiated, by unilateral action, compulsory procedures of arbitration. This surely contravenes the relevant provisions of the Convention, and undermines the peaceful process for the settlement of the disputes. In view of what is stated above and in light of the manifest lack of jurisdiction on the part of the Arbitral Tribunal, the Chinese Government has decided not to accept or participate in the present arbitration, in order to preserve China's sovereign right to choose the means of peaceful settlement of its own free will and the effectiveness of its 2006 declaration, and to maintain the authority and solemnity of the international legal regime for the oceans.

VI. The issue of the South China Sea involves a number of states, and is compounded by complex historical background and sensitive political factors. Its final resolution demands patience and political wisdom from all parties concerned. China always maintains that the parties concerned shall seek proper ways and means of settlement through consultation and negotiation on the basis of respect for history and international law. Pending its final settlement, all parties concerned should engage in dialogue and cooperation to preserve peace and stability of the South China Sea, enhance mutual trust, clear up doubts, and create conditions for the eventual resolution of the issue.

The unilateral initiation of the present arbitration by the Philippines will not change the history and fact of China's sovereignty over the South China Sea Islands and the adjacent waters; nor will it shake China's resolve and determination to safeguard its sovereignty and relevant maritime rights and interests; nor will it affect China's policy and position of resolving the disputes in the South China Sea by direct negotiation and working together with other states in the region to maintain peace and stability in the South China Sea.

Email us at: yanwei@bjreview.com