iv. The Philippines' unilateral initiation of arbitration is an act of bad faith
115. On 22 January 2013, the then government of the Republic of the Philippines unilaterally initiated the South China Sea arbitration. In doing so, the Philippines has turned its back on the consensus reached and repeatedly reaffirmed by China and the Philippines to settle through negotiation the relevant disputes in the South China Sea and violated its own solemn commitment in the DOC. Deliberately packaging the relevant disputes as mere issues concerning the interpretation or application of UNCLOS while knowing full well that territorial disputes are not subject to UNCLOS and that maritime delimitation disputes have been excluded from the UNCLOS compulsory dispute settlement procedures by China's 2006 declaration, the Philippines has wantonly abused the UNCLOS dispute settlement procedures. This initiation of arbitration aims not to settle its disputes with China, but to deny China's territorial sovereignty and maritime rights and interests in the South China Sea. This course of conduct is taken out of bad faith.
116. First, by unilaterally initiating arbitration, the Philippines has violated its standing agreement with China to settle the relevant disputes through bilateral negotiation. In relevant bilateral documents, China and the Philippines have agreed to settle through negotiation their disputes in the South China Sea and reaffirmed this agreement many times. China and the Philippines made solemn commitment in the DOC to settle through negotiation relevant disputes in the South China Sea, which has been repeatedly affirmed in bilateral documents. The above bilateral documents between China and the Philippines and relevant provisions in the DOC are mutually reinforcing and constitute an agreement in this regard between the two states. By this agreement, they have chosen to settle the relevant disputes through negotiation and to exclude any third party procedure, including arbitration. Pacta sunt servanda. This fundamental norm of international law must be observed. The Philippines' breach of its own solemn commitment is a deliberate act of bad faith. Such an act does not generate any right for the Philippines, nor does it impose any obligation on China.
117. Second, by unilaterally initiating arbitration, the Philippines has violated China's right to choose means of dispute settlement of its own will as a state party to UNCLOS. Article 280 of Part XV of UNCLOS stipulates: "Nothing in this Part impairs the right of any States Parties to agree at any time to settle a dispute between them concerning the interpretation or application of this Convention by any peaceful means of their own choice." Article 281 of UNCLOS provides: "If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed to seek settlement of the dispute by a peaceful means of their own choice, the procedures provided for in this Part apply only where no settlement has been reached by recourse to such means and the agreement between the parties does not exclude any further procedure". Given that China and the Philippines have made an unequivocal choice to settle through negotiation the relevant disputes, the compulsory third-party dispute settlement procedures under UNCLOS do not apply.
118. Third, by unilaterally initiating arbitration, the Philippines has abused the UNCLOS dispute settlement procedures. The essence of the subject-matter of the arbitration initiated by the Philippines is an issue of territorial sovereignty over some islands and reefs of Nansha Qundao, and the resolution of the relevant matters also constitutes an integral part of maritime delimitation between China and the Philippines. Land territorial issues are not regulated by UNCLOS. In 2006, pursuant to Article 298 of UNCLOS, China made an optional exceptions declaration excluding from the compulsory dispute settlement procedures of UNCLOS disputes concerning, among others, maritime delimitation, historic bays or titles, military and law enforcement activities. Such declarations made by about 30 states, including China, form an integral part of the UNCLOS dispute settlement mechanism. By camouflaging its submissions, the Philippines deliberately circumvented the optional exceptions declaration made by China and the limitation that land territorial disputes are not subject to UNCLOS, and unilaterally initiated the arbitration. This course of conduct constitutes an abuse of the UNCLOS dispute settlement procedures.
119. Fourth, in order to push forward the arbitral proceedings, the Philippines has distorted facts, misinterpreted laws and concocted a pack of lies:
— The Philippines, fully aware that its submissions concern China's territorial sovereignty in the South China Sea, and that territorial issue is not subject to UNCLOS, deliberately mischaracterizes and packages the relevant issue as those concerning the interpretation or application of UNCLOS;
— The Philippines, fully aware that its submissions concern maritime delimitation, and that China has made an declaration, pursuant to Article 298 of UNCLOS, excluding disputes concerning, among others, maritime delimitation from the UNCLOS third-party dispute settlement procedures, intentionally detaches the diverse factors that shall be taken into consideration in the process of a maritime delimitation and treat them in an isolated way, in order to circumvent China's optional exceptions declaration;
— The Philippines deliberately misrepresents certain consultations with China on maritime affairs and cooperation, all of a general nature, as negotiations over the subject-matters of the arbitration, and further claims that bilateral negotiations therefore have been exhausted, despite the fact that the two states have never engaged in any negotiation on those subject-matters;
— The Philippines claims that it does not seek a determination of any territorial issue or a delimitation of any maritime boundary, and yet many times in the course of the arbitral proceedings, especially during the oral hearings, it denies China's territorial sovereignty and maritime rights and interests in the South China Sea;
— The Philippines turns a blind eye to China's consistent position and practice on the South China Sea issue, and makes a completely false assertion that China lays an exclusive claim of maritime rights and interests to the entire South China Sea;
— The Philippines exaggerates Western colonialists' role in the South China Sea in history and denies the historical facts and corresponding legal effect of China's longstanding exploration, exploitation and administration in history of relevant waters of the South China Sea;
— The Philippines puts together some remotely relevant and woefully weak pieces of evidence and makes far-fetched inferences to support its submissions;
— The Philippines, in order to make out its claims, arbitrarily interprets rules of international law, and resorts to highly controversial legal cases and unauthoritative personal opinions in large quantity.
120. In short, the Philippines' unilateral initiation of arbitration contravenes international law including the UNCLOS dispute settlement mechanism. The Arbitral Tribunal in the South China Sea arbitration established at the Philippines' unilateral request has, ab initio, no jurisdiction, and awards rendered by it are null and void and have no binding force. China's territorial sovereignty and maritime rights and interests in the South China Sea shall under no circumstances be affected by those awards. China does not accept or recognize those awards. China opposes and will never accept any claim or action based on those awards.
