212
B. Qu
any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry,
mediation, conciliation, arbitration, judicial settlement, resort to regional agencies
or arrangements, or other peaceful means of their own choice. In this provision, the
various methods of peaceful settlement are not set out in any order of priority, but
the first mentioned, negotiation, is the principal means of handling all international
disputes.
35
11.3 Practice of China’s Non-participation in Compulsory
Arbitration
China’s non-participation in compulsory arbitration mainly refers to the nonparticipation in the South China Sea arbitration unilaterally initiated by the Philippines. The “Position Paper of the Government of the People’s Republic of China on
the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic
of the Philippines” (Position Paper),
36 “The Tribunal’s Award in the ‘South China
Sea Arbitration’ Initiated by the Philippines is Null and Void”
37 and “The South
China Sea Arbitration Awards: A Critical Study” published by the Chinese Society
of International Law,
38 elaborated the reasons of China’s non-participation in that
arbitration. Firstly, the essence of the subject-matter of the arbitration is the territorial sovereignty over several maritime features in the South China Sea, which is
beyond the scope of UNCLOS and does not concern the interpretation or application
of UNCLOS.
39 Secondly, China and the Philippines have agreed, through bilateral
instruments and the DOC, to settle their relevant disputes through negotiation. By
35 J.G. Merrills. International Dispute Settlement, 5th Edition, New York: Cambridge University
Press 2011, p. 2. Position Paper of the Government of the People’s Republic of China on the
Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines, https://www.fmprc.gov.cn/mfa_eng/wjb_663304/zzjg_663340/tyfls_665260/tfsxw_665262/
t1217147.shtml, visited on 29 May 2020.
36 Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in
the South China Sea Arbitration Initiated by the Republic of the Philippines, https://www.fmprc.gov.
cn/mfa_eng/wjb_663304/zzjg_663340/tyfls_665260/tfsxw_665262/t1217147.shtml, visited on 29
May 2020.
37 Chinese Society of International Law, The Tribunal’s Award in the “South China Sea Arbitration”
Initiated by the Philippines is Null and Void, Beijing:Law Press 2016, pp. 1–110.
38 Chinese Society of International Law, The South China Sea Arbitration Awards: A Critical Study,
Beijing: Foreign Languages Press 2018, pp. 1–654.
39 Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines, paras.
4-29, https://www.fmprc.gov.cn/mfa_eng/wjb_663304/zzjg_663340/tyfls_665260/tfsxw_665262/
t1217147.shtml, visited on 29 May 2020; Chinese Society of International Law, The Tribunal’s
Award in the “South China Sea Arbitration” The South China Sea Arbitration Awards, Law Press
2016, pp. 79–86; Chinese Society of International Law, The South China Sea Arbitration Awards:
A Critical Study, Foreign Languages Press 2018, paras. 84–109, paras. 207–269.
B. Qu
any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry,
mediation, conciliation, arbitration, judicial settlement, resort to regional agencies
or arrangements, or other peaceful means of their own choice. In this provision, the
various methods of peaceful settlement are not set out in any order of priority, but
the first mentioned, negotiation, is the principal means of handling all international
disputes.
35
11.3 Practice of China’s Non-participation in Compulsory
Arbitration
China’s non-participation in compulsory arbitration mainly refers to the nonparticipation in the South China Sea arbitration unilaterally initiated by the Philippines. The “Position Paper of the Government of the People’s Republic of China on
the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic
of the Philippines” (Position Paper),
36 “The Tribunal’s Award in the ‘South China
Sea Arbitration’ Initiated by the Philippines is Null and Void”
37 and “The South
China Sea Arbitration Awards: A Critical Study” published by the Chinese Society
of International Law,
38 elaborated the reasons of China’s non-participation in that
arbitration. Firstly, the essence of the subject-matter of the arbitration is the territorial sovereignty over several maritime features in the South China Sea, which is
beyond the scope of UNCLOS and does not concern the interpretation or application
of UNCLOS.
39 Secondly, China and the Philippines have agreed, through bilateral
instruments and the DOC, to settle their relevant disputes through negotiation. By
35 J.G. Merrills. International Dispute Settlement, 5th Edition, New York: Cambridge University
Press 2011, p. 2. Position Paper of the Government of the People’s Republic of China on the
Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines, https://www.fmprc.gov.cn/mfa_eng/wjb_663304/zzjg_663340/tyfls_665260/tfsxw_665262/
t1217147.shtml, visited on 29 May 2020.
36 Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in
the South China Sea Arbitration Initiated by the Republic of the Philippines, https://www.fmprc.gov.
cn/mfa_eng/wjb_663304/zzjg_663340/tyfls_665260/tfsxw_665262/t1217147.shtml, visited on 29
May 2020.
37 Chinese Society of International Law, The Tribunal’s Award in the “South China Sea Arbitration”
Initiated by the Philippines is Null and Void, Beijing:Law Press 2016, pp. 1–110.
38 Chinese Society of International Law, The South China Sea Arbitration Awards: A Critical Study,
Beijing: Foreign Languages Press 2018, pp. 1–654.
39 Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines, paras.
4-29, https://www.fmprc.gov.cn/mfa_eng/wjb_663304/zzjg_663340/tyfls_665260/tfsxw_665262/
t1217147.shtml, visited on 29 May 2020; Chinese Society of International Law, The Tribunal’s
Award in the “South China Sea Arbitration” The South China Sea Arbitration Awards, Law Press
2016, pp. 79–86; Chinese Society of International Law, The South China Sea Arbitration Awards:
A Critical Study, Foreign Languages Press 2018, paras. 84–109, paras. 207–269.