China Adheres to the Position of Settling Through Negotiation the Relevant Disputes Between China and the Philippines in the South China Sea

II. Origin of the Relevant Disputes Between China and the Philippines in the South China Sea

55. The core of the relevant disputes between China and the Philippines in the South China Sea lies in the territorial issues caused by the Philippines' invasion and illegal occupation of some islands and reefs of China's Nansha Qundao. In addition, with the development of the international law of the sea, a maritime delimitation dispute also arose between the two states regarding certain sea areas of the South China Sea.

i. The Philippines' invasion and illegal occupation caused disputes with China over some islands and reefs of Nansha Qundao

56. The territory of the Philippines is defined by a series of international treaties, including the 1898 Treaty of Peace between the United States of America and the Kingdom of Spain (the Treaty of Paris), the 1900 Treaty between the United States of America and the Kingdom of Spain for Cession of Outlying Islands of the Philippines (the Treaty of Washington), and the 1930 Convention between His Majesty in Respect of the United Kingdom and the President of the United States regarding the Boundary between the State of North Borneo and the Philippine Archipelago.

57. The Philippines' territory so defined has nothing to do with China's Nanhai Zhudao.

58. In the 1950s, the Philippines attempted to take moves on China's Nansha Qundao but eventually stopped because of China's firm opposition. In May 1956, Tomás Cloma, a Filipino, organized a private expedition to some islands and reefs of Nansha Qundao and unlawfully named them "Freedomland". Afterwards, Philippine Vice President and Foreign Minister Carlos Garcia expressed support for Cloma's activities. In response, the spokesperson of the Chinese Foreign Ministry issued a stern statement on 29 May, pointing out that Nansha Qundao "has always been a part of China's territory. The People's Republic of China has indisputable sovereignty over these islands [...] and will never tolerate the infringement of its sovereignty by any country with any means and under any excuse." At the same time, China's Taiwan authorities sent troops to patrol Nansha Qundao and resumed stationing troops on Taiping Dao. Afterward, the Philippine Department of Foreign Affairs said that the government of the Philippines did not know about Cloma's activities or give him the consent before he took his moves.

59. Starting in the 1970s, the Philippines invaded and illegally occupied by force some islands and reefs of China's Nansha Qundao and raised illegal territorial claims. The Philippines invaded and illegally occupied Mahuan Dao and Feixin Dao in August and September 1970, Nanyao Dao and Zhongye Dao in April 1971, Xiyue Dao and Beizi Dao in July 1971, Shuanghuang Shazhou in March 1978 and Siling Jiao in July 1980. In June 1978, Philippine President Ferdinand Marcos signed Presidential Decree No. 1596, which designated some islands and reefs of China's Nansha Qundao and large areas of their surrounding waters as "Kalayaan Island Group" ("Kalayaan" in Tagalog means "Freedom"), set up "Municipality of Kalayaan" and illegally included them in the Philippine territory.

60. The Philippines has also enacted a series of national laws to lay its own claims of territorial sea, exclusive economic zone and continental shelf, part of which conflicted with China's maritime rights and interests in the South China Sea.

61. The Philippines has concocted many excuses to cover up its invasion and illegal occupation of some islands and reefs of China's Nansha Qundao in order to pursue its territorial pretensions. For instance, it claims that: "Kalayaan Island Group" is not part of Nansha Qundao but terra nullius; Nansha Qundao became "trust territory" after the end of the Second World War; the Philippines has occupied Nansha Qundao because of "contiguity or proximity" and out of "national security" considerations; "some islands and reefs of Nansha Qundao are located in the exclusive economic zone and continental shelf of the Philippines"; the Philippines' "effective control" over the relevant islands and reefs has become the "status quo" that cannot be changed.

ii. The Philippines' illegal claim has no historical or legal basis

62. The Philippines' territorial claim over part of Nansha Qundao is groundless from the perspectives of either history or international law.

63. First, Nansha Qundao has never been part of the Philippine territory. The territorial scope of the Philippines has already been defined by a series of international treaties. The United States, administrator of the Philippines at the relevant time, was clearly aware of these facts. On 12 August 1933, ex-Senator Isabelo de los Reyes of the United States-governed Philippines wrote a letter to Governor-General Frank Murphy in an attempt to claim that some Nansha islands formed part of the Philippine Archipelago on the ground of geographical proximity. That letter was referred to the Department of War and the Department of State. On 9 October, the United States Secretary of State replied that, "These islands [...] lie at a considerable distance outside the limits of the Philippine Islands which were acquired from Spain in 1898". In May 1935, the United States Secretary of War George Dern wrote a letter to Secretary of State Cordell Hull, seeking the views of the State Department on the "validity and propriety" of the Philippines' territorial claims over some islands of Nansha Qundao. A memorandum of the Office of Historical Adviser in the State Department, signed by S.W. Boggs, pointed out that, "There is, of course, no basis for a claim on the part of the United States, as islands constituting part of the Philippine Archipelago". On 20 August, Secretary Hull officially replied in writing to Secretary Dern, stating that, "the islands of the Philippine group which the United States acquired from Spain by the treaty of 1898, were only those within the limits described in Article III", and that, referring to the relevant Nansha islands, "It may be observed that [...] no mention has been found of Spain having exercised sovereignty over, or having laid claim to, any of these islands". All these documents prove that the Philippines' territory never includes any part of Nanhai Zhudao, a fact that has been recognized by the international community, including the United States.

64. Second, the claim that "Kalayaan Island Group" is "terra nullius" discovered by the Philippines is groundless. The Philippines claims that its nationals "discovered" the islands in 1956, and uses this as an excuse to single out some islands and reefs of China's Nansha Qundao and name them "Kalayaan Island Group". This is an attempt to create confusion over geographical names and concepts, and dismember China's Nansha Qundao. As a matter of fact, the geographical scope of Nansha Qundao is clear, and the so-called "Kalayaan Island Group" is part of China's Nansha Qundao. Nansha Qundao has long been an integral part of China's territory and is by no means "terra nullius".

65. Third, Nansha Qundao is not "trust territory" either. The Philippines claims that after the Second World War, Nansha Qundao became "trust territory", the sovereignty over which was undetermined. This claim finds no support in law or reality. The post-War trust territories were all specifically listed in relevant international treaties or the documents of the United Nations Trusteeship Council. Nansha Qundao was never included in them and was thus not trust territory at all.

66. Fourth, neither "contiguity or proximity" nor national security is a basis under international law for acquiring territory. Many countries have territories far away from their metropolitan areas, in some cases even very close to the shores of other countries. When exercising colonial rule over the Philippines, the United States had a dispute with the Netherlands regarding sovereignty over an island which is close to the Philippine Archipelago, and the United States' claim on the basis of contiguity was ruled as having no foundation in international law. Furthermore, it is just absurd to invade and occupy the territory of other countries on the ground of national security.

67. Fifth, the Philippines claims that some islands and reefs of China's Nansha Qundao are located within its exclusive economic zone and continental shelf and therefore should fall under its sovereignty or form part of its continental shelf. This is an attempt to use maritime jurisdiction provided for under UNCLOS to deny China's territorial sovereignty. This runs directly counter to the "land dominates the sea" principle, and goes against the purpose of UNCLOS, as stated in its preamble, to "establish [...] with due regard for the sovereignty of all States, a legal order for the seas and ocean". Therefore, a coastal state can only claim maritime jurisdiction under the precondition of respecting the territorial sovereignty of another state. No state can extend its maritime jurisdiction to an area under the sovereignty of another; still less can it use such jurisdiction as an excuse to deny another state's sovereignty or even to infringe upon its territory.

68. Sixth, the Philippines' so-called "effective control" on the basis of its illegal seizure is null and void. The international community does not recognize "effective control" created through occupation by force. The Philippines' "effective control" is mere occupation by naked use of force of some islands and reefs of China's Nansha Qundao. Such occupation violates the Charter of the United Nations and the basic norms governing international relations and is unequivocally prohibited by international law. This so-called "effective control" based on illegal seizure cannot change the basic fact that Nansha Qundao is China's territory. China firmly opposes any attempt to treat the seizure of some islands and reefs of China's Nansha Qundao as a so-called "fait accompli" or "status quo". China will never recognize such a thing.

iii. The development of the international law of the sea gave rise to the dispute between China and the Philippines over maritime delimitation

69. With the formulation and entering into effect of UNCLOS, the relevant disputes between China and the Philippines in the South China Sea have gradually intensified.

70. Based on the practice of the Chinese people and the Chinese government in the long course of history and the position consistently upheld by successive Chinese governments, and pursuant to China's national law and under international law, including the 1958 Declaration of the Government of the People's Republic of China on China's Territorial Sea, the 1992 Law of the People's Republic of China on the Territorial Sea and the Contiguous Zone, the 1996 Decision of the Standing Committee of the National People's Congress of the People's Republic of China on the Ratification of the United Nations Convention on the Law of the Sea, the 1998 Law of the People's Republic of China on the Exclusive Economic Zone and the Continental Shelf, and the 1982 United Nations Convention on the Law of the Sea, China has, based on Nanhai Zhudao, internal waters, territorial sea, contiguous zone, exclusive economic zone and continental shelf. In addition, China has historic rights in the South China Sea.

71. The Philippines proclaimed its internal waters, archipelagic waters, territorial sea, exclusive economic zone and continental shelf according to, among others, the Philippines' Republic Act No. 387 of 1949, Republic Act No. 3046 of 1961, Republic Act No. 5446 and Presidential Proclamation No. 370 of 1968, Presidential Decree No. 1599 of 1978, and Republic Act No. 9522 of 2009.

72. In the South China Sea, China and the Philippines are states possessing land territory with opposite coasts, the distance between which is less than 400 nautical miles. The maritime areas claimed by the two states overlap, giving rise to a dispute over maritime delimitation.

III. China and the Philippines Have Reached Consensus on Settling Their Relevant Disputes in the South China Sea

73. China firmly upholds its sovereignty over Nanhai Zhudao, resolutely opposes the Philippines' invasion and illegal occupation of China's islands and reefs, and resolutely opposes the unilateral acts taken by the Philippines on the pretext of enforcing its own claims to infringe China's rights and interests in waters under China's jurisdiction. Still, in the interest of sustaining peace and stability in the South China Sea, China has exercised great restraint, stayed committed to peacefully settling the disputes with the Philippines in the South China Sea, and made tireless efforts to this end. China has conducted consultations with the Philippines on managing maritime differences and promoting practical maritime cooperation, and the two sides have reached important consensus on settling through negotiation relevant disputes in the South China Sea and properly managing relevant disputes.

i. It is the consensus and commitment of China and the Philippines to settle through negotiation their relevant disputes in the South China Sea

74. China has dedicated itself to fostering friendly relations with all countries on the basis of the Five Principles of Peaceful Coexistence, namely, mutual respect for sovereignty and territorial integrity, mutual non-aggression, non-interference in each other's internal affairs, equality and mutual benefit, and peaceful coexistence.

75. In June 1975, China and the Philippines normalized their relations, and in the joint communiqué for that purpose, the two governments agreed to settle all disputes by peaceful means without resorting to the threat or use of force.

76. In fact, China's initiative of "pursuing joint development while shelving disputes" regarding the South China Sea issue was first addressed to the Philippines. In a June 1986 meeting with Philippine Vice President Salvador Laurel, Chinese leader Deng Xiaoping pointed out that Nansha Qundao belongs to China, and when referring to the matter of differences, stated that, "This issue can be shelved for now. Several years later, we can sit down and work out a solution that is acceptable to all in a calm manner. We shall not let this issue stand in the way of our friendly relations with the Philippines and with other countries." In April 1988, when meeting with Philippine President Corazón Aquino, Deng Xiaoping reiterated that "with regard to the issue concerning Nansha Qundao, China has the biggest say. Nansha Qundao has been part of China's territory throughout history, and no one has ever expressed objection to this for quite some time"; and "For the sake of the friendship between our two countries, we can shelve the issue for now and pursue joint development". Since then, when handling the relevant South China Sea issue and developing bilateral ties with other littoral countries around the South China Sea, China has all along acted in keeping with Deng Xiaoping's idea: "sovereignty belongs to China, disputes can be shelved, and we can pursue joint development".

77. Since the 1980s, China has put forward a series of proposals and initiatives for managing and settling through negotiation disputes with the Philippines in the South China Sea and reiterated repeatedly its sovereignty over Nansha Qundao, its position on peacefully settling the relevant disputes and its initiative of "pursuing joint development while shelving disputes". China has expressed its clear opposition to intervention by outside forces and attempts to multilateralize the South China Sea issue and emphasized that the relevant disputes should not affect bilateral relations.

78. In July 1992, the 25th ASEAN Foreign Ministers Meeting held in Manila adopted the ASEAN Declaration on the South China Sea. China expressed appreciation for relevant principles outlined in that Declaration. China stated that it has all along stood for peacefully settling through negotiation the territorial issues relating to part of Nansha Qundao and opposed the use of force, and is ready to enter into negotiation with countries concerned on implementing the principle of "pursuing joint development while shelving disputes" when conditions are ripe.

79. In August 1995, China and the Philippines issued the Joint Statement between the People's Republic of China and the Republic of the Philippines concerning Consultations on the South China Sea and on Other Areas of Cooperation in which they agreed that "[d]isputes shall be settled by the countries directly concerned" and that "a gradual and progressive process of cooperation shall be adopted with a view to eventually negotiating a settlement of the bilateral disputes." Subsequently, China and the Philippines reaffirmed their consensus on settling the South China Sea issue through bilateral negotiation and consultation in a number of bilateral documents, such as the March 1999 Joint Statement of the China-Philippines Experts Group Meeting on Confidence-Building Measures and the May 2000 Joint Statement between the Government of the People's Republic of China and the Government of the Republic of the Philippines on the Framework of Bilateral Cooperation in the Twenty-First Century.

80. In November 2002, China and the ten ASEAN Member States signed the DOC in which the parties solemnly "undertake to resolve their territorial and jurisdictional disputes by peaceful means, without resorting to the threat or use of force, through friendly consultations and negotiations by sovereign states directly concerned, in accordance with universally recognized principles of international law, including the 1982 UN Convention on the Law of the Sea".

81. Afterwards, China and the Philippines reaffirmed this solemn commitment they had made in the DOC in a number of bilateral documents, such as the September 2004 Joint Press Statement between the Government of the People's Republic of China and the Government of the Republic of the Philippines and the September 2011 Joint Statement between the People's Republic of China and the Republic of the Philippines.

82. The relevant provisions in all the aforementioned bilateral instruments and the DOC embody the following consensus and commitment between China and the Philippines on settling the relevant disputes in the South China Sea: first, the relevant disputes shall be settled between sovereign states directly concerned; second, the relevant disputes shall be peacefully settled through negotiation and consultation on the basis of equality and mutual respect; and third, sovereign states directly concerned shall "eventually negotiat[e] a settlement of the bilateral disputes" in accordance with universally recognized principles of international law, including the 1982 UNCLOS.

83. By repeatedly reaffirming negotiations as the means for settling relevant disputes, and by repeatedly emphasizing that negotiations be conducted by sovereign states directly concerned, the above-mentioned provisions obviously have produced the effect of excluding any means of third party settlement. In particular, the 1995 Joint Statement provides for "eventually negotiating a settlement of the bilateral disputes". The term "eventually" in this context clearly serves to emphasize that "negotiations" is the only means the parties have chosen for dispute settlement, to the exclusion of any other means including third party settlement procedures. The above consensus and commitment constitutes an agreement between the two states excluding third-party dispute settlement as a way to settle relevant disputes in the South China Sea between China and the Philippines. This agreement must be observed.

ii. It is the consensus of China and the Philippines to properly manage relevant disputes in the South China Sea

84. It is China's consistent position that, the relevant parties should establish and improve rules and mechanisms, and pursue practical cooperation and joint development, so as to manage disputes in the South China Sea, and to foster a good atmosphere for their final resolution.

85. Since the 1990s, China and the Philippines have reached the following consensus on managing their disputes: first, they will exercise restraint in handling relevant disputes and refrain from taking actions that may lead to an escalation; second, they will stay committed to managing disputes through bilateral consultation mechanisms; third, they commit themselves to pursuing practical maritime cooperation and joint development; and fourth, the relevant disputes should not affect the healthy growth of bilateral relations and peace and stability in the South China Sea region.

86. In the DOC, China and the Philippines also reached the following consensus: to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability; to intensify efforts, pending the peaceful settlement of territorial and jurisdictional disputes, to seek ways, in the spirit of cooperation and understanding, to build trust and confidence; and to explore or undertake cooperative activities including marine environmental protection, marine scientific research, safety of navigation and communication at sea, search and rescue operation and combating transnational crime.

87. China and the Philippines have made some progress in managing their differences and conducting practical maritime cooperation.

88. During the first China-Philippines Experts Group Meeting on Confidence-Building Measures held in March 1999, the two sides issued a joint statement, pointing out that, "the two sides agreed that the dispute should be peacefully settled through consultation in accordance with the generally-accepted principles of international law including the United Nations Convention on the Law of the Sea, [... and to] exercise self-restraint and not to take actions that might escalate the situation."

89. In the Joint Press Statement of the Third China-Philippines Experts Group Meeting on Confidence-Building Measures released in April 2001, it is stated that, "the two sides noted that the bilateral consultation mechanism to explore ways of cooperation in the South China Sea has been effective. The series of understanding and consensus reached by the two sides have played a constructive role in the maintenance of the sound development of China-Philippines relations and peace and stability of the South China Sea area."

90. In September 2004, in the presence of the leaders of China and the Philippines, China National Offshore Oil Corporation (CNOOC) and Philippine National Oil Company (PNOC) signed the Agreement for Joint Marine Seismic Undertaking in Certain Areas in the South China Sea. In March 2005, national oil companies from China, the Philippines and Vietnam signed, with the consent of both China and the Philippines, the Tripartite Agreement for Joint Marine Seismic Undertaking in the Agreement Area in the South China Sea. It was agreed that during an agreement term of three year-period, these oil companies should collect and process certain amount of 2D and/or 3D seismic lines in the agreement area covering about 143,000 square kilometers, re-process certain amount of existing 2D seismic lines, and study and assess the oil resources in the area. The 2007 Joint Statement of the People's Republic of China and the Republic of the Philippines states that, "both sides agree that the tripartite joint marine seismic undertaking in the South China Sea serves as a model for cooperation in the region. They agreed that possible next steps for cooperation among the three parties should be explored to bring collaboration to a higher level and increase the momentum of trust and confidence in the region."

91. Regrettably, due to the lack of willingness for cooperation from the Philippine side, the China-Philippines Experts Group Meeting on Confidence-Building Measures has stalled, and the China-Philippines-Vietnam tripartite marine seismic undertaking has failed to move forward.