Curtain falls on S.China Sea arbitration farce; Tribunal manipulators will be revealed


Foreign ministers of ASEAN member states and China at the ASEAN-China Ministerial Meeting in Vientiane, Laos. — VNA/VNS

https://www.youtube-nocookie.com/embed/i_J3TQKTXcc

The 49th ASEAN Foreign Ministers’ Meeting on Monday issued a joint communiqué, which didn’t breathe a word about the South China Sea arbitration, or harbor any overt criticism against China. Although the South China Sea issue was mentioned many times in the communiqué, it only gave a general overview of principles that must be stuck to. Most foreign media view the communiqué as a triumph for China’s diplomacy.

On the same day, a joint statement on how to effectively implement the Declaration on the Conduct of Parties in the South China Sea was issued.

The two statements reflect the consistent stand of ASEAN. Attempts at pressuring China through the ASEAN Foreign Ministers’ Meeting have failed.

As the first foreign ministers’ meeting after the so-called South China Sea arbitration award was issued, the US and Japan hoped to use the meeting in Laos to solicit ASEAN’s collective support for the arbitration and impose unprecedented diplomatic pressure on China. But such expectations do not correspond with the realities in East Asia.

Hype was running high among American and Japanese media that only Cambodia was standing in the way of a joint statement that incorporates the South China Sea arbitration, and Laos as the host country didn’t voice any firm opposition.

From another perspective, only the Philippines wanted a joint statement with reference to the arbitration, and Vietnam was not so persistent in its demands. Most ASEAN countries have maintained a neutral attitude. They neither want to see a division within the bloc, nor to be dragged into a conflict with China over arbitration.

Manila compromised this time, giving consent to a communiqué without mention of the arbitration. It showed flexibility compared with 2012, when the 45th ASEAN Foreign Ministers’ Meeting ended with no joint statement because the Philippines’ propositions over the South China Sea issue were firmly opposed.

It’s in the common interests of China and ASEAN to maintain peace and stability in the South China Sea. But the US and Japan are willing to see conflicts between China and the Philippines and Vietnam escalate. If the arbitration leads to overall confrontation between ASEAN and China, it will fullfil the desires of the US and Japan.

ASEAN won’t be so silly as to head toward a confrontation with China. We have carried out construction activities on islands and reefs in the South China Sea, but with our utmost efforts to avoid confrontation.

The possibility of a military solution to the South China Sea dispute has become smaller and smaller. The arbitration has brought about new risks. Instead of a clash between China and the Philippines, or China and Vietnam, there are more worries about conflicts being sparked between China and the US.

Under such conditions, it could never be ASEAN’s desire to amplify the negative influences of the arbitration case. Two weeks after the arbitration result was announced, no other countries outside the region but the US, Japan and Australia have voiced support for it. The farce is coming to an end.- Global Times.

Political manipulation behind arbitral tribunal will be revealed

https://www.youtube-nocookie.com/embed/tUR7WVsmC7k

Spotlight: Chinese FM calls for end to politicization of South China Sea issue, urges parties to return to negotiations

Chinese Foreign Minister Wang Yi said on Tuesday that the political manipulation behind the arbitral tribunal will be revealed, in response to the comments made by some foreign ministers on the South China Sea arbitration case.

Wang expounded on China’s position when attending the 6th East Asia Summit Foreign Ministers’ Meeting held in the Lao capital Vientiane.

Wang said China has not participated in the arbitration case and will not accept the so-called ruling, a position that China has made clear since day one and is supported by strong legal basis.

By adopting this position, China is safeguarding the sanctity and impartiality of the United Nations Convention on the Law of the Sea (UNCLOS), said the Chinese foreign minister.

First, the arbitration unilaterally initiated by the former Philippine government violated the principle of having the consent of concerned parties as the basis of arbitration and failed to meet the prerequisite of conducting full exchange of views beforehand, thus lacking the legal conditions to be initiated.

What the former Philippine government had done also abandoned bilateral agreements between China and the Philippines and violated Article 4 of the Declaration on Conducts of the Parties in the South China Sea (DOC) as well as the principle of estoppel prescribed in international law, according to Wang.

Second, he said, the subject matters of the arbitration, however packaged, in fact directly concern territorial sovereignty and maritime delimitation which are beyond the scope of the UNCLOS and the jurisdiction of the ad hoc tribunal. It is a typical act of overstepping the power and ultra vires as well as the abuse of dispute arbitration mechanism.

Wang said by citing a prominent legal expert from Europe that the arbitration case undoubtedly touches upon territorial sovereignty which is not governed by the UNCLOS. The tribunal’s practice of separating territorial sovereignty dispute with the status of islands and reefs is unseen in international law, which is like “putting the cart before the horse.”

Third, the ruling of the ad hoc tribunal is full of obvious mistakes, Wang said. It blatantly uses its self-invented rules to negate and deprive the lawful and legitimate territorial sovereignty, maritime rights and interests of parties concerned. In particular, it says that Taiping Dao, the largest island in the Nansha Islands with an area of 500,000 square meters, is a rock and has no relevant maritime rights.

If such a judgment can legally stand, the sea map of the world will need to be redrawn, Wang said.

Wang stressed that this ruling runs counter to the spirit of international rule of law as well as the principle and spirit of the UNCLOS.

“This arbitration is imbued with question marks and fallacies in terms of procedure, legal application, fact finding and evidence gathering,” he said.

The so-called ruling is illegal in three aspects: the initiation of the arbitration is illegal, the set-up of the tribunal is illegal, and the result of the arbitration is illegal. Therefore, China’s stance is fully legitimate which serves the purpose of upholding international equity and justice and regional peace and stability, Wang said.

The Chinese foreign minister said more and more countries have come to see the nature and danger of the arbitration case, and understand and acknowledge China’s stance to resolve disputes through direct negotiation and consultation, calling for respect to the rights of sovereign states to independently choose dispute settlement means including respecting the declaration on optional exceptions made under Article 298 of the UNCLOS.

There are also more and more legal experts around the world questioning the legality of the arbitration case and the fairness of the ruling, Wang said, noting that the illegal nature of the so-called South China Sea arbitration case and the political manipulation hidden behind the ad hoc arbitral tribunal will be further revealed. – Global Times

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Dao inhabits people’s hearts: Tribunal’s dangerous precedent in international law !


Political manipulation violates combined concept of fairness, justice, rule, trend and direction.

ON July 12, the award on the South China Sea arbitration came out. This political anti-China farce in the disguise of law, manipulated by the United States, and acted by the former Philippine Government, eventually came to an awful end.

This award caused a storm of questions and negative comments in the international community. A lot of professionals are shocked, not to speak of how ridiculous it is to define Taiping Island as a “reef”.

As Professor Tom Zwart from the Netherlands said, “In the region (East Asia), the award will be widely regarded as the fruit of a poisonous tree, and it will fail, therefore, to garner the necessary support.”

Abraham Sofaer, former legal advisor to the US State Department, also pointed out that the arbitration had brought a lot of difficulties and anxiety, which were not good for any parties.

The US attempted to smear and “isolate” China with the arbitration, but unexpectedly received little response. China’s position of non-acceptance of and non-participation in the arbitration has won more and more support.

Even the Philippine people realised that the arbitration is a total conspiracy of the US for its own agenda. This proves again the age old saying, “a just cause enjoys abundant support while an unjust cause finds little support”.

Dao, a combined concept of fairness, justice, rule, trend and direction, and derived from ancient Chinese philosophy, inhabits people’s hearts. The Dao of the present world lies in peace, development and winwin cooperation, and the Dao of solving international disputes lies in fair, lawful and peaceful solutions. On the premise of peaceful settlement, international law provides the right of every state to choose the means of dispute settlement, which should be based on consent, used in good faith and in the spirit of cooperation.

China persists unswervingly in pursuing an independent foreign policy of peace; advocates the awareness about human common destiny; and opposes the Cold War mindset and zero-sum games, and the bullying of the weak by the strong.

China will never seek hegemony or engage in expansion. With regard to territorial issues and maritime delimitation disputes, China adheres to settlement through amicable consultation and negotiation by directly concerned countries, and does not accept any means of third-party dispute settlement or any solution imposed on it.

The violation of Dao by the US lies in its “imperialist mindset” and pursuit of hegemony. After World War II, the US global strategy has always been seeking the “leadership of the world”.

In 2009, the Obama administration launched the Asia Pacific Rebalance Strategy, and took the South China Sea issue as the pivot to maintain its regional hegemony and achieve strategic containment of China.

It is obvious that during the whole process of the arbitration unilaterally initiated and pushed by the Aquino III administration, the US was deeply involved in every step. Although alleging “neutrality and non-involvement”, the US manipulated behind the scene, and tried to forge a “coalition” to hype up the issue, resulting in rise of tension in the South China Sea.

The US always regards itself as “judge of the world”, but history and reality have repeatedly shown that the US has always adopted double standards. In the eyes of the US, international law is only applicable to other countries rather than itself. It only applies the law when it is consistent with its own interest and resolutely abandons it otherwise.

For instance, while advocating “the rule of law on the sea”, it has not acceded to the United Nations Convention on the Law of the Sea (UNCLOS).

While insisting that China must accept the arbitration award, it chooses to forget the Nicaragua case in which it not only withdrew from the proceedings and refused to implement the ruling, but also revoked the declaration of accepting the compulsory jurisdiction by the International Court of Justice. While opposing militarisation in the South China Sea, it has been provocatively dispatching military aircraft and warships into the area, and even deploying aircraft carrier fleets to this region.

More and more countries have found out who is the biggest “trouble-maker” in the world. It is the US intervention that makes the world worse. Afghanistan, Iraq and Libya have all fallen into its trap and are left with mess in the region. As the new Philippine President Rodrigo Duterte frankly said, the root of the bloodshed in Iraq and other Middle Eastern countries lies in the intervention of the US.

Furthermore, just prior to the arbitration award, the UK Iraq Inquiry published its report, stating that the decision of the US and UK to start the Iraq War was based on “flawed” intelligence. Under such circumstance, who will follow such a “leader of the world”?

The violation of Dao by the former government of the Philippines lies in breaching previous commitment and causing a lot of trouble in the shelter of a superpower.

The Philippines and China had been friendly neighbours over a long history. However, in recent years, the bilateral ties were damaged by the Philippine policy of confrontation, especially the unilateral arbitration claim.

The government of Aquino III willingly acted as the pawn of the US Rebalance Strategy and took the road to confront China. It deliberately provoked the Huangyan Island (Scarborough Shoal) incident, unilaterally initiated and pushed the arbitration, and tried to hijack other Asean countries to smear China and benefit from the unlawful arbitration award. Its intention is vicious, and its action illegal.

First, although fully aware that territorial issues are not subject to UNCLOS and that maritime delimitation disputes have been excluded from the UNCLOS compulsory dispute settlement procedures by China, the Philippines deliberately packaged the disputes as mere issues concerning the interpretation or application of UNCLOS.

Second, the arbitration infringes upon China’s right to choose the procedures and means for dispute settlement. In 2006, pursuant to Article 298 of UNCLOS, China declared to exclude from the compulsory procedures disputes concerning maritime delimitation, historic bays or titles, military and law enforcement activities. There are over 30 countries that have made similar declaration.

Third, the unilateral arbitration broke the bilateral agreements reached between China and the Philippines over the years to resolve relevant disputes in the South China Sea through negotiation.

Fourth, the arbitration violated the commitment jointly made by China and Asean countries, including the Philippines, in the Declaration on the Conduct of Parties in the South China Sea (DOC) to resolve the relevant disputes through negotiations by states directly concerned.

The Aquino III administration thought itself clever, but how can it deceive the whole world? As Cambodian Prime Minister Hun Sen said, the arbitration is “the worst political collusion in the framework of international politics”, and “would bring negative impacts to Asean and peace in the region”.

Rod P. Kapunan, Philippine columnist of The Standard newspaper, pointed out that “after six years of hypocrisy and deceit, this shameless stooge (here refers to Aquino III) has brought us right into the doorstep of possible armed conflict with China all because it has chosen to pursue the US-designed policy of inciting hostility with our neighbour”.

Regarding the South China Sea situation, he wrote that “the lives of the Filipinos would be sacrificed to enforce a decision that if examined closely is a US proxy war which the Philippines would serve as cannon fodder in securing its interest in this part of the globe”.

The escalation in the South China Sea will bring enormous risks to the regional and even global security. The Philippines should recognise its mistakes and return to bilateral negotiation with China.

The violation of Dao by the arbitral tribunal lies in political manipulation, unfairness and unlawfulness. The arbitration is completely a political farce under legal pretext. The establishment of this tribunal lacks legitimacy.

The arbitrators it chose lack fairness. The tribunal lacks jurisdiction, and it evidently expanded, exceeded and abused its power.

The so-called “award” is even ridiculous. Experts pointed out that all the fees of the tribunal, including the huge reimbursement to the arbitrators, are borne by the Philippines alone. This has raised a lot of concerns and problems. People are asking if the Philippines “hired the judges”.

The composition of the tribunal is a result of political manipulation. Japan and Yanai Shunji, then president of the International Tribunal for the Law of the Sea, acted as the broker.

The composition of the tribunal is quite weird: four of the five arbitrators are from Europe, the fifth one is a permanent resident in Europe, and all of them lack basic understanding of Asian culture and the South China Sea issue.

One fact could better show the play under the table. When the tribunal was established in April 2013, the first president appointed by Yanai was Chris Pinto, a senior Sri Lankan diplomat. Since Pinto’s wife is Philippine, he especially asked advice from both parties to the dispute and was recognised by the Philippines.

However, when Pinto later hinted that the tribunal might not have jurisdiction over the case, it raised deep concern of the US, Japan and the Philippines. The latter asked Yanai to find somebody to replace Pinto for a so-called “just cause”. In May 2013, Pinto was forced to resign.

The tribunal abused power for its own interest. Many experts of international law believe that the tribunal has no jurisdiction over territorial sovereignty and maritime delimitation. Just as Sofaer said, this arbitration is related to sovereignty disputes. It shouldn’t have been started, especially when a state party has declared in writing that it does not accept compulsory procedures over such disputes as maritime delimitation according to Article 298 of UNCLOS. The tribunal’s ruling “will broadly undermine the potential utility of international adjudication”.

The tribunal disregarded the fact that the essence of the subject matter of the arbitration is the issue of territorial sovereignty and maritime delimitation.

It erroneously interprets the common choice of means of dispute settlement already made jointly by China and the Philippines, erroneously construes the legal effect of the relevant commitment in the DOC, deliberately circumvents the optional exceptions declaration made by China, selectively takes relevant islands and reefs out of the macro-geographical framework of the South China Sea Islands, and subjectively and speculatively interprets and applies UNCLOS.

The conduct of the tribunal and its award seriously contravene the general practice of international arbitration, completely deviate from the object and purpose of UNCLOS to promote peaceful settlement of disputes, substantially impair the integrity and authority of UNCLOS, gravely infringe upon China’s legitimate rights as a sovereign state and state party to UNCLOS, and are unjust and unlawful. It has set an extremely dangerous precedent in the history of international law.

The professional ethics of the arbitrators are widely criticised. All the Western arbitrators and expert witnesses played a shameful role as though they were chameleons.

They reversed their previous position as stated in published papers and even backtracked from their long-held views to make the case for the Philippines.

Arbitrator Alfred Soons had published his opinion that the status of islands was closely associated with demarcation and sovereignty issues.

However, when the tribunal ruled on jurisdiction and admissibility, he said the tribunal had the right to decide on the Philippines’ submissions concerning legal status and maritime entitlement of certain islands including Huangyan Island (Scarborough Shoal) and Meiji Reef (Mischief Reef ), which was entirely contradictory to his previous viewpoint.

Expert witness Clive Schofield also changed his views at the proceedings. On the same subject, using the same materials, he drew totally different conclusions in and out of the tribunal.

People must be wondering: how could they discard professional ethics to serve the interests of those who pay them?

Facts speak louder than words. The unilateral arbitration initiated by the Aquino III administration violates international law.

The tribunal has no jurisdiction over this case. The award of the tribunal is null and void. China’s position is justified and lawful.

It is time to put an end to the arbitration on the South China Sea. Consultation is the right way to settle disputes between states.

China will continue to work together with the Asean countries to implement the DOC comprehensively and effectively, promote the consultation on a code of conduct in the South China Sea, manage and control relevant disputes properly and explore maritime cooperation, in order to build the South China Sea into a sea of peace, friendship and cooperation.

by Huang Huikang The Star Malaysia 20 Jul 2016

The writer is a member of the International Law Commission of the United Nations and the Chinese Ambassador to Malaysia. The views expressed here are the writer’s own.

 

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South China Sea arbitration:

Who are the arbitrators?

 https://www.youtube-nocookie.com/embed/j3VsgQQJNZQ

The Xinhua news agency has accused the US government, the Philippines, the arbitration panel and Japan’s prime minister Shinzo Abe of collusion in the recently concluded South China Sea arbitration case.

Four of the five arbitrators of the temporary tribunal were appointed by Shunji Yanai, the former president of the International Tribunal for the Law of the Sea. The former Japanese diplomat’s political stance and speeches went against the principles of the independence of the international judiciary. Shunji Yanai served the Japanese Foreign Ministry for 40 years from 1961. He has been involved in controversial issues, including Japan’s 2015 security bill, and the Diaoyu Islands dispute with China. He has a close relationship with Japanese prime minister, Shinzo Abe.

The fairness of the tribunal’s operations was called into question by the personal wishes of Shunji Yanai. The Xinhua news agency commented that it was not surprising that Yanai generally chose arbitrators who were biased against China.

In addition, an American legal team provided help in drafting thousands of pages of legal documents, representing the Philippines presenting arguments to the tribunal. American lawyer Bernard Oxman, who represented the Philippines, had worked with most of the arbitrators and Yanai. He attended the third United Nations Conference on the Law of the Sea as a representative for United States government. Based on the principles of independence of the international judiciary, the impartiality of a judge can be questioned if there are any links to a party involved in a case. Despite that, Oxman was still involved.

There is no doubt the close relationship between Oxman and US government, the Philippines government, arbitrators, Yanai and Abe. These links form a complex network of special political interests. The Xinhua news agency says they took advantage of legal platform and after three years they issued their pre-arranged ruling and finished their political farce.

Telegraph.co.uk – 

The so-called award made by the South China Sea arbitral tribunal attracted wide attention.

 

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China hardens after illegal tribunal ruling on South China Sea


In ignoring the verdict on the South China Sea, Beijing is following precedents by great powers as no permanent member of the UN Security Council has ever complied with a ruling by the Arbitral Tribunal on an issue involving the Law of the Sea.

 

Arbitration award

CHINA’S resolve on its sovereign claim to most of the South China Sea appears to harden after an international tribunal ruled against this new superpower in Asia.

On Tuesday, the international arbitratry at the Hague backed the Philippines’ argument that there was no legal basis for Beijing’s maritime claims.

The tribunal dismissed China’s vast claims in the vital waters, known to have vast oil and gas deposits.

From the start, China has insisted that it will ignore the tribunal decision.

It has also warned that increasing pressure on the issue could turn the resource-rich waters into a “cradle of war”.

Three days following the tribunal’s ruling, China’s state media reported that China may build mobile nuclear power plants in the South China Sea.

“China will soon start assembling its first maritime nuclear power platform and is expected to build 20 floating nuclear power stations in the future, which will largely beef up the power and water supplies on the South China Sea islands,” reported Global Times on Friday, citing China National Nuclear Cooperation (CNNC). (http://www.globaltimes.cn/content/994578.shtml)

The state-owned Global Times added that “marine nuclear power platforms will be used” in the islands and reefs of the Spratly chain in the internationally contested sea.

And two days before the tribunal announcement, China had enhanced its military presence under the directive of President Xi Jinping.

Meanwhile, Chinese Premier Li Keqiang told visiting Japanese Prime Minister Shinzo Abe that Tokyo should stop “hyping up and interfering” in the South China Sea issue, according to the official Xinhua News Agency.

Li: Tokyo must respect China’s territorial sovereignty

https://www.youtube-nocookie.com/embed/HMP0a_ODVGU

https://youtu.be/HMP0a_ODVGU

Japan is not a state directly involved in the South China Sea issue, and thus should “exercise caution in its own words and deeds, and stop hyping up and interfering” in the issue, said Li.

Commenting on the decision of the tribunal in Hong Kong on Friday, a judge of the International Court of Justice (ICJ) said the award on the South China Sea arbitration had the effect of “pouring fuel on the flame”.

Xue Hanqin, while addressing a colloquium in Hong Kong, said: “Anyone can easily tell that this award will certainly aggregate the dispute between China and the Philippines, aggregate the current military tension between China and the US and definitely aggregate tension in the region.”

Indeed, countries in this region are keeping a close watch on the situation – paying particular attention to the actions of the United States, Japan and China.

The ruling of the tribunal – the legality and decision which has been questioned by academics from the East and West, has indeed caused an unprecedented level of tension in this part of the world since the Second World War.

This is despite the repeated assurance by China that it still prefers to resolve the disputes in the South China Sea via consultation and peaceful talks among the parties laying claims to the islands – which include Brunei, Malaysia, Vietnam and Taiwan.

To many analysts, the United States and Japan cannot turn away from the responsibility of instilling instability as both have in recent years provoked disputes with Beijing and challenged China’s sovereign claims to the South China Sea waters.

Indeed, China’s stand on not recognising the tribunal’s decision has won resounding support from commentators who know the history of the region.

China’s sovereignty over the islands and reefs in the South China Sea has been established in the course of history.

Until the 1930s, the United States had never regarded the South China Sea as part of the territory of the Philippines, according to professor of Political Science Peter Li of the University of Houston.

Li sees the tribunal’s award as “null and void”.

China’s rejection of and non-participation in the arbitration proceedings are in compliance with UNCLOS, which, adopted in the early 1980s, was not designed to settle territorial disputes.

Hence, arbitration over matters concerning the delineation of maritime boundaries is beyond the scope of the convention, Li opined.

The impartiality of the tribunal, headed by a Japanese, has also been questioned as it was biased from the start three years ago, he added.

https://www.youtube-nocookie.com/embed/yeXCM7WcFxo

https://www.youtube-nocookie.com/embed/xBt7QizIAGg

The professor blamed the award for “putting regional peace at risk” as it will encourage other parties to the dispute to seek a similar approach to buttress their claims to the South China Sea.

“A worse scenario is that countries from outside the region (the US) shall impose themselves on the region, thus making a peaceful resolution of the dispute even more remote.”

And according to The Diplomat, in ignoring the verdict on the South China Sea, Beijing is following precedents by great powers as no permanent member of the UN Security Council has ever complied with a ruling by the Tribunal on an issue involving the Law of the Sea.

Graham Allison, director of Harvard Kennedy School’s Belfer Center for Science and International Affairs, noted in his writing: “In fact, none of the five permanent members of the UN Security Council have ever accepted any international court’s ruling when (in their view) it infringed their sovereignty or national security interests. Thus, when China rejects the tribunal’s decision in this case, it will be doing just what the other great powers have repeatedly done.”

Amid all the tension, what is important is that China has issued a long white paper that essentially reiterates its aspiration to maintain peace and stability in the South China Sea. 

The United States and Britain have criticised Beijing on this issue, but they had forgotten the precedents they have set.

In the 1980s when Nicaragua sued Washington for mining its harbours, the United States argued that the ICJ did not have the authority to hear Nicaragua’s case.

When the court ruled in favour of Nicaragua and ordered the United States to pay reparations, the United States refused, and vetoed six UN Security Council resolutions ordering it to comply with the court’s ruling, according to The Diplomat.

Just last year the tribunal ruled that Britain had violated the Law of the Sea by unilaterally establishing a Marine Protected Area in the Chagos Islands. The British government disregarded the ruling, and remains in the Marine Protected Area.

In its commentary on Friday, Xinhua said the South China Sea arbitration “is just a start key for the United States having ulterior motives to agitate the South China Sea situation to reinforce its hegemony”.

“The superpower has always been trying to turn the western Pacific Ocean into its own sphere of influence, dreaming to turn the South China Sea into the Caribbean where its warships patrol at will.”

To increase its dominance in the Asia-Pacific region in the face of China’s growing economy and increasing influence, the United States has since 2009 began a rebalancing strategy to the Asia Pacific to contain China’s rise, exerts Xinhua.

The South China Sea arbitration is another plot hatched by the US government, as Alberto Encomienda, former secretary-general of Maritime and Ocean Affairs Center of the Philippine Foreign Affairs Department, had said the United States has instigated his country to initiate the arbitration.

But to the credit of the Philippines, its government under a newly elected president is adopting a softer and conciliatory line towards China as it calls for more economic cooperation with Beijing.

This floats the prospects of cutting down conflict in future.

Amid all the tension, what is important is that China has issued a long white paper that essentially reiterates its aspiration to maintain peace and stability in the South China Sea, jointly with Asean member countries.

By Ho Wah Foon The Star/Asia News Network

 

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Arbitration: More questions than answers

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Arbitration and award questionable

An award was made earlier this month over the South ChinaSea territorial dispute by The Hague-based arbitral tribunal consistingof five arbitrators.

 

China, the Philippines reached consensus on disputes

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PCA clarifies role, double standards in South China Sea arbitration profane international law


Permanent Court of Arbitration clarifies role in South China Sea case

THE HAGUE, July 16 (Xinhua) — The Permanent Court of Arbitration (PCA) said on Friday that it is not a UN organ and only provided registry services to the South China Sea arbitral tribunal.

An ad hoc tribunal, set up at the unilateral request of the former Philippine government, on Tuesday issued an ill-founded award sweepingly sided with Manila, denying China’s long-standing historic rights in the South China Sea.

Judith Levine
In an email responding to Xinhua’s request for comment on the case, Judith Levine, senior legal counsel of the PCA, said the court has served as registry in interstate disputes under Annex VII to the United Nations Convention on the Law of the Sea (UNCLOS), adding that the tribunal should determine its own procedure.

Sovereignty issues, under UNCLOS is beyond the jurisdiction of the arbitral tribunal. China has validly excluded delimitation disputes in a declaration in 2006.

The appointment of arbitrators was conducted according to UNCLOS Annex VII, she said.

Both parties of a dispute are entitled to appoint an arbitrator, she explained. In the South China Sea arbitration, which China reiterated that it would not participate in, the Philippines appointed German arbitrator Rudiger Wolfrum,

and the four other arbitrators were appointed by Japan’s Shunji Yanai, 
Japan’s Shunji Yanai

then president of the Hamburg-based International Tribunal of the Law of the Sea (ITLOS).
Yanai’s political leanings rules out the possibility of a fair judgement, as he has helped Japanese Prime Minister Shinzo Abe lift the ban on Japan’s collective self-defense right and challenge the post-WWII international order.

The South China Sea arbitral tribunal, constituted on June 21, 2013, appointed the International Bureau of the PCA to serve as registry for the proceedings.

As a registry, the PCA undertook financial management of the case, which involved collecting payment from both parties, and paying fees to arbitrator, experts, technical support, court reporters, among others.

In the South China Sea case, due to China’s firm stance of nonparticipation, the Philippines paid shares of both parties, in order for the arbitration to proceed.

According to the “Rules of Procedures” of the tribunal, the functions of the registry also included maintaining an archive of the arbitral proceedings, providing appropriate registry services as directed by the tribunal, publishing information about the arbitration and issuing press releases, and organizing hearings at the Peace Palace, the seat of the PCA.

On the PCA’s relationship to the UN, Levine confirmed that although it is housed in the same premises with the ICJ, the PCA is not a UN organ.

“The PCA is an intergovernmental organization that predates the UN and is independent of the UN,” she explained. “The PCA was established by the 1899 Convention for the Pacific Settlement of International Disputes. China became a member State of the PCA in 1904.”

The PCA has observer status at the UN, and PCA delegations have attend UN General Assembly meetings and UN multilateral treaty negotiations, she added.

There has been a confusion among the public that the award in the case was made by a “UN-backed tribunal,” or even “UN tribunal,” due to misleading reports by some media.

The International Court of Justice (ICJ), the principal judicial organ of the UN, has issued a notification on its website to clarify that it had nothing to do with the case.

According to the PCA’s 2015 annual report, it provides services for the resolution of disputes involving various combinations of states, state entities, intergovernmental organizations, and private parties.

Its International Bureau, or Secretariat, is the unit that provides registry services, ranging from secretarial support to travel arrangements.- Xinhua

Double Standards Applied in South China Sea Arbitration Profane International Law 

 

After the tribunal in The Hague announced its so-called verdict concerning the arbitration that the Philippines unilaterally filed despite China’s repeated objection, several countries including the US have been pressuring China to accept the void verdict under the banner of “respect for law”.

Their acts, against the rule of law and the basic principles of international law and relations, obstructed relevant sides to manage maritime tension and seek a peaceful settlement. Their blind eye to the basic facts also exposed the inglorious role played by these external powers in the entire political farce.

Ever since the administration of Benigno Aquino III filed the South China Sea arbitration, the US, Australia, Japan and some other countries accused China as a violator of international law and requested China carry out the so-called award.

But this tough talk only exposed their dirty strategic motives. Such tricks are not able to cover the legitimacy of China’s stances, nor alter the strong support to China from those international forces standing for justice.

It’s worth mentioning that the above countries adopted a completely different attitude when themselves were involved in issues related with the international rule of law. The sharp contrast speaks for their hypocrisy and arbitrariness.

For years, with double standards on international law, some Western countries have set a plate of bad precedents. They supported international judicial rules that they can benefit from, but trampled on those not in favor of them.

As the strongest maritime power in the world, the US, worried about a possible cripple of its marine hegemony, never ratified the United Nations Convention on the Law of the Sea (UNCLOS). While evading its obligations, it is still enjoying the rights under the UNCLOS.

The US has never been accused under UNCLOS because the Washington has never ratified the law, one article on Foreign Affairs wrote in an ironic tone.

Back in 1980s, Nicaragua charged the US with taking military and paramilitary actions in and against Nicaragua and violating the sovereignty of Nicaragua in the International Court of Justice (ICJ).

The ICJ ruled in favor of Nicaragua and awarded reparations to Nicaragua. But the US, with a tough attitude, refused to participate in the proceedings and rejected the verdict delivered by the ICJ, the principal judicial organ of the UN.

The US later blocked enforcement of the judgment by the UN Security Council and thereby prevented Nicaragua from obtaining any actual compensation.

The US argued that the Court did not have jurisdiction, with then US ambassador to the UN Jeane Kirkpatrick dismissing the Court as a semi-legal, semi-juridical, semi-political body, whose rules nations sometimes accept and sometimes don’t.

The same goes for Australia, which always wants to follow the “international police” posture. When concluding maritime rights treaties with Timor-Leste, the Australian government unilaterally rejected such articles concerning maritime delimitation and third-party dispute settlement procedure. Without any other options, Timor-Leste had to file for arbitration to overrule the validity of the treaty.

In order to stop Timor-Leste from initiating the arbitration, the Australian intelligence agency resorted to despicable actions such as searching the legal representative office of Timor-Leste in Australia, detaining documents and preventing witnesses from appearing before the tribunal.

Japan also did not wait too long before joining in the clique of violating the international law. Its whale-hunt in the Antarctica was ruled as breaching the International Convention for the Regulation of Whaling by the ICJ, which ordered Japan to stop issuing whaling permits in the South Pole.

Though talking a good talk about respecting the verdict, the Japanese government did not match its actions with words. No effective measures were taken to curb domestic whaling. Even its ally Australia could not stand it and condemned Japan for violating international law.

In sharp contrast to these Western countries, China has always staunchly supported the authority of international law. At the commemoration marking the 60th anniversary of the “Five Principles of Peaceful Co-existence”, Chinese President Xi Jinping pointed out that all countries should advance the rule of law in international relations together.

“We should urge all parties to abide by international law and well-recognized basic principles governing international relations and use widely applicable rules to tell right from wrong and pursue peace and development,” Xi said in his speech.

This not only is a solemn commitment of China to the global community in safeguarding and building the international rule of law, but also expounds that the fundamental key to build international rule of law is to tell right from wrong, stop disputes and uphold win-win collaboration by adopting widely-applicable rules, instead of encouraging hegemony in the name of the international law and stirring up conflicts to stray away the international rule of law.

The law cannot execute itself. Unlike Western countries who selectively apply international law, China always applies the spirit of the international rule of law in its diplomatic practice. So far, China has established over 23,000 bilateral agreements and joined more than 400 multilateral treaties.

Moreover, China has participated in almost all inter-governmental organizations and demarcated nearly 90 percent of land borderlines with 12 out of its 14 land neighbors through negotiation and consultation.

For China, equal treatment is the cornerstone in its diplomacy regardless of the territorial size and national strength of the other country. China will never bully any state.

Regarding the international rule of law, the US and some other countries can hardly qualify as a “teacher” to China. In addition, they should look back to their past mistakes, abandon their long-upheld hegemony, egoism, hypocrisy and double standard and implement the basic norms of the international law and international relations through practical actions. – (People’s Daily)

Related:

https://www.youtube-nocookie.com/embed/lVo-bd6Ytas

Interview with Prof. Tony Carty: China has historical rights in S. China Sea

 CCTV reporter Li Jiejun spoke with Professor Tony Carty from Tsinghua University on the South China Sea arbitration. He believesChina has historical rights in the South China Sea, and maintained thatthere are records pointing to the economic use of islands in the regionby Chinese fishermen.

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China issues white paper on SCS; Arbitral court not an UN agency, unjust and questionable judges…


China issues white paper on settling disputes with Philippines in South China Sea

China is committed to upholding int’l rule of law

The Chinese government has issued a white paper on the arbitration ruling. It contains more than 20,000 Chinese characters and says the Philippines’ territorial claim over part of the Nansha Islands, is groundless from the perspective of either history or international law.

Full Text: Chinese version;English version;French version 

BEIJING, July 13, 2016 (Xinhua) — Photo taken on July 13, 2016 shows the white paper titled “China Adheres to the Position of Settling Through Negotiation the Relevant Disputes Between China and the Philippines in the South China Sea” issued by Chinese government in Beijing, capital of China. “The Philippines’ territorial claim over part of Nansha Qundao is groundless from the perspectives of either history or international law,” said the document issued by the State Council Information Office on Wednesday. (Xinhua/Chen Yehua)

BEIJING, July 13 (Xinhua) — The Chinese government on Wednesday issued a white paper to expound on its position, which calls for settling relevant disputes between China and the Philippines in the South China Sea through negotiation.

“It is the Philippines that has created and stirred up trouble,” said Vice Foreign Minister Liu Zhenmin at a press conference held Wednesday to introduce the white paper.

“Violating bilateral consensus in recent years, the Philippines has repeatedly taken moves that complicate and intensify relevant disputes between China and the Philippines in the South China Sea,” he said.

The white paper, titled “China Adheres to the Position of Settling Through Negotiation the Relevant Disputes Between China and the Philippines in the South China Sea,” was published one day after an award was issued in arbitration unilaterally initiated by the previous Philippine government.

Describing the award as “a piece of waste paper,” Liu urged other countries not to “take the opportunity to threaten China.”

China hopes other countries can work with it to protect the peace and stability of the South China Sea and “not let the South China Sea become the origin of a war,” he said.

The vice minister also said China reserves the right to declare an Air Defense Identification Zone (ADIZ) in the South China Sea in accordance with the extent of the threat.

The white paper issued by the State Council Information Office stated that 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 (the Nansha Islands).

As the international law of the sea developed, a maritime delimitation dispute also arose between the two states regarding certain areas of the South China Sea, it added.

“The Philippines’ territorial claim over part of Nansha Qundao is groundless from the perspectives of either history or international law,” it said.

The two countries held multiple rounds of consultations on the proper management of disputes at sea and reached consensus on resolving relevant disputes through negotiation and consultation, which has been repeatedly reaffirmed in a number of bilateral documents, according to the white paper.

In 2013, the then-government of the Republic of the Philippines unilaterally initiated the South China Sea arbitration.

By doing so, the Philippines has violated its standing agreement with China to settle relevant disputes through bilateral negotiation, violated China’s right to choose means of dispute settlement of its own will as a State Party to the United Nations Convention on the Law of the Sea (UNCLOS), and abused the UNCLOS dispute settlement procedures, it said.

“The Arbitral Tribunal established at the Philippines’ unilateral request has no jurisdiction over relevant submissions, and awards rendered by it are null and void and have no binding force,” said the document.

“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,” it added.

The white paper also explained that Nanhai Zhudao (the South China Sea Islands) are China’s inherent territory, saying the activities of the Chinese people in the South China Sea date back more than 2,000 years.

China is the first to have discovered, named, explored and exploited Nanhai Zhudao and relevant waters, and the first to have continuously, peacefully and effectively exercised sovereignty and jurisdiction over them.

“China’s sovereignty over Nanhai Zhudao and relevant rights and interests in the South China Sea have been established in the long course of history, and are solidly grounded in history and law,” it said.

China abides by the purposes and principles of the Charter of the United Nations and is committed to upholding and promoting international rule of law. It respects and acts in accordance with international law, the white paper said.

While firmly safeguarding its territorial sovereignty and maritime rights and interests, China adheres to the position of settling disputes through negotiation and consultation and managing differences through rules and mechanisms, it added.

“China endeavors to achieve win-win outcomes through mutually beneficial cooperation, and is committed to making the South China Sea a sea of peace, cooperation and friendship,” it said.

In the white paper, China urges countries outside the region to respect the efforts by countries in the region and to play a constructive role in maintaining peace and stability in the South China Sea.

During the press conference, Liu reiterated that settling relevant disputes between China and the Philippines in the South China Sea through negotiation is the theme of Wednesday’s white paper, as well as the policy of the Chinese government.

“We hope to work with countries surrounding the South China Sea, including ASEAN members, abide by the Declaration on the Conduct of Parties in the South China Sea (DOC), and maintain peace and stability as well as the freedom of navigation and overflight in the South China Sea,” Liu said.

Liu noted that this policy has not changed and will not change. He called on the Philippines to return to the track of negotiation, saying it is the only solution to resolve disputes. – Xinhua

China issues white paper on settling disputes with the Philippines

Video:  https://www.youtube-nocookie.com/embed/GmDJNOpizZ0

Manila wants to https://youtu.be/Cvt4xjyWH7Yentrench illegal occupation of islands and reefs

Beijing: The Philippines has repeatedly taken moves that have complicated the maritime disputes in an attempt to “entrench its illegal occupation of some islands and reefs” of the South China Sea, said a whitepaper issued by China.

The whitepaper, released yesterday by China’s State Council Information Office, accused the Philippines of “having increasingly intensified its infringement of China’s maritime and interests”.

“The Philippines also has territorial pretensions on China’s Huangyan Dao and attempted to occupy it illegally,” said the whitepaper, which has elaborated the current situation and China’s policy on the South China Sea issue.

The five-chapter whitepaper was released after the Arbitral Tribunal under the United Nations Convention on the Law of the Sea (Unclos) in The Hague, announced on Tuesday that China has no “historic title” over the South China Sea.

The Philippines’ unilateral initiation of arbitration is “an act of bad faith”, said the whitepaper.

China maintains that peace and stability in the South China Sea should be jointly upheld by China and Asean member states, said the whitepaper.

China’s Foreign Ministry said in a statement released on Tuesday that the ruling “is null and void and has no binding force”.

Beijing issued two statements immediately after the arbitration ruling was announced. Noting that Chinese activities in the South China Sea date back more than 2,000 years, one statement pointed out that China is the first to have disco­vered, named, explored and exploited the South China Sea Islands and surrounding waters.

President Xi Jinping said on Tuesday that China is committed to resolving disputes through direct negotiations, but its national sove­reignty and maritime interests will not be influenced under any circumstances by the South China Sea ruling.

The South China Sea Islands have been China’s territory since ancient times, and China refuses to accept any claims or activities based on the arbitral ruling, Xi said while meeting in Beijing with European Council president Donald Tusk and European Commission president Jean-Claude Juncker.

Australian Foreign Minister Julie Bishop said that China must accept a verdict declaring its South China Sea claims are invalid that the go­vernment and needs to halt its artificial island building in the disputed waters.

She added that Beijing risked re­putational harm if it ignored the ruling.

“We call on both the Philippines and China to respect the ruling, to abide by it. It is final and legally binding on both of them,” Bishop told national broadcaster ABC.

“This treaty, the Law of the Sea, codifies pre-existing international custom. It’s a foundation to maritime trade and commerce globally, and so to ignore it would be a se­­rious international transgression.

“There would be strong reputational costs. China seeks to be a regional and global leader and requires friendly relations with its neighbours. That’s crucial to its rise.”

China warned other countries yesterday against threatening its security in the South China Sea.

Vice-Foreign Minister Liu Zhenmin said while introducing the policy paper that Beijing could declare an air defence identification zone over the waters if it felt threatened, a move that would sharply escalate tensions.

But Beijing also extended an olive branch to the new Philippine go­vernment, saying the South-East Asian nation would benefit from cooperating with China. — China Daily/Asia News Network/Agencies

South China Sea ruling angers Republic of China, Taiwan

Video: https://www.youtube-nocookie.com/embed/Cvt4xjyWH7Y

TAIPEI: President Tsai Ing-wen vows to defend Taiwan’s sovereignty after the ruling from The Hague.

Tsai boarded a South China Sea-bound warship and addressed its crew while touring a naval base yesterday morning, less than a day after a controversial international ruling on the area.

“This vessel represents the Republic of China and the uniform that you are wearing represents what Taiwanese citizens have entrusted to you,” Tsai told crew members on the deck of the Kang Ding-class frigate, which departed on the routine patrol mission soon afterwards.

In addition, Tsai said, the patrol represents Taiwanese citizens’ determination to safeguard the country’s interests.

The rare presidential tour of a warship came after an arbitral tribunal in The Hague on Tuesday deemed South China Sea formations that are key to Chinese territorial claims to be rocks, rather than islands.

While Taiwan was not a party to the case, the ruling is problematic as it included Taiping Island (also known as Itu Aba) and other locations claimed by the government.

Tsai noted that the routine patrol was being launched a day ahead of schedule and said that its significance was unlike that of any previous mission, saying the situation in the South China Sea had changed on Tuesday.

“We have always sought to see the disputes in the South China Sea be settled peacefully through multilateral negotiations,” she said.

“We are also willing, through negotiations conducted on the basis of equality, to work with all states concerned to advance peace and stability in the South China Sea.” — The China Post/Asia News Network

China’s Response to the South China Sea Arbitration Ruling

Center for Strategic & International Studies

Video: https://www.youtube-nocookie.com/embed/vtvRkyjL4wQ

Arbitral court not a UN agency

Arbitration tribunal not linked to UN

 Arbitral Tribunal on South China Sea Disputes not Primary Judicial Branch of UN: Former ICJ Judge

Video:  https://www.youtube-nocookie.com/embed/L1codx6AsR4

Earlier we spoke to Professor Zhu Feng, executive director of the China Center for Collaborative Studies of the South China Sea at
Nanjing University. He explained more about the legitimacy of the tribunal in the Hague to issue the award in the South China Sea case.

The United Nations said on Wednesday it has nothing to do with the Permanent Court of Arbitration, which set up a tribunal that handled the South China Sea arbitration case the Philippines filed unilaterally in 2013.

In a post on its Sina Weibo micro blog, the UN said the PCA is a “tenant” of the Peace Palace in The Hague, “but has nothing to do with the UN”.

The UN said the International Court of Justice, its principal judicial organ set up according to the Charter of the UN, is also located in the Peace Palace.

The construction of the palace was managed by the Carnegie Foundation, which is still the building’s owner and manager, according to the Peace Palace website.

The UN said it makes an annual donation to the foundation for using the Peace Palace.

When asked about the Arbitral Tribunal’s case’s ruling on Tuesday, Stephane Dujarric, spokesman for UN Secretary-General Ban Ki-moon said on Tuesday “The UN doesn’t have a position on the legal and procedural merits” of the South China Sea arbitration case.

In response, Foreign Ministry spokesman Lu Kang said China will, as always, observe the goals and principles set up by the Charter of the UN, and solve maritime disputes peacefully by having talks with countries directly involved, “on the basis of firmly guarding China’s territorial sovereignty and maritime interests”.

Lu said: “China is a responsible member of the international community. It’s an important advocate and loyal implementer of the UN’s cause to push forward the international rule of law.”

Li Jinming, a professor of international maritime law at Xiamen University, pointed out that the use of terms such “UN tribunal” or “UN-backed tribunal”-frequently reported by Western media-is incorrect, as they confuse the PCA with the UN’s ICJ.

Wang Hanling, a maritime law researcher at the Chinese Academy of Social Sciences, said some countries and news media are “deliberately” confusing the tribunal with the ICJ.

China questions neutrality of judges

PETALING JAYA: China has questioned the neutrality and appointment of judges of an arbitral tribunal in The Hague which ruled in favour of the Philippines over their Spratly Islands dispute.

Selection Dispute: China is crying foul over appointments made by Shunji Yanai.

China Foreign vice-minister Liu Zhenmin questioned the “procedural justice” of the appointment and the operation of the tribunal, South China Morning Post reported.

The tribunal was formed after the Philippines filed a case with the International Tribunal on the Law of the Sea (ITCLOS) in 2013 after a stand-off with China at the Scarborough Shoal the previous year.

Of the five judges, one was selected by the Philippines and the rest by Shunji Yanai (pic), the then president of ITCLOS, which was established under the United Nations Convention on the Law of the Sea. This was reportedly due to China’s refusal to take part or recognise the tribunal.

Yanai was not among the panel of arbitrators.

“Leaving aside the obvious violation of procedural justice, we can hardly make a better explanation of judge Yanai’s motivation and purpose other than that he did it on purpose,” Liu said.

Born in Tokyo on Jan 15, 1937, Yanai read law at the University of Tokyo.

He served in the foreign ministry and was Japan’s ambassador to Washington.

He was also chairman of a panel which advised Japan’s government to revise its constitution to allow military action overseas.

The arbitral tribunal on Tuesday ruled that China had violated the Philippines’ sovereign rights in its Exclusive Economic Zone through its large-scale activities in the South China Sea.

The tribunal arbitrators included Thomas A. Mensah of Ghana, Jean-Pierre Cot of France, Stanislaw Pawlak of Poland, Prof Alfred H.A. Soons from Holland and Rüdiger Wolfrum from Germany. – By Wang Qingyun (China Daily)

Who is Shunji Yanai?

Fire has been focused on the person who picked the arbitrators – Japanese judge Shunji Yanai, who has been branded a “rightist” and “unfriendly to China”.

Foreign Vice-minister Liu Zhenmin questioned the “procedural justice” of the appointment

China has refused to take part in the proceedings, and in its absence, four of the five arbitrators were appointed by Yanai, who at the time the case was filed in 2013 was president of the International Tribunal for the Law of the Sea (ITLOS), established under the UN Convention on the Law of the Sea. The other one was named by the Philippines.

Yanai should have avoided involvement given the territorial and maritime disputes between China and Japan in the East China Sea, and Tokyo’s attempts to involve itself in the South China Sea issue.

Yanai has long been a figure of scorn among nationalist Chinese. A commentary by Xinhua described Yanai, a former senior Japanese foreign ministry official who also served as the country’s ambassador to Washington, as a “typical rightist, hawkish figure”.

In 2007, during Shinzo Abe’s first term as Japanese prime minister, Yanai served as chairman of a panel set up to advise Abe on his plan to revise the constitution to allow military action overseas. “South Korea also expressed its concerns over Yanai’s presidency of ITLOS as it also has territorial disputes with Japan,” Xinhua said.

Soon after the appointment of the tribunal, Yanai told Japanese broadcaster NHK that the islands of Japan were under enemy threat, according to a research report by the Chinese Initiative on International Law, a Hong Kong and Hague-registered NGO whose members are legal professionals and academics.

Although Yanai did not explicitly name the “enemy”, such a statement was clear enough for China to raise concerns over his impartiality in the case, the report said.

In his article in Qiushi, Liu also cast doubt on the make-up of the tribunal, saying none of the five judges – one African and four Europeans – had knowledge of the history and international order of ancient East Asia.

But Yanai’s involvement could have been avoided. If China had decided to take part in the proceedings, it could have named one of the tribunal’s arbitrators and jointly appointed three others in agreement with the Philippines.

Blustering US a paper tiger in S.China Sea

After the illegally organized arbitration tribunal issued the award in the South China Sea arbitration Tuesday, the US voiced the strongest support for it. Spokespersons from both the US Department of State and the White House successively claimed that the award was legally binding. More politicians and congressmen from the House and Senate have also made fiercer remarks, demanding regular challenges to China’s excessive maritime claims through naval and air patrols. Japan’s stance is precisely the same as that of the US, as if they have discussed their lines.

On the contrary, the Philippines’ attitude is relatively mild. It described the award as a “milestone decision” and called for restraint. An old Chinese saying goes “The emperor doesn’t worry but his eunuch does,” meaning the outsider is more anxious than the player. In this case, Washington and Tokyo are the worrying eunuchs. But so far, there is no US rhetoric demanding the White House and Pentagon bludgeon China to suspend construction activities on some islands and reefs in the South China Sea. The calls for the use of force have only been heard when the US clamored to safeguard the “freedom of navigation” in the South China Sea, which mirrors that the US hasn’t made the determination to use the arbitration for a showdown with China in the waters.

It should be noticed that the arbitration tribunal is not a permanent court for arbitration, but a temporary institution for the South China Sea case established against the spirit of international law. It also has nothing to do with the UN. Many Chinese scholars believe that after the final award, the issue will gradually cool down. If there are no big moves from Manila, Washington and Tokyo, the case will literally become nothing but a piece of paper.

The new Philippine government has more than once showed its hope of resolving the disputes with China through peaceful negotiations. In fact, it has no strength to take risky measures. The US and Japan might want to encourage Manila to take a tougher stance against Beijing, yet Philippine President Rodrigo Duterte is not necessarily willing to be their pawn.

It seems that the US will have to go it alone if it wants to escalate tensions in the South China Sea. Japan wants to step in, but Japanese Prime Minister Shinzo Abe does not have the nerve.

It is possible that the White House might conduct more proactive actions more frequently under the name of freedom of navigation. It might try to sail its warships to get increasingly closer, or even exercises within 12 nautical miles of the islands claimed and constructed by China.

China will never indulge the US military to do so. The People’s Liberation Army should enhance its military deployment in the waters of the Nansha Islands and be fully prepared to counterattack if the US makes further provocations. Some say that the US is taking China’s response over the arbitration award as a touchstone of Beijing’s willingness to follow Washington’s instruction to abide by international rules. For China, however, whether the US refrains from clashes and hostility in the waters will tell whether it respects China genuinely. We do not wish for any direct confrontation or friction between the military powers from the two countries. But if Washington insists on doing so, we will never flinch.- Global Times.

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The South China Sea arbitration unilaterally submitted by the Philippines is a political farce under[Read it]

 South China Sea arbitration tribunal for being political tool

The award on the South China Sea dispute has proven that the arbitration tribunal has degenerated in[Read it]

Arbitration award more shameless than worst prediction

The Arbitral Tribunal in The Hague announced its award over the South China Sea disputes on Tuesday, with the final verdict
more radical and shameless than many people had ever expected. All Chinese people are outraged by this illegal verdict and the world’s peace-loving public is astonished by the biased decision that may escalate regional tensions.

Stay sober-minded in face of manipulated ruling

The arbitral tribunal’s award on Tuesday, which tries to deny China’s
historic claims in the South China Sea and wipe out its rights to
resources there, marked an end to the farce disguised as law.

 

Inherently biased and unjust ‘piece of paper’

Just as anticipated, the South China Sea arbitral tribunal in The
Hague delivered an outrageously one-sided ruling in the case initiated
by the Philippines.

China’s reaction to arbitration depends on provocation


The award of the South China Sea arbitration will be issued at 5 pm Beijing time Tuesday. The US and Japan have claimed that relevant countries, including China, should comply with the arbitration result. They stand in sharp confrontation with China, which has announced that the award would be “nothing but a piece of paper.” Whether the arbitration will lead to a severe geopolitical crisis has come under the global spotlight.

The Western media is analyzing how China will respond to the award. Bloomberg posited three scenarios from Beijing, from benign to moderately aggressive or aggressive. It considers that China establishing an South China Sea Air Defense Identification Zone (ADIZ) would be moderately aggressive and towing away the Philippine warship grounded at Ren’ai Reef and construction on Huangyan Island as aggressive.

We believe the Chinese government must have made a series of contingency plans to deal with subsequent actions. What actions China may take on Huangyan and Ren’ai, and whether China will announce a South China Sea ADIZ depends on the reactions of the Philippines to the arbitration result and the degree of US and Japanese provocations.

So far, none of the concerned parties want military confrontation. But all are ratcheting up military preparations. The South China Sea has been clouded by unprecedented tensions. It’s uncertain where the situation will head to.

Chinese society pays close attention to the South China Sea situation. After the the post-arbitration wrestling begins, the most important thing for China is to show the outside world the solidarity of its society. For one thing, Chinese society has full confidence in the country’s diplomatic and maritime strength; for another, no matter what price China has to pay for the wrangling, all the Chinese will squarely accept it.

The Chinese people and government share the same interests and responsibilities. We should not only safeguard territorial sovereignty, but also make the utmost efforts to maintain peace in China’s periphery, prolonging China’s strategic opportunities for China’s rise.

The South China Sea is a big arena. China will devote its varied resources there. China in the past was weak. It could only express determinations through demonstrations or a few activists visiting its own islands in the South China Sea. But now it has multiple means at its disposal. It has become a formidable competitor that deserves respect. No power in the world could split a united China. As long as we stick together, provocateurs are doomed to fail.

Source:Global Times

Related:

https://player.cntv.cn/standard/cntvOutSidePlayer.swf

China calls for dialogues to resolve disagreement – CCTV News – CCTV.com English
http://english.cctv.com/2016/07/12/VIDEjonBZ4jsADHvtfqTLiBu160712.shtml

http://t.cn/R5DT1ML

 

Unlawful arbitration cannot negate China’s sovereignty over South China Sea: People’s Daily

The arbitration case is actually a trap set by the US and the Philippines in which the arbitral tribunal has played the role of an accomplice.

  

South China Sea arbitration invalid, law experts say

The tribunal has explained the case in an irresponsible way and set a bad precedent, according to experts and scholars from around the world.
Washington’s outsider position undercuts its message as it urges China to respect global maritime no[Read it]
Quotable quotes on S. China Sea arbitration: tribunal’s arbitration is unlawful

Western media have hyped up the South China Sea issue for a long time, with reports full of prejudice and distortion. They have purposely created rumors, smeared China and deliberately
overlooked voices of justice.

More countries voice support for China’s stance

 

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不合法的裁决不过废纸一张, Illegal ruling but a waste paper


Video: Dialogue 07/10/2016 Differing views on South China Sea

China enhances maritime law enforcement

China established Sansha City four years ago to strengthen its maritime law enforcement.

Video:

Chinese navy conducted annual combat drill near Hainan Island & Xisha Islands in #SouthChinaSea

Over 100 vessels and dozens of fighter jets participated in the annual combat drill held on July 8 in South China Sea.

浩渺南海,水天相接。本是商舟渔船自在穿行的地方,近来却波诡云谲颇不寻常。

7月12日,所谓南海仲裁案结果即将出炉。围绕这毫无合法性可言的一纸裁决,一些人筹谋算计、排兵布阵,企图用它来强化对中国的舆论攻势,将莫须有的罪名强加给中国;一些人颠倒黑白、借题发挥,期望以此抹黑中国的形象,把“不守法”的帽子扣向真正的受害者。

种种急不可耐的喧哗与躁动,无一例外都打出了国际法的旗号,南海问题的真相却被有意忽略了——中菲南海争议究竟源于何处?菲律宾南海仲裁案实质为何?仲裁案所激起的种种波澜,又将给南海的和平稳定带来何种影响?

对于这些问题,7月5日在华盛顿举办的“中美智库对话会”,提供了一个视角——即使是一些来自美国的专家也认为,“中国在南海的权益是历史上形成的”“欧洲和其他国家的知名法律专家都表示,南海仲裁案整个过程都是非法的,菲律宾单方提起仲裁,违反了国际法”。

看来,有关南海仲裁案并非难以搞清。拨开一些人以国际法为名蓄意在南海上空制造的迷雾,还原真相,对于中国而言,是维护国家领土主权的神圣使命;对于世界来说,是主持国际公理正义的必然要求。

(一)

一段时间以来,西方舆论连篇累牍渲染南海问题,然而对于南海问题特别是中菲南海争议的历史经纬、事实真相,自诩“主持公道”的西方舆论却“选择性回避”了。

南海诸岛究竟属谁?历史早就给出了明确答案。南海诸岛自古以来属于中国,历代中国政府通过行政设治、海军巡航、生产经营、海难救助等方式持续对南海诸岛及相关海域进行管辖。二战期间,日本在发动全面侵华战争后,侵占了中国南海诸岛。二战结束后,中国根据《开罗宣言》和《波茨坦公告》所作出的明确规定,收复南海诸岛,在岛上派兵驻守并建立各类军事、民事设施,从法律和事实上恢复对南海诸岛行使主权。

在二战结束后相当长一段时间内,美国通过外交询问、申请测量、通报航行飞越计划等方式,承认中国对南沙群岛的主权。中国还曾在南沙群岛有关岛礁上接待过美国军事人员。同期美国出版的地图和书籍等,如1961年版《哥伦比亚利平科特世界地名辞典》、1963年版《威尔德麦克各国百科全书》、1971年版《世界各国区划百科全书》,均确认中国对南海诸岛的主权。

可以说,中国在南海的主权和相关权益,二战结束后数十年没有任何国家提出异议。因为南沙群岛回归中国,是战后国际秩序和相关领土安排的一部分,受到《联合国宪章》等国际法保护;否认中国对南沙群岛的主权,就是对战后国际秩序的否定,就是对国际法的公然违背。

对于南海诸岛属于中国这一点,菲律宾同样心知肚明。菲律宾固有领土范围是由1898年《美西巴黎和平协议》、1900年《美西关于菲律宾外围岛屿割让的条约》、1930年《关于划定英属北婆罗洲与美属菲律宾之间的边界条约》明确规定的。南沙群岛和黄岩岛根本不在上述条约规定的菲律宾版图内。

但自上世纪60年代末南海地区发现丰富的油气资源后,这片原本安宁的水域频起波澜。在巨大资源利益的诱惑下,菲律宾等国开始非法侵占和蚕食属于中国的南沙岛礁,成为南海问题产生的根源。更有甚者,菲律宾等国还以南沙群岛位于自其本国海岸起200海里范围内为由,企图以海洋管辖权主张来否定中国对南沙群岛的主权。

显而易见,在南海问题上,中国绝不是加害者,而是受害者。如果真的遵从法律,应该谴责的是菲律宾等国公然违背国际法和《联合国宪章》的行径,应该禁止的是一切非法侵犯他国领土主权的行为。

作为南海最大沿岸国,中国从维护南海地区和平与稳定的大局出发,在南海问题产生后的几十年里始终保持了极大克制,从未主动挑起争议,也没有采取任何使争议复杂化、扩大化的行动。中国最先提出并始终坚持“搁置争议,共同开发”,坚持通过谈判协商和平解决争议;按照2002年《南海各方行为宣言》所确定的原则,在平等和相互尊重的基础上,探讨与南海声索国之间建立信任的途径;根据1982年《联合国海洋法公约》在内的国际法原则,切实保障在南海的航行及飞越自由。

在过去的几十年里,南海局势总体保持稳定,有关争议得到妥善管控,东南亚地区实现高速发展,这一地区成为世界上和平、稳定和繁荣之地。这自然得益于中国与东盟相关国家的共同努力,但不可否认的是,作为综合国力较强的一方,中国的克制是南海得以保持和平稳定、繁荣发展的最重要原因。中国政府有权利也有能力收复失地,但是中国并没有这样做,目的就是为了南海的和平稳定,以及沿岸各国人民的共同福祉。

遗憾的是,树欲静而风不止。2012年4月10日,菲律宾蓄意挑起“黄岩岛事件”。2013年1月,菲律宾阿基诺三世政府置昔日谈判协商解决南海争议的承诺于不顾,单方面提起有关南海争议的仲裁案。

纵观南海问题演进脉络,2009年以前,虽然相关国家间存在摩擦,但矛盾却总体保持可控。可是从2009年起,南海问题开始步步升级。

为何2009年成为中菲南海争议重要分界线?为何菲律宾阿基诺三世政府会在南海问题上选择一系列政治赌博?

(二)

审视菲律宾在南海问题上逐步走向“活跃”的整个过程,不得不说美国的“战略转变”提供了最有解释力的视角。

2009年1月,奥巴马政府就职,美国外交政策出现方向性调整,在“重返亚太”的战略布局下,南海问题迅速成为美国维护地区霸权地位、对中国进行战略牵制的重要抓手。

2010年7月,时任美国国务卿希拉里·克林顿在东盟地区论坛上宣布美国在南海地区“拥有国家利益”。观察人士指出,此举标志着美国对南海问题开始走向事实上的“选边站”和“引导式”路径,克林顿本人更是在事后回忆称,“这是精心选择的措辞”。此次会议被美方视为“检视美国在亚洲领导地位以及反击中国扩张的临界点”。

正如美国卡托研究所国防外交政策研究室副主任卡本特所言,美国想要通过干预中国与邻国的南海争议来达到制衡中国的目的,“最具挑衅的做法是奥巴马政府支持菲律宾及其对南海争议岛礁的声索”。

大量新闻报道显示,菲律宾正式提起南海仲裁案之后,美国的“深度参与”几乎无处不在。美国律师出任菲方法律顾问,全面帮助菲方向仲裁庭提交总计12册、长达3000页的答复书以回答有关菲方诉求和依据之问题,并一手代理了第一轮口头辩论的文件起草和庭辩。此外,美国多次公开发声,力挺菲律宾非法主张。2014年3月,美菲在华盛顿发表包括所谓以仲裁解决南海国际争端等内容的联合声明;同年4月,奥巴马在与菲律宾总统阿基诺三世会谈时再次对菲律宾诉诸国际仲裁表达了公开支持。

人们看到,美国借南海问题无端抹黑中国国际形象,无所不用其极。近年来,国务卿、国防部长、国会议员等各色美国高官在东盟地区论坛、东亚峰会、香格里拉对话会、亚太经合组织会议、七国集团峰会等各种场合,热炒南海问题,试图把“规则破坏者”“现状打破者”“军事扩张者”的帽子强加于中国头上。

人们看到,美国以所谓“航行自由”为借口,以种种手段炫耀武力,实质上推动了南海军事化。美国航空母舰、战略轰炸机多次闯入南海,美国导弹驱逐舰不断抵近中国南海岛礁,美国与盟国在南海的军事演习更是接二连三。美国还敦促东盟国家在南海地区进行联合海上巡逻,支持日本在南海地区进行海上巡逻。

人们看到,美国拉帮结派,迫切希望把南海问题引向多边化、国际化,妄图给中国施加所谓外交压力。美国极力推动在各种地区及全球性多边组织框架下讨论南海问题,企图使东盟在南海问题上统一口径,鼓动日本、澳大利亚、印度、欧盟等与南海问题无关的域外国家和地区关注南海问题。

美国有识之士对于华盛顿在南海问题上制造对抗之举深表忧虑。知名战略学家布热津斯基就曾发出警告,美国在南海必须非常小心,南海问题不应成为美中关系的中心问题。然而,在霸权本性驱使下,美国在南海问题上制造紧张局势、破坏和平稳定的冒险之举依然愈演愈烈。

(三)

事实清楚地表明,菲律宾南海仲裁案完全是一个由美国鼓动操纵、菲律宾挑头、仲裁庭客观上予以配合的针对中国的一个“局”。

这个“局”其实不难看穿,自仲裁闹剧开始后,国际社会“不平则鸣”的正义之声从未停歇。迄今,已有近70个国家和地区组织明确表示支持中方在仲裁案上的立场,其中既有东盟国家,也有域外国家,还有阿拉伯国家联盟、上海合作组织等区域组织。即使在西方国家,也有很多国际法专家从专业角度发表严肃、公正的评论,表达对中方法理主张的认同,表明对该案的批评和质疑立场。

为什么中国立场的支持者那么多,越来越多?归根结底,是因为中方不参与、不接受立场有着充分的法理依据,而菲律宾单方面提起南海仲裁案,仲裁庭违法扩权、滥权,才是在真正破坏国际法。

首先,禁止反言是国际法治的一条基本原则,但菲律宾阿基诺三世政府却置自身昔日承诺于不顾,单方面强行提起仲裁,侵犯了中国按照《联合国海洋法公约》规定享有的自主选择争端解决方式的权利。正如联合国国际法委员会前主席、联合国国际法院特别法官布朗利所言:“一般国际法上不存在解决争端的义务,以正式法律程序寻求解决的程序取决于当事各方的同意。”争端提交国际仲裁,通常都需经当事国达成合意,尊重当事方意愿才是体现“各国主权平等的一种必然结果”。如今,仲裁庭擅自扩大管辖权限、漠视一国之主权,哪里还有“法的精神”?

其次,菲方不顾基本历史常识,妄称中国人历史上在南海没什么活动和存在,从未拥有对南海诸岛的主权。然而,中国渔民在南沙水域捕鱼作业,已成为南沙群岛主人的历史事实,有多个版本的《更路簿》可以证明;19世纪以来的外国文献,也明确记载了只有中国渔民在岛上生产生活的历史事实。法律的基点本就是“以事实为依据”,如今,昭昭青史仍在,凿凿证据如山,菲方却敢如此颠倒黑白篡改事实,对南海岛礁的有关论述缺失最起码的可信度。这样一个“并不构成争端”的无理诉求,竟然被仲裁庭接受,哪里还有“法的权威”?

再有,仲裁庭不顾中方一贯坚持将南沙群岛视为整体的立场,玩弄“切割”伎俩,歧视性地把中国驻守的南沙有关岛礁从南海诸岛的宏观地理背景中剥离出来。对菲律宾等其他国家非法侵占的岛礁,仲裁庭却只字不提,还将有关领土主权问题包装为所谓的岛礁法律地位问题。如此偷梁换柱、翻云覆雨,哪里还有“法的公信”?

南海仲裁案是否具有合法性和正当性?联合国国际法委员会前主席拉奥·佩马拉朱的判断一针见血:中菲南海争端的实质是关于主权和海域划界,而领土主权问题不属于《联合国海洋法公约》调整的范围,划界问题也可据中国政府声明而排除强制仲裁程序,此案仲裁庭对主权和海域划界问题都没有管辖权。菲律宾诉求的实质是领土问题,因此不属于《联合国海洋法公约》调整的范围。

然而,仲裁庭擅自扩大解释其自身管辖权限。对于领土和海洋划界问题,仲裁庭罔顾中菲早已选择谈判协商作为解决相关争议唯一方式这一前提,罔顾中国早已于2006年根据《联合国海洋法公约》将海洋划界争议排除适用强制争端解决程序这一事实,恶意解读此前中菲对争端解决方式的共同选择,轻易否定国与国之间达成的一致意见,严重侵犯中国作为主权国家和《联合国海洋法公约》缔约国享有的自主权利。其实质,不过是为个别国家滥用仲裁程序制造国际舆论实现政治目的提供配合。

培根在《论司法》中写道,“一次不公的判决比多次不平的举动为祸犹烈。因为这些不平的举动不过弄脏了水流,而不公的判决则把水源败坏了”。菲律宾及仲裁庭滥用强制仲裁程序,让《联合国海洋法公约》失去严肃性,其对《联合国海洋法公约》的破坏性、对国际法治秩序的冲击,不容低估。

事实上,很多西方专业法律人士都对强制仲裁程序被滥用表示担忧和关切。如果今后别国都效仿菲律宾的恶劣先例,只要将领土和海洋划界问题包装成《联合国海洋法公约》解释和适用问题即可提交仲裁,不仅会让30多个缔约国所作排除性声明成为一纸空文,也将伤害《联合国海洋法公约》争端解决机制的信誉,破坏《联合国海洋法公约》建立的国际海洋秩序,对现行国际秩序构成重大威胁。

正如英国牛津大学国际公法副教授安东尼奥斯·察纳科普洛斯、英国外交部前法律顾问克里斯·沃默斯利指出,如果仲裁庭允许菲律宾背弃其在《南海各方行为宣言》中的承诺继续推进强制仲裁,这种处理方式或造成“恶法”,会对国际关系的整体稳定造成潜在破坏。

从这个意义上来看,中国为捍卫国际法做针锋相对的斗争,不仅是在捍卫自己的领土主权,更是在切实捍卫国际海洋秩序、维护世界长治久安。

(四)

菲律宾南海仲裁案如此公然违背国际法,为何向来以“国际法官”自居的美国却在装糊涂?美国著名律师布鲁斯·费恩直言,美国的南海政策体现了其“危险的帝国思维”。

这种为所欲为的“帝国思维”,就是霸权主义。美国比任何人都喜欢把国际法挂在嘴边,但历史和现实一再表明,美国对待国际法,总是对人不对己,且每每玩弄法律于股掌之上——如果国际法对美国有利,美国就高高祭起这面大旗;如果国际法可能约束美国的行为,美国就会把它踩在脚下置之不理,甚至将“非法”尊为“合法”,将“合法”抹黑为“非法”。

美国如果真的关心国际法治,为何《联合国海洋法公约》推行几十年了还不愿加入?众所周知,作为规范当代国际海洋关系最重要的法律文件,《联合国海洋法公约》被誉为当今世界的“海洋宪章”,目前大部分国家都已加入《联合国海洋法公约》。美国作为世界上最大的海洋国家之一,却一直没有加入该公约,是安理会“五常”中唯一没有加入该公约的国家。根子就在美国霸权主义的国际法观和傲慢自私的海洋特权思想。

美国口口声声以海洋法治的维护者自居,却为一己之私拒不批准加入公约;口口声声要求别国接受第三方争端解决方式,自己却又拒不接受国际法院这一联合国最主要司法机构就尼加拉瓜诉美国案所作出的判决和命令;口口声声要求其他国家遵守国际法,却对自己和所谓盟友大开违法之门,长期以来对菲律宾非法侵占中国岛礁的行为视而不见。

这种自相矛盾与双重标准,集中体现了美国对待国际法“合则取,不合则弃”的虚伪本质,暴露了其根深蒂固的“帝国思维”。美国现实主义国际关系学者米尔斯海默谈及南海问题时曾说,“中国的邻国有动机在现阶段就把问题解决掉,而不是等到中国强大了,到时候就来不及了”,一句话道出了对中国防范遏制的阴暗心理。

中国正在成长,但一个多世纪里屡遭外敌入侵、强权欺凌的屈辱经历,是中国人民不可磨灭的记忆。在这样的历史记忆中强起来的中国,最懂得遭受欺凌和屈辱的滋味,“己所不欲,勿施于人”;在这样的历史记忆中走过来的中国人民,也决不会答应“屈辱的过去”哪怕在局部重演。

习近平总书记在庆祝中国共产党成立95周年大会上指出:“中国人民不信邪也不怕邪,不惹事也不怕事,任何外国不要指望我们会拿自己的核心利益做交易,不要指望我们会吞下损害我国主权、安全、发展利益的苦果。”这道出了全体中国人民的心声。

放眼南海,闪闪发光的航标灯,照亮的应该是和平的方向,驱散的应该是霸权主义的心魔,警醒的应该是被眼前蝇头小利冲昏的头脑。不合法的裁决不过是废纸一张,它否定不了中国在南海的合法权益,改变不了中国人民维护国际法治尊严,与相关国家一道维护南海和平稳定的坚定意志和决心。

编辑:刘雅萱, 来源:人民日报

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