The following commentary is based on media releases by the Chinese government:
Reuters says in its report “China denounces Philippine ‘pressure’ over sea dispute arbitration” yesterday, that China has denounced the Philippines for putting it under pressure with international arbitration on South China Sea territorial disputes.
According to the Chinese Ministry of Foreign Affairs, China has published its position paper raising the following grounds that the dispute is not within the jurisdiction of the Permanent Court of Arbitration at The Hague:
“1. The essence of the subject-matter of the arbitration is the territorial sovereignty over several maritime features in the South China Sea, which is beyond the scope of the Convention and does not concern the interpretation or application of the Convention;
“2. China and the Philippines have agreed, through bilateral instruments and the Declaration on the Conduct of Parties in the South China Sea, to settle their relevant disputes through negotiations. By unilaterally initiating the present arbitration, the Philippines has breached its obligation under international law;
“3. Even assuming, arguendo, that the subject-matter of the arbitration were concerned with the interpretation or application of the Convention, that subject-matter would constitute an integral part of maritime delimitation between the two countries, thus falling within the scope of the declaration filed by China in 2006 in accordance with the Convention, which excludes, inter alia, disputes concerning maritime delimitation from compulsory arbitration and other compulsory dispute settlement procedures;
“4. Consequently, the Arbitral Tribunal manifestly has no jurisdiction over the present arbitration. Based on the foregoing positions and by virtue of the freedom of every State to choose the means of dispute settlement, China’s rejection of and non-participation in the present arbitration stand on solid ground in international law.”
I am not an expert of international law so that is in no position to tell whether those grounds are justified. However, just as China has repeatedly point out that even if the arbitration award is favourable for the Philippines, there is no way to enforce it. However, it will intensify the tension between China and the Philippines.
However, in an interview about the report, Mr. Xu Hong, Director-General of the Department of Treaty and Law of the Foreign Ministry, leaves the door open for bilateral negotiation with the Philippines on the disputes. He says, “China urges the Philippines to return as soon as possible to the right track of negotiation to settle the disputes.
“China is also ready to work with all relevant countries to properly resolve their disputes through negotiation and on the basis of respect for historical facts and international law, and strengthen win-win cooperation, to jointly maintain peace and stability in the South China Sea.”
The following is the full text of Reuters report:
China denounces Philippine ‘pressure’ over sea dispute arbitration
China denounced the Philippines on Sunday for putting it under pressure with an international arbitration case over disputed waters, and refused again to participate a week ahead of a deadline to respond in the case.
In a position paper, China outlined its arguments against the jurisdiction of the Permanent Court of Arbitration at The Hague to take up the case filed by the Philippines last year that could have implications for China’s claims over the South China Sea.
“Its underlying goal is not … to seek peaceful resolution of the South China Sea issue, but rather, by resorting to arbitration, to put political pressure on China, so as to deny China’s lawful rights in the South China Sea through the so-called ‘interpretation or application’ of the Convention,” China’s foreign ministry said.
China claims almost the entire South China Sea, rejecting claims to parts of it from Vietnam, the Philippines, Taiwan, Malaysia and Brunei. It has a dispute with Japan over islands in the East China Sea.
China has long rejected arbitration, insisting it would resolve disputes bilaterally. The tribunal has given China until Dec. 15 to reply in the case.
Xu Hong, head of the ministry’s legal and treaties department, said the timing of the paper had nothing to do with the deadline, and it had taken time to prepare China’s arguments for why it was not participating in arbitration.
“Some people, who do not know the truth, have questioned China’s position of not accepting or participating in the arbitration,” he told a news conference.
“Some others, who harbour ulterior motives, have made one-sided and misleading readings of the rules of international law, and, on that basis, made accusations or insinuations that China does not abide by law and perversely brand China a ‘challenger’ to international rules.”
He accused the Philippines of lying when it said it had discussed arbitration with China, and of failing to respond to Chinese proposals for talks.
“The Philippines is keenly aware of the importance of addressing the issue through peaceful negotiations. But it still unilaterally initiated a compulsory dispute settlement procedure. Of course China cannot accept this.”
China’s participation is not required as the tribunal is not meant to resolve the dispute but address the validity of China’s “nine-dash line” as well as the classification of various features under the U.N. Convention on the Law of the Sea to which China is a signatory.
China’s claim is represented on its maps by a nine-dash line that loops out from its coast.
A ruling in the Philippines’ favour could undermine parts of China’s claim to the sea, which critics say has an obscure basis under the Convention.
Sources: The website of Chinese Ministry of Foreign Affairs “Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines” and “Remarks by Mr. Xu Hong, Director-General of the Department of Treaty and Law of the Ministry of Foreign Affairs, on the Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines”
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