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Opening Remarks by Director-General Xu Hong at the Press Conference on the "South China Sea Arbitration"
   2016-05-12 18:24:31    CRIENGLISH.com      Web Editor: Fei Fei


12 May 2016

It is reported that the Arbitral Tribunal established at the unilateral request of the Philippines on the South China Sea will soon issue its Award. I know you are paying close attention to the outcome and how the Chinese Government will react to the decision. China has made it clear on various occasions that because the Arbitral Tribunal clearly has no jurisdiction over the present arbitration, the decision to be made by such an institution that lacks the jurisdiction to do so is accordingly non legally binding, and consequently there is no such thing as the recognition or implementation of the Award. Some people wonder whether China¡¯s position above is consistent with international law. Today, I would like to elaborate on China¡¯s position from the international law perspective. I will address three questions before answering those you may raise. 

The first question is, what is the scope of the Arbitral Tribunal¡¯s jurisdiction?

Compulsory arbitration is an innovative procedure for peaceful dispute settlement established by the United Nations Convention on the Law of the Sea (the UNCLOS/the Convention). To settle international dispute by peaceful means is one of the fundamental principles of international law. However, it should be noted that there are a variety of means to settle disputes peacefully, and compulsory arbitration is merely one of them. Compulsory arbitration is subsidiary and complementary to negotiation and consultation. And there are at least four preconditions for its application.

First, compulsory arbitration can only be applied to settle disputes concerning the interpretation and application of the Convention. If the subject matters are beyond the scope of the UNCLOS, the disputes shall not be settled by compulsory arbitration. The issue of territorial sovereignty is one such case. Consequently States shall not initiate compulsory arbitration on disputes concerning it; and even if they do, the arbitral tribunal has no jurisdiction over them.

Second, a State Party to the UNCLOS may declare in writing that it does not accept compulsory arbitration with respect to disputes concerning maritime delimitation, historic bays or titles, military and law enforcement activities, etc. Such exclusions are effective for other States Parties. With respect to disputes excluded by one party, other parties to the dispute shall not initiate compulsory arbitration; and even if it does, the arbitral tribunal has no jurisdiction over them.

Third, if parties to a dispute have agreed on other means of settlement of their own choice, no party shall unilaterally initiate compulsory arbitration; and even if it does, the arbitral tribunal has no jurisdiction over the disputes.

Fourth, parties to a dispute are obliged to first exchange views on the means of dispute settlement. Failing to fulfill this obligation, they shall not initiate compulsory arbitration; and even if they do, the arbitral tribunal has no jurisdiction over the disputes.

The above four preconditions act as the ¡°four bars¡± for States Parties to initiate compulsory arbitration, and for the arbitral tribunal to establish its jurisdiction. They form a part of the package system of dispute settlement, which shall be interpreted and applied comprehensively and in its entirety.

If we apply the above preconditions to the arbitration unilaterally initiated by the Philippines, it is not difficult to see that the Philippines, by initiating the arbitration, has violated international law in at least four aspects, which amounts to abuse of procedures. First, the essence of the subject-matter of the arbitration is territorial sovereignty over several maritime features in the South China Sea, which does not concern the interpretation or application of the Convention. Second, even assuming some of the claims were concerned with the interpretation and application of the Convention, they would still be an integral part of maritime delimitation, which has been excluded by China through its 2006 Declaration and consequently is not subject to compulsory arbitration. Third, given that China and the Philippines have agreed to settle their disputes in the South China Sea through negotiation, the Philippines is precluded from initiating arbitration unilaterally. Fourth, the Philippines failed to fulfill the obligation of exchanging views with China on the means of dispute settlement.

During the proceedings, the Arbitral Tribunal also failed to comply with the above preconditions.

The second question is, why the claims of the Philippines are issues of territorial sovereignty and maritime delimitation.

Some may question the Chinese Government¡¯s position, by saying that the Philippines did not request the Tribunal to decide on the issue of sovereignty, and the Tribunal also held that the claims made by the Philippines were not disputes concerning sovereignty in its Award on Jurisdiction and Admissibility issued on 29 October 2015. In international law, legal arguments should be supported by facts and grounds. With regard to this question, we have abundant facts to support China¡¯s position.

I would like to draw your attention to the criteria advanced by the Arbitral Tribunal for deciding whether a claim constitutes a dispute concerning sovereignty. Putting whether the criteria are comprehensive and appropriate aside, the conclusion made by the Tribunal according to its own criteria are far from convincing.
According to its criteria, whether the claims of the Philippines relate to sovereignty depends on whether ¡°the resolution of the Philippines¡¯ claims would require the Tribunal to first render a decision on sovereignty, either expressly or implicitly¡±, or ¡°the actual objective of the Philippines¡¯ claims was to advance its position in the Parties¡¯ dispute over sovereignty¡±. However, in its deliberation, the Tribunal rushed to endorse the Philippines¡¯ unilateral position that it ¡°has not asked the Tribunal to rule on sovereignty¡±, without examining the connection between the claims and territorial sovereignty. It turned a blind eye to the "actual objective" and corollary of the Philippines¡¯ unilateral initiation of the arbitration.

First, let¡¯s have a look at what is the ¡°actual objective¡± of the Philippines¡¯ unilateral initiation of the arbitration. There are abundant evidence showing that the ¡°actual objective¡± of the Philippines in initiating the South China Sea Arbitration is to deny China¡¯s sovereignty over maritime features in the South China Sea, and to legitimize its unlawful stealing of maritime features from China in the South China Sea. Let me give you an example. On 23 January 2013, the day after the initiation of arbitral proceedings, the Philippine Department of Foreign Affairs released a Q&A on the arbitral proceedings. It explicitly describes the purpose of the case as ¡°to protect our national territory and maritime domain¡±, and talks about not ¡°surrendering our national sovereignty¡±. The Philippines presented its claims in such a disguised manner that it seemingly made no direct reference to sovereignty. But to anyone with a clear eye, it is merely a litigation technique which is neither righteous nor smart. Even the Philippines itself has laid bare its actual objective, why did the Arbitral Tribunal turn a deaf ear to it and even cover for it?

Second, let¡¯s have a look at what is the collorary of the Philippines¡¯ unilateral initiation of the arbitration. The Arbitral Tribunal¡¯s establishment of jurisdiction over and support of claims made by the Philippines will inevitably have substantive negative impact on China¡¯s territorial sovereignty. China has all along been exercising sovereignty over the Nansha Islands as a whole. The islands, reefs, islets and shoals in the Nansha Islands, as an integral part thereof, all belong to China¡¯s land territory. The Philippines intentionally ¡°fragmented¡± the maritime features in the Nansha Islands, and requested the Arbitral Tribunal to decide on the status and maritime entitlements of 8 selected and isolated features. If the Tribunal establishes its jurisdiction over such claims and support them, it would in effect deny China¡¯s territorial sovereignty and maritime entitlements over the Nansha Islands as a whole. This is all too clear. According to media analysis, the decision of the arbitration will narrow China¡¯s sovereignty claims in the South China Sea. The villainous design by the Philippines is apparent, yet the Arbitral Tribunal chose to turn a blind eye.

Furthermore, on the relations between the Philippines¡¯ claims and maritime delimitation between China and the Philippines. It is widely recognized and also common practice that the legal status and maritime entitlements of maritime features are closely connected with maritime delimitation, and disputes over them are apparently disputes concerning maritime delimitation. In order to establish that the claims of the Philippines do not fall within exclusions made by China in its 2006 Declaration, the Arbitral Tribunal opined that the legal status and maritime entitlements of maritime features are separable from maritime delimitation, which is very rare in international practice. Such separation is not only contradictory to the common practice of international law, but also inconsistent with the proposition consistently held by at least two arbitrators of the present arbitration in their previous writings. Previously they held that the legal status and maritime entitlements of maritime features are closely linked with maritime delimitation, but now they have reversed their position. I guess they owe the world a credible explanation.

As a result, the Arbitral Tribunal¡¯s Award on Jurisdiction and Admissibility is fundamentally flawed. Its reasoning and evidence are unconvincing, hence its conclusions are erroneous. Simply put, the Arbitral Tribunal established jurisdiction over claims that are manifestly beyond its competence. The Arbitral Tribunal made every attempt to circumvent the ¡°four bars¡± to its jurisdiction. Therefore, its objectiveness, neutrality and impartiality are in doubt. In violation of the fundamental principle that the jurisdiction shall be established based on fact and law, the Arbitral Tribunal concluded that it had jurisdiction over the Philippines¡¯ claims, which is invalid in international law. China certainly does not recognize it. The opinions made by the tribunal, as an institution that manifestly lacks jurisdiction and should not exist in the first place, are personal views of the arbitrators at best and are not legally binding, not to mention recognition or implementation.

The third question is whether China, by neither accepting nor participating in the Arbitration, does not comply with international law?

Some have alleged that China violated international law by neither accepting nor participating in the Arbitration. I would like to emphasize that by neither accepting nor participating, China is actually complying with its international obligation under the UNCLOS, opposing the abuse of compulsory arbitration procedures provided by the Convention, and upholding the solemnity and authority of international law including the UNCLOS. States have the right not to accept or participate in the arbitration. China has no obligation to accept or participate in proceedings that are deliberately provocative. There is no lack of precedents in not accepting and not participating in international judicial or arbitral proceedings that are illegally initiated. It is not an innovation by China.

The Chinese Government has been maintaining that disputes over territorial sovereignty and maritime delimitation shall be settled through negotiations. Many States are unwilling to settle disputes concerning fundamental and sensitive issues such as territorial sovereignty and maritime rights through third-party dispute settlement procedures. Since these issues concern a country's core interests, no State, if put in China's position, will accept the jurisdiction of third-party mechanisms that are not chosen by them voluntarily, not to mention accepting solutions imposed by such mechanisms. As a matter of fact, the settlement of maritime disputes through negotiations and consultations received overwhelming support at the third United Nation Conference on the Law of the Sea which negotiated the UNCLOS. This reflects the common practice of the majority of States.

China has all along been committed to settling disputes in the South China Sea with relevant countries peacefully through consultations and negotiations on the basis of respecting historical facts and international law. On issues concerning China¡¯s territorial sovereignty and maritime delimitation, any willful effort to use the so-called compulsory arbitration to exert pressure on China will not help to solve the disputes. Such an effort will only backfire.

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