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Vice Foreign Minister Liu Zhenmin at the Press Conference on 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 (II)
2016-07-18 16:31:00

Takung Wen Wei Media Group: Some people believe that, according to paragraph 4 of Article 288 of UNCLOS, in the event of a dispute, as to whether a tribunal has jurisdiction, the matter shall be settled by decision of that tribunal. On what ground does China believe that the Arbitral Tribunal has no jurisdiction over the relevant disputes between China and the Philippines?

Liu Zhenmin: Some people have said that, and that has been said by some arbitrators of the Arbitral Tribunal as well. But this is exactly an example of the abuse of UNCLOS and the power of the tribunal. The dispute settlement procedures under Part XV of UNCLOS form an integral system and cannot be viewed in isolation.

First, the Arbitral Tribunal should understand that disputes over territorial sovereignty are certainly beyond the scope of UNCLOS. They are subject to traditional international law. Second, according to Article 298 of UNCLOS, State Parties are entitled to exclude disputes, including disputes over maritime delimitation, from compulsory settlement procedures. If someone wants to exploit the so-called compulsory procedures and initiate an arbitration, then the matters should be heard in accordance with provisions of UNCLOS, including Articles 280 and 281. In other words, first of all, it must be determined whether agreement has been reached between the two countries concerned on means of dispute settlement. As the Chinese government has reiterated repeatedly, between China and the Philippines, there is agreement that bilateral negotiation should be the way to address the disputes. There are statements and agreements on this. But this has been ignored by the Arbitral Tribunal. That means Articles 280 and 281 of UNCLOS were not properly applied by the Arbitral Tribunal. In other words, even if a matter involves disputes over the interpretation and application of UNCLOS, the Arbitral Tribunal should, first of all, find out whether the countries concerned have discussed the matter of interpretation and application. Unfortunately, this has been omitted by the Arbitral Tribunal. So as you can see, the Arbitral Tribunal ignored many facts and procedures and directly jumped to the conclusion that based on Paragraph 4 of Article 288, it has the right to decide whether it has jurisdiction over the case. It has ignored China's rights and abused the provisions of the Convention and the relevant procedures. This shows that the Arbitral Tribunal has credibility problems in all respects. It has no credibility at all.

The Arbitral Tribunal must act in strict accordance with the Convention, and follow the due procedures-something this Arbitral Tribunal has not done. You can't just cite one article and claim jurisdiction. There is no legal basis for doing that. The law gives you both the rights and obligations. They form an integral whole. You can't just say that you have the rights but ignore your obligations. When making the award on jurisdiction, this Arbitral Tribunal only claimed its rights but failed to properly perform its obligations under the Convention. Thank you.

CCTV: We have seen that after the Arbitral Tribunal rendered the award, some countries claim that the award has binding force for both parties. As they see it, if China refuses to implement the decision of the Arbitral Tribunal, it is a violation of the international law and will undermine China's international reputation. How would you comment on this?

Liu Zhenmin: As for whether the award has binding force, the Chinese government has made its position clear. As the statement of the Foreign Ministry says, it is null and void, and has no binding force. China does not recognize it and will not enforce it. Why? The reason is fully expounded in the Foreign Ministry's statement and the white paper to be issued today. Today,I will focus on the legality of the Arbitral Tribunal to reveal the true nature of the Arbitral Tribunal.

First of all, the tribunal is not an international court. It has no relation to the International Court of Justice (ICJ) in The Hague in the UN system. It has certain ties with the International Tribunal for the Law of the Sea (ITLOS) in Hamburg, but it is not part of ITLOS. It does not belong to the same system of the Permanent Court of Arbitration (PCA) in The Hague but has a bit to do with it. The PCA provides its secretariat service. In its public hearings, the Arbitral Tribunal uses the court room of the PCA. But that's all. Please note,this Arbitral Tribunal is not an "international court".

Second, the composition of the Arbitral Tribunal is actually the result of political manipulation. The Arbitral Tribunal consists of five members. Apart from Judge RĂ¼diger Wolfrum from Germany who was appointed by the Philippines, the other four were appointed by the then President of ITLOS, a Japanese judge Shunji Yanai. Now who is this Shunji Yanai? He was and still is a judge at ITLOS, but he is also the chairman of the Japanese Advisory Panel on the Reconstruction of the Legal Basis for Security of the Abe administration of Japan. He played a big role in assisting Abe to lift the ban on Japan's right to collective self-defense, which challenges the post-war international order. He used to be the ambassador to the United States. Various information has proved that he manipulated the composition of the Arbitral Tribunal and continued to exert influence on the operation of the tribunal.

Third, the composition of the Arbitral Tribunal is seriously flawed. As you can see, four of the five judges come from Europe: one from Germany, one from France, one from the Netherlands and one from Poland. All four countries are members of the European Union. The fifth one comes from Ghana and once served as the President when ITLOS was first established, but he lives in Europe. So is such a tribunal representative? Are the members familiar with the Asian culture or the South China Sea issue? It concerns the representativeness and impartiality of a tribunal or court, which has been the focus of great international attention for decades. This was why in 1945 when the UN Charter was signed and when the Statute of the International Court of Justice was concluded,a clear stipulation was established that the composition of such courts must be representative of the cultures and major law systems of the world. There was also such a requirement when ITLOS was established. The reason was to ensure the representation and authority of such courts. In the ICJ and ITLOS,there are Chinese judges. In the PCA, there are also Chinese judges. I am one of the four Chinese arbitrators of the PCA. But in this Arbitral Tribunal, none of the five judges come from Asia, not to say China. Do they really know about Asia, about Asia's culture, about the issue in the South China Sea? And about the complex geopolitical situation in Asia and the history of the South China Sea? On what ground can they make a fair judgment?

Fourth, the operation of the Arbitral Tribunal is quite interesting, to the astonishment of experts of international law. The pre-existing opinions of some of the judges made people believe that they would safeguard certain interests, but after the Arbitral Tribunal was in operation, they went against what they had expressed in their previous articles and statements. The question is whether they can stay true to their academic ethics and real belief. One of the witnesses in the hearings said in his work that at least 12 features in Nansha Qundao are islands that can have 200-nautical-mile EEZs, but at the public hearing, he said that there is not a a single one. How can such a person be regarded as an expert? Unfortunately, his point was adopted by the Arbitral Tribunal without any investigation or study.

Moreover, who is behind this Arbitral Tribunal? These arbitrators were paid. And who supported and paid them? Was it the Philippines or some other country? So the mechanism of this operation is completely different from the ICJ or ITLOS.

The judges of the ICJ and ITLOS there are paid by the UN to ensure their independence and fairness. But in this Arbitral Tribunal the five judges were paid by the Philippines or probably some others. We don't know. But we do know that they were paid for their service. This is the first ad hoc arbitral tribunal that claims to be established in accordance with Annex VII of UNCLOS, but it went against the expectations of the founders of UNCLOS and created a very bad precedent. Last year, I said that this arbitration could become a notorious case in the history of the international law. And the behavior of the Arbitral Tribunal has shown that it is very difficult for compulsory arbitration procedures to be successful and this Arbitral Tribunal is a failure. How can the award rendered by such an Arbitral Tribunal have legal force and be credible and fair? Some countries are saying that the award has a binding force and should be enforced by relevant parties. This is a lie. Who will enforce an award with no credibility? The position of the Chinese government is clear-cut: this arbitration is null and void and not binding. We do not accept or recognize it. Thank you.

Reuters: What China's next steps are going to be after the issuance of the award? Will China send more military equipment to the South China Sea? Will China declare an air defense identification zone in the South China Sea?

Liu Zhenmin: It is normal for the Chinese navy to operate in the South China Sea because it is South China Sea. However, we've seen that a certain country has sent large aircraft carrier fleet to the South China Sea. So you can draw conclusion for yourselves. China's position on the arbitration is clear. We do not recognize or implement the award. It is just a piece of waste paper. You may just chuck it in the bin, leave it on the shelf, or put it in archives. In the end, the parties concerned will be back to the track of negotiation. China hopes that we can go back to the track of negotiation with the Philippines as soon as possible.

As you can see, the title of the white paper is China Adheres to the Position of Settling Through Negotiation the Relevant Disputes Between China and the Philippines in the South China Sea. This is its theme and the policy of the Chinese government. We hope that China and coastal states in the South China Sea, including the ASEAN countries, will together act upon the DOC signed by China and the ten ASEAN countries and jointly uphold the peace and stability of the South China Sea and the freedom of navigation and overflight. This policy remains unchanged and will not change.

As to whether China will set up an air defense identification zone, let me first make clear that China has the right to do so. This system is not invented by China, but by some other major countries. We have set up one in the East China Sea, and whether we need to set up another one in the South China Sea will depend on the degree of threat we face. If our security is threatened, we have the right to do so. And it will depend on our comprehensive judgment.

We hope that other countries will not take the opportunity to threaten China but to work with China in the direction towards peace and stability in the South China Sea and do not make the South China Sea an origin of war. China's goal is for the South China Sea to become the sea of peace, friendship and cooperation. Thank you.

People's Daily: Why does China decide to issue this white paper on the relevant disputes Between China and the Philippines in the South China Sea? What messages does China want to convey?

Liu Zhenmin: In issuing this white paper, the Chinese government wants to send messages and to state positions. And we want to set the facts straight. Three and half years ago when the then Philippine government initiated the arbitration, the so-called facts it cited in its request were distorted. So were many of the legal principles. And in the arbitration process many facts were also distorted, and many mistakes were made in the application of law. So our primary objective is to set the facts straight, making clear that our sovereignty and maritime rights and interests in the South China Sea are established in the long course of history, not entirely by UNCLOS, but by usual rules of international law. So firstly we want to clear the facts.

Second, there is an agreement between China and the Philippines that negotiation is the only way for us to resolve the disputes in the South China Sea. So the white paper is both intended to state our policy and to send a positive signal to the international community, to coastal states in the South China Sea and to our neighbor the Philippines, to make clear that the disputes between China and the Philippines and in the wider South China Sea can only be resolved through negotiation. There is no other way out. Don't imagine that a tribunal can solve any issue. So I invite you to read the white paper carefully. Thank you.

BBC: You talked about the need for agreement to settle the disputes in the South China Sea. Is China prepared to share the resources of the South China Sea, for example, fishing, oil, gas, with other nations? And what is the mechanism by which that would happen? Do you need a direct country-to-country agreement or something like that? After this sort of disputes, after this white paper process, what is the mechanism by which China can share resources in the South China Sea with other countries if it's prepared to do so?

Liu Zhenmin: It should be noted that since UNCLOS was formulated in 1982, China and coastal countries of the South China Sea have one after another become State Parties to the Convention. Disputes between China and coastal countries of the South China Sea over maritime delimitation have emerged since then. To address the disputes, China has set up bilateral channels of communication with all coastal countries of the South China Sea. For example, we have started negotiations on maritime delimitation with Vietnam. After years of efforts, we signed the agreement on maritime delimitation in the Beibu Gulf and the agreement on the management of fishing activities in the Beibu Gulf in the year 2000. The negotiations on maritime delimitation, the consultations on joint development and the cooperation in low-sensitive areas, in particular, the delimitation of the region outside the mouth of the Beibu Gulf, and many other mechanisms are all operating well. In 2011, we also signed an agreement on guiding principles for settlement of maritime issues.

China and the Philippines have maintained communication on fishing and confidence building measures since 1996. During the administration of President Arroyo, China and the Philippines also cooperated on joint marine seismic endeavors in disputed areas. Later, Vietnam also joined in the cooperation. We wanted to move the cooperation into the next stage, but then the Philippines got a new administration, and our partner changed its position. The cooperation was stalled as a result.

With Malaysia and Brunei, China is maintaining bilateral communication and cooperation. As a matter of fact, China and coastal countries of the South China Sea all understand the complexity of the relevant disputes in the South China Sea and know that they cannot be addressed within a short period of time. So we have always been talking about cooperation. China was the earliest to propose the concept of joint development while shelving disputes and differences. It was to the Philippines that China made the proposal for the first time. Our policy has remained unchanged. And cooperation only stopped because the administration of Aquino III initiated the arbitration. I hope we can turn this page after the arbitration. As I said, the award is null and void and will not be enforced. I call on everyone to go back to the negotiating table, to the track of cooperation, and to resolve disputes through negotiation and share common interests through cooperation.

To conduct cooperation on fishery, oil and gas resources have been the consistent position of the Chinese government. China and coastal countries of the South China Sea have the ability to reach an agreement. We are confident about this. Thank you.

 
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