Briefing on the South China Sea Arbitration Initiated by the Philippines XU Hong, Director-General of Department of Treaty and Law
On May 12th 2016, Mr. XU Hong, Director-General of the Department of Treaty and Law of the Ministry of Foreign Affairs of the People's Republic of China, made a briefing to both Chinese and foreign media outlets on the South China Sea Arbitration initiated by the Philippines. He introduced China's positions on the Arbitration and answered 9 questions raised by journalists during the briefing. Mr. WANG Xining, Deputy Director-General of the Information Department of the MFA, hosted the briefing. The transcript of the briefing is as follows:
Deputy DG WANG Xining: Good morning, everyone. Welcome to the Press Information Center of the Ministry of Foreign Affairs. The South China Sea Arbitration initiated by the Philippines is attracting much attention. Today, we are very pleased to invite Mr. XU Hong, Director-General of the Department of Treaty and Law of the MFA, to brief us on the relevant policies and positions of the Chinese Government, especially from the international law perspective. Now, I give the floor to Director-General XU Hong to give his opening remarks.
DG XU Hong: Dear friends from the media, colleagues, good morning. Today it is my great pleasure to take this opportunity to have a face-to-face interaction with you on the issues of international law on the South China Sea Arbitration.
It is reported that the Arbitral Tribunal will soon issue its Award on the South China Sea Arbitration unilaterally initiated by the Philippines. I know you are paying close attention to the outcome and how the Chinese Government will see and react to the decision. China has made it clear on multiple 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 has obviously on legal effect, 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 positions from the international law perspective. For many of you, legal issues may be boring and dull, but since we are talking about international law here, we do need to be professional.
Before taking your questions, I will give you a brief overview of the issues.
The first question is what is the scope of the jurisdiction of the Arbitral Tribunal.
As you know, to settle international disputes 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 a new type of procedures established under the UNCLOS. Compulsory arbitration is subsidiary and complementary to negotiation and consultation, and its application is subject to several preconditions. Simply put, there are at least four such preconditions.
First, compulsory arbitration can only be applied to settle disputes concerning the interpretation and application of the UNCLOS. 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 to 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 dispute.
Fourth, at the procedural level, 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 dispute.
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.
When we refer to international law, we need to know in the first place what international law is all about. What I said above is the substance of international law. 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.
First, the essence of the subject-matter of the arbitration is territorial sovereignty over several maritime features in the South China Sea, which is beyond the scope of the UNCLOS. Second, even assuming some of the claims were concerned with the interpretation and application of the UNCLOS, 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.
In summary, the Philippines' initiation of the arbitration is a typical abuse of compulsory arbitral procedures stipulated in the UNCLOS. For the reasons set above, the present Arbitration should not have come into existence in the first place. In 2014, the Chinese Government issued a Position Paper to elaborate, from an international law perspective, on the question why the Tribunal lacks jurisdiction over the Arbitration. You may revisit it if you like.
However, the Tribunal is not objective or just. On several occasions, it distorts the provisions of the UNCLOS to embrace the claims of the Philippines. In violation of the fundamental principle that the jurisdiction shall be established based on facts and law, the Arbitral Tribunal concluded that it had jurisdiction over the Philippines' claims, which is neither convincing nor valid in international law. For such an award, China certainly has good reasons not to 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 its recognition or implementation.
I will stop here and take your questions.
Deputy DG WANG Xining: Now the floor is open for questions. Please introduce yourself before asking the question. One question each time, please.
1. China Daily: Hello, I am with China Daily. I have a question for Director-General XU. In the media, some say that no matter what view China holds, the prevalent international public opinion is that, the Philippines initiated the arbitration in line with international law, and China would be regarded as bullying the small by virtue of its size, and violating international law if it does not implement the decision of the Arbitral Tribunal. And is China concerned about being isolated in the international public opinion?
DG XU Hong: There does exist a view that since the UNCLOS provides that the award of compulsory arbitration shall be binding, China is obliged to comply with and implement it no matter what decision the Arbitral Tribunal makes. Such a view, however, is only partial. As a basic principle of arbitration, for an arbitral award to be recognized and implemented, one of the preconditions is that the arbitral tribunal that makes the award has jurisdiction over the claims. If the tribunal lacks jurisdiction, the arbitration proceedings shall not be continued. Even if they are carried forward, the outcome would be invalid, and shall neither be recognized nor implemented. The tribunal shall not decide on its jurisdiction arbitrarily, but prudently in line with international law including the UNCLOS.
From what I said just now, we can see that the Arbitral Tribunal, in deciding whether it has jurisdiction over the claims made by the Philippines, manifestly committed mistakes in determining the facts and applying the law. The Tribunal breached the provisions and purposes of the UNCLOS, and it is a typical example of ultra vires and abuse of its rights. Ostensibly the Tribunal followed every step of the procedures needed and was impartial. But in determining the facts and applying the law, there are many loopholes and flaws. Even if it went through all the procedures, it is ultimately a "show" carefully orchestrated. And the eventual outcome of the Tribunal will not have any legal effect.
The Award has yet to be rendered, but some people rushed to ask China to comply with and implement the outcome. I wonder what award exactly they are asking China to implement, and what contents it contains. If the Arbitral Tribunal simply expresses some legal opinions on abstract issues that are irrelevant to territorial sovereignty or maritime delimitation, we would at best take note of them, and there is no such thing as implementation. If the award is to be used to restrict China's sovereignty claims or sovereign actions in the South China Sea, it would in itself prove that the Tribunal is abusing its power. How can such an award be valid?
From a purely legal perspective, this is just an ordinary case between China and the Philippines, no matter what positions the two sides take. The positions and actions taken by the two sides, including their reaction to the outcome, are only issues between them. But we can see that there is a clear orchestration behind such a show. There are not only actors playing leading and supporting roles on the scene, but also fans in the audience echoing them. They have tried every effort to put up such a show in a seamless manner. I am not sure whether you as reporters have seen this before, but it is indeed the first time that I have seen such a scene. If some insist that this is a purely legal case and all the above is just coincidence, would any of you believe it?
That said, it must be noticed that those who are sensationalizing this Arbitration, however loud their voice may be, are only the minority compared to all States in the world. Those who are accusing China in the name of international law, according to our observation, are often politicians and non-professionals with ulterior motives. It is exactly the people who really need to learn something about international law. The crux of the Arbitration is not about whether China is committed to settling disputes with the Philippines peacefully in accordance with international law, which is clear and affirmative, but about whether China should accept the compulsory arbitration proceedings imposed by the Philippines unilaterally and illegally. These two issues are separate and different from each other, and are not to be confused.
Actually a number of rational opinions have been uttered on this issue. Genuine international lawyers have expressed some serious and objective comments. But they have been ignored willfully and selectively by some people. Ultimately we need to rely on the law and facts. Some people are trying to change the concepts, confound right and wrong, and black and white. They may be able to mislead the public opinion for some time, but eventually lies will not become true even if they are repeated a thousand times. We of course cannot stop others from expressing their opinions. But I would suggest that they get to know the facts in the first place and be more professional. It will be proved that China is a firm practitioner and defender of international law. And we don't feel isolated at all. Thank you.
2. BBC: From BBC. My first question is, do you think it is possible at all that this Tribunal could come up with a decision which is favorable to China, irrespective of its jurisdiction or whether the award should be binding or not? And secondly, is it one of the big problems for China, that for those average persons who are not so familiar with international law, it seems that, looking from the map, the disputed areas are closer to the Philippines than China, so they may tend to believe that the Philippines has stronger arguments than China? Thank you.
DG XU Hong: On your first question, obviously now there is no way for us to tell or prejudge the outcome of the Arbitration, and to whom it would be favorable. Some State may know the outcome already, but we don't. But one of the basic principles of law is that an arbitral tribunal must firstly have jurisdiction before it deals with the merits, no matter what award it makes. If it does not have jurisdiction, its subsequent actions will have no legal basis. Without jurisdiction, all its acts, including the so-called award made eventually, would be meaningless in law, just as water without its source or a tree without roots.
On your second question, I think people with some knowledge of international law would know that, whether a piece of land is under the sovereignty of a particular State has nothing to do with its distance from the mainland. China's sovereignty over the South China Sea Islands is formed in the course of the history, and has long been recognized by the international community. So what you said just now is not a valid proposition from the perspective of international law. Thank you.
3. CCTV: I have two questions. My first question is that although China argues that the essence of the claims made by the Philippines is territorial sovereignty over several maritime features in the South China Sea, 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, why should people believe in the Chinese side of the story?
My second question is that, some said that whether the Tribunal has jurisdiction shall be decided by the Tribunal itself, rather than China. The Tribunal was instituted in line with the UNCLOS, and its subsequent procedures were complete, independent and transparent. It has now established its jurisdiction over this arbitration. Therefore, no matter what decision it makes in the following proceedings, it will be binding on China, and China should implement it. Otherwise, it will be a violation of international law. What's you view on this opinion?
DG XU Hong: The first question is very important. In the present Arbitration, if the essence of the claims made by the Philippines is territorial sovereignty and maritime delimitation, the Arbitral Tribunal does not have jurisdiction over them. We have noted that the Arbitral Tribunal has come to a conclusion that is contrary to China's position. In order to answer this question, I would like to refer to various facts.
In its Award on Jurisdiction and Admissibility, the Arbitral Tribunal advanced its criteria 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 is 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, after advancing the criteria, the Tribunal rushed to endorse the Philippines' unilateral position that it "has not asked the Tribunal to rule on sovereignty". The Tribunal neither demonstrated the reasons why it accepted the Philippine position, nor examined 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 the objective connection between the claims of the Philippines and territorial sovereignty. China has all along been maintaining territorial sovereignty claims 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 requested the Arbitral Tribunal to decide that Meiji Jiao, Ren'ai Jiao, Zhubi Jiao, Nanxun Jiao, Ximen Jiao, etc. are low-tide elevations and are not capable of generating any maritime entitlement. This is only aimed to deceive others.
According to international law, the entity that enjoys maritime entitlements is the State that owns maritime features, rather than the maritime features themselves. Each maritime entitlement is explicitly tied to the State that it belongs to. In its provisions on territorial sea, contiguous zone, exclusive economic zone, and continental shelf, the UNCLOS explicitly grants the maritime entitlements to the "coastal State" of relevant maritime zones in question. It is meaningless to indulge in the empty talk on the legal status and entitlements of maritime features without making a preliminary decision on who is the "coastal State" and in separation from State sovereignty. The legal status and entitlements of maritime features do not constitute actual disputes in themselves, and there is no precedent in international law deciding otherwise. In addition, whether low-tide elevations are subject to occupation is a question of territorial sovereignty, which, as I mentioned earlier, is beyond the scope of the UNCLOS, and does not concern the interpretation and application of the Convention. Therefore, objectively, the legal status and maritime entitlements of maritime features are inseparable from the issue of sovereignty.
The claims advanced by the Philippines have close link with maritime delimitation between China and the Philippines. In international law, to determine the legal status and maritime entitlements of maritime features is inseparable from maritime delimitation, and is clearly issues thereof. 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 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. They owe the world a credible explanation.
Second, let's have a look at what is the "actual objective" of the Philippines' unilateral initiation of the Arbitration. There is 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 Nansha Islands, and to legitimize its unlawful stealing of maritime features of the Nansha Islands from China. 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". There are many other expressions of this kind by the Philippines. Before the Tribunal, 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 and those in this profession, 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?
Third, let's also have a look at what is the collorary of the Philippines' unilateral initiation of the arbitration. In effect, 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. The Philippines intentionally dissected the maritime features in the Nansha Islands, and requested the Arbitral Tribunal to decide on the legal 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 professional arbitrators chose to turn a blind eye.
There are many more loopholes in the Arbitral Tribunal's award on jurisdiction. Many of its reasoning and justifications are untenable. Due to the time limit and as this is not an academic presentation, I shall refrain from spelling them out one by one. I would like to stress that, however, it is not that China does not want to settle the disputes peacefully with the Philippines, but whether such disputes can be effectively settled through compulsory arbitration proceedings. I doubt it. On disputes concerning fundamental and sensitive issues such as territorial sovereignty and maritime rights, many States do not accept third-party dispute settlement mechanisms. 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 it voluntarily, not to mention accepting solutions imposed by such mechanisms.
With respect to your second question, I have partly addressed it earlier. Although the Arbitral Tribunal may decide whether it has jurisdiction itself, it cannot make the decision arbitrarily but must do so in line with facts and international law, including the UNCLOS. If the Arbitral Tribunal does not abide by the law and is simply "putting on a show", we need to question its credibility.
The Arbitration brings our attention to a question that the international community should be concerned of, i.e. how to interpret and apply the compulsory arbitration procedures under the UNCLOS comprehensively, accurately and in good faith. If other States follow the Philippines to abuse the compulsory arbitration procedures by presenting their claims in such a disguised manner, and the arbitral tribunals, like the present one, disregard the balance established by the UNCLOS and recklessly decide ultra vires, any case could be submitted for arbitration in disguise. The consequence would be the opening of the "Pandora's box" of lawsuit abuse, and that the declarations excluding compulsory arbitration made by over 30 States will be rendered completely meaningless.
The emergence of such a situation would be detrimental to the benefit the international community. It will not contribute to the peaceful settlement of disputes. On the contrary, it will only undermine the credibility and authority of the dispute settlement mechanisms under the UNCLOS, and sabotage the international order of the sea established by the UNCLOS. It is our hope that when viewing these question, States will not be distracted by this temporary incidents, rather they should put this into a rational and long-term perspective.
4. Reuters: Thank you. From Reuters. You say that China is not isolated in your position on this case. As I understand, most of the countries that come up to support China are mostly small, insignificant countries like Fiji and Laos, and Western countries don't seem to accept what the Chinese Government says on this. Do you think that the Chinese Government is perhaps losing the propaganda war to convince the Western public opinion that your position is right? How can you best win the propaganda war? Is part of that includes allowing foreign journalists to visit the South China Sea which so far we are not permitted? Thank you.
DG XU Hong: Thank you. I think I have already covered this issue. Everyone is entitled to his own yardstick in judging whether it is just or not. It is not a group fight, and we are not competing to see whose shout is the loudest. Like you said, it is some Western countries that expressed views unfavorable to China, but a group of some Western countries can by no means represent the whole international community.
Actually we've had many in-depth discussions with scholars and legal officials from Western countries. Actually we have common understanding on some legal issues and we share the same concern that the compulsory arbitration procedures might be abused. However, when the politicians speak in front of the media, they choose not to say these. Even in Western countries, there are also serious and objective professionals who have a fair and just position. If you are interested, I would refer you to those articles, which are usually highly technical and professional. They may not be so interesting for you to read and are less attractive than those propaganda.
You are right by saying that if China's positions are justifiable, we should make our positions and the reasoning clear. Today is a good occasion for us to elaborate on our positions. I don't know whether I have covered them in full and make them crystal clear, and I don't know whether you will report them faithfully. On international law issues, you are welcomed to discuss with us anytime. Thank you.
5. CCTV: Some say that since China has sufficient justifications, why didn't China want to participate in the proceedings? Some also say now that China has renounced the opportunity to appear before the Tribunal to contest the jurisdiction, then shouldn't China bear the consequence? Thank you.
DG XU Hong: Thank you. On this question, I will respond to you with four brief points.
First, not accepting or participating in arbitral proceedings is a right enjoyed by a sovereign State. That is fully in conformity with international law. And certainly, China is not the first State to do so. For such a proceeding that is deliberately provocative, China has neither the obligation nor the necessity to accept or participate in it. The Philippines' initiation of the Arbitration lacks basic grounds in international law. Such an act can neither generate any validity in international law, nor create any obligation on China.
Second, by not accepting or participating in the arbitral proceedings, we aim to safeguard the solemnity and integrity of international law, including the UNCLOS, to oppose the abuse of the compulsory arbitration procedures, and to fulfill our commitments with the Philippines to settle relevant disputes through negotiations. The commitments were breached by the Philippines, but China remains committed to them.
Third, the actual objective of the Philippines to initiate the Arbitration and that of some other States to fuel the fire are not to genuinely resolve disputes. The Philippines was fully aware that the Arbitral Tribunal has no jurisdiction over disputes concerning territorial sovereignty and maritime delimitation between the two States; it was fully aware that it was absolutely not possible that China would accept the compulsory arbitration; and it was also fully aware that such a means would not help resolve the problem. With full awareness of the above, the Philippines still decided to abuse the provisions of the UNCLOS by unilaterally initiating and then pushing forward the arbitral proceedings. Some other States, who were making every effort to echo it, apparently have their ulterior motives. For such a game, there is no point for China to humor it.
Fourth, whether or not China accepts and participates in the arbitral proceedings, the Arbitral Tribunal has the obligation under international law to establish that it does have jurisdiction over the disputes. But from what we have seen, it apparently has failed to fulfill the obligation and the ruling would certainly be invalid. So there is no such thing of China's taking the consequence of the arbitration. If anything, it is the Philippines that should bear all the consequences of abusing the UNCLOS. Thank you.
6. PTI: There are many examples of the successful settlement of disputes under the UNCLOS. Last year, India and Bangladesh reached an agreement based on the UNCLOS to settle their maritime disputes, under which India conceded some of its claims on maritime area. Can we take it as a successful example for the settlement of disputes through arbitration under the UNCLOS? Whether China sees this entire Arbitration as a conspiracy against China? The UNCLOS is a convention under the framework of the United Nations, and China is an influential member of the UN, then why is China taking such a strong position against this Arbitration?
DG XU Hong: Thank you. What I said just now shows that the Philippines' initiation of the compulsory arbitration is in violation of the UNCLOS. We should apprehend the dispute settlement mechanism under the UNCLOS comprehensively and in its entirety, and keep in mind that in the mechanism compulsory arbitration is merely a secondary procedure.
Dispute settlement mechanism is one of the pillars of the legal order of the sea established by the UNCLOS. One of its purposes is to promote the peaceful settlement of maritime disputes, and to strengthen the peace, security, cooperation and friendly relations among nations. To achieve this purpose, the UNCLOS stipulates a two-layer dispute settlement mechanism. Under this mechanism, the means of dispute settlement chosen by the States Parties on their own will should be applied as the preferred procedures, and the compulsory procedures are secondary and complementary. So it must be made clear that when we talk about dispute settlement mechanism under the UNCLOS, it is not only the compulsory arbitration. As a matter of fact, in the Convention the respect for the States' choice on their own will or autonomous willingness is underlined. This principle is evidenced by various provisions in the Convention. Due to the very limited time available, I shall not spell them out one by one here. But if you go through the text of the UNCLOS carefully, it should not be difficult to know this principle.
You just talked about India's experience in settling disputes with other States. I believe whatever procedure is used, it is decided on a voluntary basis. As far as disputes in the South China Sea are concerned, to settle them through consultations and negotiations is the political decision made jointly by China and other parties after extensive communications and coordination. This decision is not only written in the DOC, but also reiterated in the joint statements signed by leaders, high-level officials and governments of relevant States.
China, as a responsible State, is committed to settling disputes in the South China Sea through friendly consultations and negotiations in line with international law, including the UNCLOS. The disputes in the South China Sea involve many States and are related to various complex historical backgrounds and sensitive political factors. To achieve final settlement of them needs the patience and political wisdom of all parties. As negotiations allow States to express their concerns and exchange views in a thorough, free and systematic manner, they are the most direct, effective and frequently used means in international dispute settlement.
China's position on the settlement of disputes concerned through friendly consultations and negotiations is fully in line with the UNCLOS. Some say that only by accepting arbitration would China be considered in compliance with the UNCLOS. This only shows their ignorance of the UNCLOS. Thank you.
7. China Radio International: Hello Director-General Xu. From China Radio International. You have talked a lot about the illegality of the Arbitral Tribunal. I wonder if it renders its Award, whether China will take legal measures to respond to that? Will China take any countermeasures? If the Philippines proposes to negotiate on the basis of the Award, what will China do?
DG XU Hong: Thank you. Like I said earlier, now this Arbitration has evolved into a drama. We don't have to be so serious about the outcome of a drama. I wish to stress three points:
First, China's position on the South China Sea issue will not change. Neither the Philippines' initiation of the Arbitration nor the Tribunal's issuance of the Award is to change the history and fact that China has sovereignty over the South China Sea Islands and their adjacent waters. They will not weaken China's determination and volition to safeguard its sovereignty and maritime rights and interests. They will not affect China's policy and position of resolving disputes through direct negotiations, and of safeguarding the peace and stability in the South China Sea jointly with other States in the region. I hope that we will not be abducted by this Arbitration in any of the above aspects.
Second, China will not accept any State's bargaining on issues of the South China Sea on the basis of an ultra vires and invalid arbitral award. Neither will China accept any claim made by any State with reference to it. I hope that the Philippines will realize its wrongfulness and return to the right track, that is to resolve disputes through negotiations and consultations.
Third, if there is any attempt by some to undermine China's sovereignty, rights and interests on the pretext of the outcome of the Arbitration, China will have no other choice but to respond to that firmly. Thank you.
8. NBC: Some say that one of the motives of the Philippines in initiating the Arbitration is to clarify the legal status of China's nine-dash-line. Now China rejects to participate in the Arbitration and the Philippines will soon have its new President, who seems to have expressed his willingness to have negotiations with China. Does China believe that the nine-dash-line is negotiable? In future bilateral negotiations, would China share with other States the exact coordinates of the nine-dash-line, and is it possible for China to reach bilateral or multilateral treaties with other States through peaceful negotiations?
DG XU Hong: The "nine-dash-line" you mentioned is called by China the dotted line. I want to stress that China's sovereignty and relevant rights in the South China Sea were formed throughout the long course of history and have been maintained by the Chinese Government consistently.
Early in 1948, the dotted line was mapped on China's official map. It was a confirmation of China's rights in the South China Sea formed throughout the history, instead of creation of new claims. For a long time, no State questioned the legitimacy of the dotted line and it also appeared on the official maps of many States.
In recent years, some States started to attack on China's dotted line. The real motive is to intentionally confuse territorial disputes with disputes over maritime delimitation, deny China's sovereignty over South China Sea Islands and their adjacent waters, and cover up their illegal invasion and occupation of part of the maritime features of China's Nansha Islands.
In the Arbitration, the Philippines requested the Arbitral Tribunal to decide whether maritime entitlements claimed by China in the South China Sea exceeded the limits of the UNCLOS. As I said earlier, to answer this question, we need to decide China's territorial sovereignty first. In accordance with international law, territorial sovereignty is the basis of maritime rights. Without first determining China's territorial sovereignty over the maritime futures in the South China Sea, it would not be possible to determine maritime entitlements China may claim in it pursuant to the UNCLOS, let alone determine whether China's maritime claims in the South China Sea have exceeded the extent allowed under the UNCLOS.
On the other hand, we have to note that the dotted line came into existence much earlier than the UNCLOS, which does not cover all aspects of the law of the sea. No matter from which lens we look at this, the Tribunal does not have jurisdiction over China's dotted line. As to negotiations, China has reiterated its hope that the relevant parties should resolve the disputes through consultation and negotiation based on historical facts and international law. The door of negotiation remains open. Thank you.
9. Xinhua News Agency: Some say that China's presence in the South China Sea will impede the freedom of navigation in the region. What's your view on this? And what is your view on the "freedom of navigation operations" carried out by the US naval ships in the South China Sea?
DG XU Hong: Thank you. Speaking of the freedom of navigation, let me first clarify two concepts, one is the "freedom of navigation" in international law, the other is the so-called "freedom of navigation operations" or "freedom of navigation programmes" carried out by the United States. These two concepts are completely different and shall not be confused.
On the freedom of navigation enjoyed by States under international law, especially that in the South China Sea, there has never been any problem. I never heard any State complaining about problems encountered by their commercial ships or companies with the freedom of navigation in the South China Sea. Instead, we see many reports saying that there is no problem with the freedom and safety of navigation in the South China Sea and they are fully guaranteed. Therefore, the problem of the freedom of navigation that is hyped up by some States is something that comes out of their imagination.
When it comes to the "freedom of navigation operations" carried out by the United States, that is a completely different thing. It has its own definition. It was a series of unilateral operations initiated by the United Stated in 1979 to oppose some of the stipulations in the UNCLOS. The purpose is to challenge other States' maritime claims that the United States has deemed excessive. This "freedom of navigation operations" is in itself a violation of the UNCLOS in at least two aspects:
First, it adheres to the old maritime legal regime, viewing the contiguous zone and the exclusive economic zone as "international waters" and equating them with the high seas.
Second, it equates the freedom of navigation with the absolute freedom without any restrictions. It is contrary to the stipulations in the UNCLOS and customary international law on the restrictions of the freedom of navigation. It is also not in line with the principles of peaceful use of the sea, cooperation, and due regard to other States' rights.
The United States claims the so-called right of "innocent passage" in the surrounding maritime areas of the South China Sea Islands that belong to China. As a matter of fact, under the UNCLOS "innocent passage" has its special meanings. By definition it must be innocent and it must be just passage. According to the definition of "innocent" in the UNCLOS, when a foreign ship passes through the territorial sea of a coastal State, it shall not be prejudicial to the peace, good order or security of the coastal State. The UNCLOS enumerates that passage of a foreign ship shall not be considered innocent if it engages in activities including in particular any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, any exercise or practice with weapons of any kind, any act aimed at collecting information to the prejudice of the defence or security of the coastal State, any act of propaganda aimed at affecting the defence or security of the coastal State, or any act aimed at interfering with any systems of communication of the coastal State.
In the UNCLOS, there is no clear provision on whether foreign military ships enjoy the right of innocent passage in other States' territorial sea. Many States in the world require the foreign military ship to obtain prior approval or give prior notification before it enters their territorial sea. The purpose is to safeguard the peace and security of the coastal State. Such stipulations are not intended to limit the right of innocent passage, but rather to ensure that it could be safeguarded under the purposes and principles of the UNCLOS.
There are vast waters for the US naval ships to navigate. But it deliberately has them go through the narrow sea belts in proximity to China's maritime features. It is apparently neither "innocent", nor "passage". They also have admitted that it is a challenge, and a show of force. Up to date, the United States has yet to ratify the UNCLOS, but it is now to challenge the domestic law of other States formulated in line with the UNCLOS. I wonder where they get that right. Such operations carried out by the United States in the name of "freedom of navigation" can easily cause unintended clashes, escalate tensions in this region, and finally undermine the genuine freedom of navigation. Thank you.
Mr. Wang Xining: The briefing today ends here. Thank you for coming.
DG XU Hong: Thank you.
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