◘ EXPOSING vaCHINA◘ The Chinese government firmly opposes the South China Sea Philippine arbitration mentioned (China position paper abstracts and full text) Source: China Military Online ComprehensiveEditor: Zhang Qin 2014-12-07 11:10 1Share to: Legal Secretary, Department of State Treaty Xu talk the Chinese government raised the Philippines Nanhai arbitration jurisdiction issue position papers published People Power Beijing December 17 December 7, 2014, Department of State authorized to issue the Chinese government on the South China Sea arbitration jurisdiction over the issues raised in the Philippines position paper. Legal Secretary, Department of State accepted the treaty Xu Xinhua News Agency reporter on this interview. Reporter: Why did our government going to the Philippines for the South China Sea, referred to arbitration issued a position paper on the issue of jurisdiction? Xu: January 22, 2013, the Philippines unilaterally lift the international arbitration on the South China Sea and the Philippines related problems. Chinese Government firmly opposes, repeatedly stated that China does not accept, does not participate in the solemn stance of the arbitration. Philippines regardless of Chinas strong opposition, insisted on promoting the arbitration proceedings. Some people know the truth, the Chinese do not accept, does not participate in the arbitration expressed doubts. Some people with ulterior motives, one-sided or distorted interpretation of the relevant rules of international law, thereby accuse or insinuate that China does not respect international law, international rules misuse the Chinese for Challenger. For these cases, the Chinese Government issued a position paper to clarify the legal position and justifications China believes the tribunal has no jurisdiction to clarify China does not accept, does not participate in the arbitration sufficient basis in international law, in order to remedy the public. Reporter: The Chinese governments position paper made it clear that the arbitral tribunal for arbitration filed by the Philippines does not have jurisdiction. What is the main basis for this position? Xu: the arbitral tribunal has no jurisdiction over the Philippines filed an arbitration, it is very obvious, position papers mainly from three aspects to be addressed. First, the essence of arbitration matters brought from the Philippines to analyze. Territorial sovereignty issues raised by the nature of arbitration on the Philippines, and the territorial sovereignty beyond the United Nations Convention on the Law of the Sea (hereinafter referred to as the Convention ) category. Under the framework of compulsory dispute convention is limited to deal with the dispute settlement procedures of Convention interpretation or application of the right to deal with the matter, the Convention outside. Second, from which agreement has been reached between the Philippines to analyze. Between China and the Philippines through a series of bilateral and multilateral documents already solved through friendly consultations and negotiations in the South China Sea dispute to reach a consensus, excluding the other way. This is an obligation in international law between the parties. Philippines unilaterally initiated arbitration on the dispute, in violation of the agreement between the two countries, in violation of international law. The third is from its own dispute settlement provisions of the Convention to analyze. Even the Philippines proposed arbitration in some respects may be considered involve relevant Convention interpretation or application problems, but it is also the Philippine domain demarcation integral part, while China was in 2006 according to the second Convention Article 198 to make a statement, the maritime demarcation dispute involving matters such as the exclusion of compulsory dispute settlement procedures applicable to arbitration. Can be clearly seen from the above three aspects of the arbitration tribunal has no jurisdiction over the Philippines made clear. Reporter: There is a view that arbitration is filed in accordance with the provisions of the Philippines, the Convention, the arbitration itself is a peaceful way to resolve disputes; China is a party, the Convention, which has always advocated the peaceful settlement of international disputes, but they do not accept, does not participate in the Arbitration, unconvincing. Will comment on this? Xu: the peaceful settlement of disputes between nations there are many ways, the most important, the highest priority is the way the parties to negotiate directly, rather than arbitration. Under international law, the choice of the way to resolve disputes is the sovereign right of each country concerned. International arbitration is just one way, and in this way must follow the national consent principle, with consent of the parties on the basis of each country. In a bilateral dispute, if one party does not accept, does not participate in the arbitration, the other party shall not be forced to institute proceedings. Although the Convention provides a mandatory dispute resolution procedures, such as compulsory arbitration, but the application of such procedures is conditional and limited. Such a program can only be used to handle disputes concerning the Convention the interpretation or application; choose other means of dispute settlement between the parties if, it takes precedence over the kind of mandatory procedures; one party but also according to the Convention to make a statement, would preclude the application of specific matters compulsory dispute settlement procedures. Philippines filed for arbitration, as previously discussed, is the essence of arbitration does not belong to the Convention adjustment range of territorial sovereignty; have a negotiated settlement of the dispute, the agreement between China and the Philippines; and China has never been to the dispute compulsory program. Thus, the Philippines unilaterally instituted compulsory arbitration of disputes is clearly mandatory abuse Convention provides settlement procedures. The international community should not advocate this approach. China does not accept, does not participate in the Philippines filed an arbitration, the dispute settlement choose to defend the sovereign rights of way, is the exercise of rights conferred by international law, there is sufficient basis in international law. Reporter: core demands of the Philippines in accordance with the rights of the South China Sea involving China advocated by the broken line, the international community, there are some voices hope China under international law to clarify the meaning of the South China Sea intermittent line, and position papers did not answer these questions, I ask how? Xu: In 1948, the Chinese government on the official map plotting the South China Sea intermittent line. This position paper mentioned in the description of the facts relating to the history of the South China Sea when the warp and weft. Chinas position on this issue is consistent and clear. Chinas South China Sea islands and their adjacent waters has indisputable sovereignty. China was formed and developed in the South China Sea sovereignty and interests in the long course of history, there is sufficient historical and legal basis, has been upheld by the Chinese government. Without acceptance, does not participate in the Philippines referred to arbitration under the premise that the Chinese governments position paper illustrates the tribunal does not have jurisdiction to arbitration, rather than on the issue of arbitration matters covered entity to respond. In the introductory part of this position paper made clear instructions. Reporter: It is understood that the tribunal asked the Chinese-Memorial submitted before December 15 this year. Our government chose this time to publish position papers, whether understood as a response to the above requirements tribunal? Published position papers will arbitral tribunal What is the role? Xu: The Chinese Governments position on the arbitration case file is not a defense pleadings, nor is it for the arbitral tribunal in response to a request made. The Government published a position paper, does not mean that China accept or participate in the Philippines filed arbitration. China does not accept the position does not participate in the arbitration will not change. Chinese Government issued a position paper on a point of law and the jurisdiction of the justifications for the arbitration issue, refuted claims from the Philippines legally unjustifiable, but also demonstrates the maintenance and promotion of the international rule of law in Chinas image. I believe that any institution or person truly uphold the rule of law will respect and understand the Chinese governments stance. Reporter: The Chinese government issued a position paper, the South China Sea to deal with the dispute, maintaining peace and stability in the South China Sea in what is positive? Xu: position paper from the law to clarify why the tribunal for the Philippines unilaterally instituted compulsory arbitration does not have jurisdiction, why China does not accept legal basis does not participate in the arbitration. Position paper also stressed that negotiations are always recognized by international law, peaceful settlement of international disputes most direct, most effective and most common. It is to convey a message to the international community: the relevant countries to properly resolve disputes in the South China Sea, impose unworkable, consultation negotiations are the right way. As the position paper points out, through negotiations, China has with most land neighbors to solve the border issue, but also with Vietnam demarcation between the two countries in the northern Gulf of maritime boundaries. Facts have proved that there are differences not terrible, terrible problem is not complicated, as long as the relevant national uphold goodwill and friendly consultations and negotiations on an equal footing, we can enhance mutual trust, build consensus, and gradually properly resolve territorial disputes and maritime demarcation issues. Deal with the South China Sea issue should be. China urged to return to the Philippines as soon as possible to resolve the dispute through negotiations on the right track. China is willing to work together, respecting the historical facts and international law on the basis of the differences through negotiations with the relevant countries properly, seek win-win cooperation and jointly safeguard peace and stability in the South China Sea. The Government of the Republic of the Philippines, Peoples Republic of China on the South China Sea arbitration case mentioned Summary Jurisdiction of the position paper People Power Beijing December 17 December 7, 2014, Department of State authorized to issue the Government of the Republic of the Philippines, Peoples Republic of China on the South China Sea arbitration jurisdiction issues raised position paper. The full position paper of the Foreign Ministry website (fmprc.gov.cn), position papers now published a summary as follows: One January 22, 2013, Ministry of Foreign Affairs of the Republic of the Philippines, Peoples Republic of China Embassy in the Philippines said the note, the Philippines and the Philippines to bring on compulsory arbitration of disputes concerning the South China Sea Ocean jurisdiction. February 19, 2013, the Chinese government to return note and accompanying Notice of Arbitration of the Philippine government. Chinese government has repeatedly solemnly declared that China does not accept, does not participate in the Philippines filed arbitration. This position paper seeks to clarify the tribunal for arbitration filed by the Philippines does not have jurisdiction. This position paper does not imply recognition of the Philippines, China views and opinions in any way. This position paper does not mean that China accept or participate in the Philippines filed arbitration. Two Philippines essence arbitration matters is part of the territorial sovereignty of the South China Sea islands and reefs, and does not involve the interpretation or application of the United Nations Convention on the Law of the Sea (hereinafter referred to as Convention). Chinas South China Sea islands and their adjacent waters has indisputable sovereignty. Since the 1970s, the Philippines, part of the South China Sea islands and reefs of unlawful occupation or make illegal claims, and engage in resource development and other illegal activities related to the reefs and adjacent waters. Philippines aforementioned violation of the UN Charter, and international law and serious violations of territorial sovereignty and maritime rights and interests of China, the Chinese government has consistently opposed, has made solemn representations and protest. Philippines arbitration matters to which they refer are summarized into three categories: First, China in the South China Sea claims inconsistent historic rights and the Convention; the second is based on a number of rocks China Sea, low-tide elevations and proposed 200-mile underwater feature even More claims and the Convention inconsistent; Third, China unlawful interference with the rights of the Philippines-based Convention enjoyed and exercised. On the first class arbitration, it is clear that the Philippines is the core proposition maritime rights in the South China claims beyond convention allows. However, the countrys territorial sovereignty is the basis of their maritime rights, which is a general principle of international law. Only first determine Chinas territorial sovereignty in the South China Sea, in order to determine the scope of Chinas marine rights in the South China Sea. On the second class arbitrations, China believes that the nature and part of the South China Sea islands and reefs marine rights and sovereignty are inseparable. About a third class arbitrations, China believes that based on the sovereignty and maritime rights with respect to the sovereignty of islands and reefs enjoyed enjoyed on reefs, the relevant Chinese activities in the South China Sea proper legal; advocate Chinas activities in the Philippines to enter the waters under its jurisdiction, but the ruling Such matters must first determine the territorial sovereignty of the South China Sea islands and reefs and complete the relevant maritime delimitation. In the case of the Philippines requires sovereignty over the islands and reefs of uncertainty related provisions to apply the Convention to determine the Chinese maritime rights in the South China Sea, and made a series of arbitration claims, contrary to the general principles of international law to resolve the dispute in accordance with international maritime and international judicial practice. Any arbitration tribunal requests to determine the Philippines, will inevitably involve the relevant case reefs and other reefs in the South China Sea sovereignty over direct or indirect determination, will inevitably produce virtually maritime demarcation of effect. The problem is not within the scope of territorial sovereignty, the Convention adjustment. Referred to an arbitration tribunal had no jurisdiction in the Philippines. Three Settlement of disputes in the South China Sea through negotiations is an agreement between China and the Philippines, the Philippines has no right to unilaterally lift the compulsory arbitration. China on issues concerning territorial sovereignty and maritime rights, has consistently adhered to the countries directly concerned by the peaceful settlement of disputes by means of negotiations. Resolve their disputes in the South China Sea has long been a consensus through friendly consultations and negotiations between China and the Philippines. A series of bilateral documents between China and the Philippines clearly shows that the parties agreed to resolve disputes in the South China Sea or the commitment through friendly consultations and negotiations. China and the Philippines are signatories to the Declaration on the Conduct of Parties in the South China Sea is also clear that, by sovereign states directly concerned through friendly consultations and negotiations, by peaceful means to resolve their territorial and jurisdictional disputes. In the Philippines a series of bilateral documents and the relevant provisions Declaration on Conduct of Parties in the South China Sea, the same strain, constitute an agreement between China and the Philippines. According to assume the obligation of both countries to resolve the dispute through negotiation, and the exclusion of third-party dispute settlement procedures. In this case, in accordance with the provisions of Article 280 and Article 281, such as the Convention, the dispute should be resolved through negotiations, and not to resort to compulsory arbitration and other dispute settlement procedures. At present, China and ASEAN countries including the Philippines, have established working mechanism to actively implement the Declaration on the Conduct of Parties in the South China Sea, and on the South China Sea Code of Conduct to start negotiations, to maintain the stability of the South China Sea situation and create conditions for the final peaceful settlement of the South China Sea issue . Philippines instituted compulsory arbitration procedures, with China and the ASEAN countries, contrary to the common aspiration and effort, as its purpose is not to seek a peaceful solution as advertised Philippines South China Sea issue, but trying to exert political pressure on China through arbitration order through the Convention The so-called interpretation or application to achieve negate Chinas legitimate rights in the South China Sea, according to their ideas and willingness to unilaterally resolve the South China Sea issue purposes. The Chinese, of course unacceptable. Four Even if the arbitration involving the Philippines proposed Convention issues related to the interpretation or application, but also constitute an integral part of maritime delimitation, but China in 2006 has been declared applicable to exclude the mandatory dispute settlement procedures, shall be submitted to arbitration. August 25, 2006, China submitted in accordance with the Convention two hundred and ninety eighth of the Ordinance to the Secretary a statement maritime delimitation disputes and other matters, the Chinese government does not accept the provisions of the Convention any compulsory dispute settlement procedures. Maritime delimitation is a whole system works. International law applicable to maritime delimitation, both including the Convention, including general international law. Maritime delimitation involves both the right foundation, reefs effectiveness and other issues, but also involves the demarcation principles and methods, as well as to achieve an equitable solution for all relevant factors must be considered. Arbitration Philippines Philippine constitution proposed delimitation domain integral part of the relevant rights only within the framework of the Philippine domain demarcation, with the parties based on a long history of general international law and practice Convention enjoyed by and interests, and to be considered. The Philippines is not required on the surface of demarcation, but the arbitration tribunal ruled that part of the reef is part of the exclusive economic zone and the continental shelf of the Philippines, China ruled unlawful interference with the enjoyment and exercise of sovereign rights of the Philippines for its exclusive economic zone and continental shelf, and so on. These arbitrations actually covers the main steps maritime delimitation and the main problem, if the substance of the arbitral tribunal to consider the specific claims of the Philippines, would be tantamount to indirectly the maritime delimitation. States parties under two hundred and ninety eighth of convention to the exclusion of the statement should be respected, the Philippines trying to circumvent Chinese exclusion statement filed an abuse of the practice of compulsory arbitration of disputes Convention provides settlement procedures. 5 China to choose the right way to resolve the dispute should be fully respected, China does not accept, does not participate in the arbitration filed by the Philippines has sufficient basis in international law. Under international law, States have to choose the right way to resolve the dispute. The relevant judicial or arbitral bodies in the exercise of their power to determine the jurisdiction of, States parties must fully respect the right to choose their own way of dispute resolution. Philippine reef knowingly territorial sovereignty essentially on his proposed arbitration, knowing that China never agreed to the dispute to compulsory dispute settlement procedures, knowing the existence resolve the dispute through negotiations an agreement between China and the Philippines, but also unilaterally lift compulsory arbitration, in violation of the relevant provisions of the Convention, and does not contribute to the peaceful settlement of disputes. In view of the statement made by the exclusion of play above, and based on the arbitral tribunal has no jurisdiction over the case is clear, the Chinese government has decided not to accept, does not participate in the arbitration proceedings to defend the sovereign rights of Chinas independent choice of dispute resolution, to ensure China based on the Convention due effect, maintaining the authority and seriousness of international maritime law system. Six South China Sea issue involving multiple countries, plus a variety of complex historical background and sensitive political factors, the need for patience and political wisdom of the parties to achieve a final settlement. China insists that all parties concerned should respect the historical facts and international law on the basis of seeking a proper solution through consultation and negotiation. In the problem to be solved before the parties should engage in dialogue and seek cooperation and safeguard peace and stability in the South China Sea, and constantly enhance mutual trust and create conditions for the final solution to the problem. Philippines unilaterally instituted the practice of arbitration, will not change China Sea islands and their adjacent waters of sovereignty over history and facts, do not shake Chinas sovereignty and maritime rights and interests of determination and will not affect China through direct negotiations to resolve the disputes with countries in the region as well as to jointly safeguard peace and stability in the South China Sea policies and positions. Government of Peoples Republic of China on the South China Sea issue referred to arbitration jurisdiction of the Republic of the Philippines, the position paper (December 7, 2014) I. Introduction 1. January 22, 2013, Ministry of Foreign Affairs of the Republic of the Philippines, Peoples Republic of China Embassy in the Philippines note that in accordance with Article 287 of the Philippines in 1982, United Nations Convention on the Law of the Sea (hereinafter referred to as the Convention) and Annex VII The provisions relating to the South China Sea dispute on the Philippines maritime jurisdiction to submit the notice of arbitration, instituted mandatory arbitration. February 19, 2013, the Chinese government to return note and accompanying Notice of Arbitration of the Philippine government. Chinese government has repeatedly solemnly declared that China does not accept, does not participate in the Philippines filed arbitration. 2. This position paper seeks to clarify the tribunal for arbitration filed by the Philippines does not have jurisdiction, the Philippines does not comment on matters brought to the substantive issues involved in arbitration. This position paper does not imply recognition of the Philippines, China views and opinions in any way, regardless of whether the Philippines concerning opinions or ideas expressed in this position paper. This position paper does not mean that China accept or participate in the Philippines filed arbitration. 3. This position paper describes: the essence of the matter to arbitration Philippines is part of the territorial sovereignty of the South China Sea islands and reefs, out of adjustment, the Convention, and does not involve the interpretation or application of the Convention; and a negotiated settlement of the dispute is the China and the Philippines through bilateral documents and agreements Declaration on Conduct of Parties in the South China Sea, which reached the Philippines and the Philippines unilaterally submit the dispute to compulsory arbitration in violation of international law; even if the arbitration involving the Philippines raised about the Convention the interpretation or application of the problem, China and the Philippines also form an integral part of maritime delimitation, while China has been under the Convention to make a statement in 2006, the maritime demarcation dispute involving matters such as the exclusion of compulsory dispute settlement procedures applicable to arbitration. Therefore, the arbitral tribunal instituted arbitration Philippines obviously has no jurisdiction. Based on the above, and given the country has the right to choose the means of dispute settlement, China does not accept, does not participate in the Philippines filed an arbitration there is sufficient basis in international law. Second, the arbitration matters is the essence of the Philippine territorial sovereignty of the South China Sea islands and reefs part, explain not involve the Convention or application 4. Chinas South China Sea islands and their adjacent waters has indisputable sovereignty. Chinese activities in the South China Sea more than 2,000 years of history. China first discovered and named the South China Sea islands and development operations, the first and continued implementation of the sovereign jurisdiction of the South China Sea Islands. 1930s to 1940s, during the Japanese war of aggression against the illegal occupation of the South China Sea islands and reefs. After World War II, the Chinese government resumed the exercise of sovereignty over the South China Sea islands, military officials dispatched warships to the South China Sea islands and reefs take hold reception ceremony marked the tree monument legislation, troops stationed geographic measure, in 1947 on the South China Sea Islands has been re-named, and in 1948 on the public offering of the official map plotting the South China Sea intermittent line. Peoples Republic of China since October 1, 1949 inception, the Chinese government has always adhered to and take concrete steps to safeguard the sovereignty of the South China Sea islands. 1958, the government statement on the territorial waters of the Peoples Republic of China and the 1992 Peoples Republic of Chinas territorial waters and the Contiguous Zone are clearly defined, Peoples Republic of China, including the territory of the Dongsha Islands, Paracel Islands, Zhongsha Islands and Nansha Islands. These actions have repeatedly reaffirmed the territorial sovereignty and maritime rights and interests related to China in the South China Sea. 5. Before the 1970s, the Philippines has clearly defined laws on its territory, not involved in the South China Sea reefs. 1935 Constitution of the Republic of the Philippines, the first national territory clearly states: territory, including the Philippines based on December 10, 1898 the United States and Spain concluded Treaty of Paris ceded to the United States, the scope of the Article III of the Treaty all the territory, together with all the islands included in the treaty and the treaty November 7, 1900 in Washington, the United States and Spain concluded January 2, 1930 the United States and Britain concluded, and the exercise of jurisdiction by the current government of all the Philippine Islands territory. According to the above provisions, the territorial scope is limited to the Philippines Philippine Islands, does not involve the South China Sea reefs. 1961 on the establishment of the Philippine Baselines Act (Act No. 3046 of the Republic of the Philippines) reaffirmed the 1935 Constitution of the Philippines on its territory. 6. Since the 1970s, the Philippines and the illegal occupation of Chinas Nansha Islands Nanshan Island, Flat Island, islands in the industry, Loaita Island, Northeast Cay, West York Island, double yellow sandbanks and reefs and other reefs commander; The Chinese part of the Spratly Islands and illegally declared the so-called Kalayaan island group on a wide range of these reefs and surrounding waters claim of sovereignty; and China Huangyan Island Sand Islands territorial claims made illegal. Philippine Islands and their adjacent waters is also related illegal activities engaged in resource development. 7. Philippines aforementioned violation of the UN Charter, and international law, a serious violation of Chinas territorial sovereignty and maritime rights and interests, and is illegal and invalid. The Chinese Government has always firmly opposed, has made solemn representations and protest. 8. Philippines arbitration matters to which they refer are summarized as the following three categories: First, China is outside the scope of the rights of the Convention provisions, inconsistent on the waters, seabed and subsoil Kau line (ie, the South China Sea intermittent line) within the claimed historic rights and the Convention ; Second, Chinas South China Sea on the basis of a number of rocks, low-tide elevations and proposed 200-mile underwater feature even more claims and the Convention inconsistent; Third, China has the right to claim and exercise of unlawful interference with the Philippines in the South China based on the Convention the enjoyment and exercise of sovereign rights, jurisdiction and navigational rights and freedoms. 9. Philippines arbitration essence of the above matters are part of the territorial sovereignty of the South China Sea islands and reefs, out of adjustment, the Convention, and does not involve the interpretation or application of the Convention in. The arbitration tribunal had no jurisdiction to make the Philippines. 10. With regard to the first category of the Philippines proposed arbitration, it is clear that the Philippines is the core proposition maritime rights in the South China claims beyond convention allows. However, no matter what legal follow logic, only first determine Chinas territorial sovereignty in the South China Sea, in order to determine the rights of China in the South China Sea maritime claims is beyond the Convention to the extent permitted. 11. The countrys territorial sovereignty is the basis of their maritime rights, which is a general principle of international law. ICJ noted that right from the coastal ocean to the land of sovereignty, which can be summarized as the land ruled oceans principle (2001 Qatar - Bahrain case judgment, paragraph 185, see also 1969 North Sea Continental Shelf Case paragraph 96 of the judgment and in 1978 the Aegean Sea Continental Shelf judgment, paragraph 86), so as to determine the situation must land territory coastal ocean right starting point (2001 Qatar - Bahrain case judgment, paragraph 185, 2007 Nicaragua - Honduras case judgment paragraph 113 ). International Court of Justice also stressed that the state of the continental shelf and exclusive economic zone based on the principle of the right to rule the land of the ocean, exercise of the rights of the land is a country to extend its territorial sea part of the legal origin (2012 Nicaragua - the first judgment in the case of Colombia 140). 12. Preamble Convention at the outset that recognizes the need to pass this Convention, in due regard to all the circumstances of national sovereignty, the establishment of a legal order for the oceans. Obviously, with due regard to the sovereignty of all nations is applicable convention to determine the rights of a party to the premise of the ocean. 13. In the present case, if you are unsure of the territorial sovereignty of China South China Sea islands and reefs, the tribunal will not be able to determine the scope of China on the basis of the marine rights convention in the South China Sea can be argued, but no way to determine the rights of China in the South China Sea maritime claims exceeds allowed range convention. However, the problem is not within the scope of territorial sovereignty, the Convention adjustment. 14. The Philippines is also very clear that the arbitral tribunal under Convention Article 287 and Annex VII of no jurisdiction to territorial disputes. In order to circumvent the legal obstacles to the Philippines, filed for arbitration in accordance with the manufacture, deliberately brought the essence of their demands arbitration careful packaging. The Philippines has repeatedly said he does not seek to determine which side of the arbitral tribunal both countries claimed sovereignty over the islands and reefs, only requires the tribunal to marine rights in the South China advocated whether the provisions of the Convention, the determination to make arbitration look it seems just about the interpretation or application of the Convention, and does not involve the issue of territorial sovereignty. However, the Philippines can not conceal their packaging to draw substantive arbitration is part of the South China Sea islands and reefs of the territorial sovereignty. 15. With regard to the second category arbitration matters raised by the Philippines, China believes that the nature and part of the South China Sea islands and reefs marine rights and sovereignty are inseparable. 16. First, only to determine the sovereignty of islands and reefs, ocean reefs to determine claims based on compliance with the Convention. Marine rights l982 17. Convention provisions of the relevant countries are given the territorial sovereignty of the land. Out of the national sovereignty, ocean reef itself does not have any rights. Only the relevant national sovereignty over islands and reefs, we can Convention - based on claims made related to ocean reefs rights. In determining the ownership of the territory under the premise that if the maritime claims of other countries State whether the provisions of the Convention, the question or made the right overlapping maritime claims, will produce a dispute about the Convention interpretation or application. If the reefs of sovereignty over yet, based on a countrys maritime claims reefs whether the provisions of the Convention would not constitute a specific and may be submitted to arbitration disputes true. 18. In the present case, the Philippines does not recognize Chinas sovereignty over the relevant reefs, intended to deny claims in accordance with relevant Chinese ocean reefs any fundamental right qualifications. In this case, the Philippines first request the arbitral tribunal to determine whether Chinas maritime claims compliance with the Convention is the cart before the horse. Any international judicial or arbitral institutions in hearing cases concerning disputes reefs, never apply the provisions of the Convention in an uncertain situation concerning sovereignty over islands and reefs in advance determine the rights of these ocean reefs. 19. Secondly, in the Spratly Islands in the Philippines just pick out a few reefs, request the arbitral tribunal to rule on its maritime rights, essentially negate Chinas territorial sovereignty over the Nansha Islands. 20. Spratly includes numerous reefs. China has always been for the entire Spratly Islands, and not only among the few reefs sovereignty. Chinese government to review land and water maps published by the Commission in 1935, the South China Sea islands map, the Chinese government announced in 1948, South China Sea islands map are now known as the Spratly Islands and the Dongsha Islands, Xisha and Zhongsha Islands included Chinese territory. 1958, the government statement on the territorial waters of the Peoples Republic of China, pointed out, Peoples Republic of Chinas territory, including the Spratly Islands. Geographical Names Board announced the 1983 China Sea islands part of the standard names, including the Spratly reefs. 1992 Peoples Republic of Chinas territorial waters and the Contiguous Zone is also clear that the Peoples Republic of Chinas land territory, including the Spratly Islands. 21. April 14, 2011, the Permanent Mission of China to the United Nations addressed to the Secretary of the United Nations concerning the South China Sea issue first CML / 8/2011 also pointed out in a note: In accordance with United Nations Convention on the Law of the Sea, 1992 Chinese People Republic of the Territorial Sea and the Contiguous Zone, and the 1998 Peoples Republic of China Exclusive Economic Zone and Continental Shelf, the relevant provisions of Chinas Nansha Islands territorial sea, exclusive economic zone and continental shelf. Apparently, according to the Convention OK Chinese Spratly Islands marine rights, we must consider all the reefs in the archipelago. 22. Philippines in the Nansha Islands in the arbitration demand made cut only requires the determination of their claims, Chinese occupation or control of Ocean reefs right, and deliberately did not mention the other reefs in the Spratly Islands, including the still Philippines illegally occupied or claimed reefs aimed negate Chinas sovereignty over the entire Spratly Islands, Philippines, Africa and France to deny the fact that China occupied or claimed Spratly part reefs, thus distort the nature and scope of the dispute over sovereignty over the Nansha Islands and the Philippines. The Philippines also deliberately largest Spratly island China Taiwan stationed - Taiping Island excluded Chinese occupation or control of the reefs, a serious violation of the one-China principle, a violation of Chinas sovereignty and territorial integrity. Obviously, the essence of such arbitration is a dispute concerning the territorial sovereignty of the Philippines. 23. Finally, the low-tide elevations can be significant, according to the territory itself is a question of territorial sovereignty. 24. The Philippines believes that its arbitration appeal involves several reefs are low-tide elevations, can not be, according to the territory. For these reefs belong to low-tide elevations, this position paper will not comment. It should be noted that, regardless of what the nature of these reefs have, Philippines own since the 1970s has been on these reefs illegal claims of territorial sovereignty. Philippines June 11, 1978 promulgation of Presidential Decree No. 1596, on the islands and surrounding waters, including a wide range of the above, including the Spratly Islands and part of the seabed, subsoil, claims sovereignty over its continental margin, and The area established as a city of Palawan province, named Kalayaan. Although the March 10, 2009 by the Philippine Republic Act No. 9522 provides that Kalayaan island group (ie, part of China Nansha Islands reefs) and Scarborough Shoal (ie China Huangyan Island) marine area and the Convention Article 121 (ie regime of islands) consistent, but that provision is only the inside of the regions maritime features marine claims have been adjusted and did not involve the Philippines for these maritime features territorial claims, including low-tide elevations. Philippine Mission to the UN in April 5, 2011 addressed to the Secretary of the United Nations No. 000 228 note also clear: Kalayaan island group in the Philippines constitutes an integral part of the Republic of the Philippines has to Kalayaan island group of geological formations. sovereignty and jurisdiction. Philippines still maintains its claims to the Spratly Islands in the 40 islands and reefs, including the Philippines called low-tide elevations. Visible, the Philippines can not be made low-tide elevations, according to the territory, but want to deny Chinas sovereignty over these islands and reefs, so that these reefs may be placed under the sovereignty of the Philippines. 25. According to the low-tide elevations can be territorial sovereignty over the territory itself is a problem, not the interpretation of convention or application problems. Convention no information on low-tide elevations can be specified according to the territory. International Court of Justice in 2001, Qatar - Bahrains ruling in the case made it clear that: A treaty of international law can be considered for low-tide elevations territorial issues remain silent court does not know the existence of broad national unity and practice, which may produce an explicit. allow or exclude the low-tide elevations, according to customary law of the territory (judgment, paragraph 205). Here, of course, international law and treaties, including the 1994 already in force, the Convention. International Court of Justice in 2012 Nicaragua - Colombia judgment in the case, although that low-tide elevation can not be, according to territory (paragraph 26 of the judgment), but did not indicate the legal basis for this assertion, low-tide elevations when the law as part of the archipelago is not involved position, but also not involved in marine areas within a specific low-tide elevations of sovereignty or sovereign rights advocate in the history of the formation. In any case, the International Court did not apply the above judgment Convention in that case. It can be as low-tide elevation is not about territory, the Convention the interpretation or application problems. 26. With regard to the third category of the Philippines proposed arbitration, China believes that Chinas actions in the waters near the Nansha Islands and Huangyan Island legitimacy is based on Chinas sovereignty and maritime rights enjoyed based on relevant reefs reefs sovereignty enjoyed. 27. The Philippines claims that the rights advocated by China in the South China Sea and the exercise of unlawful interference with the Philippines based on the Convention the enjoyment and exercise of sovereign rights, jurisdiction and navigational rights and freedoms. The premise of the Philippines claimed that the scope of the jurisdiction of the Philippine Sea is clear without controversy, Chinas activities into the waters under the jurisdiction of the Philippines. However this is not the case. Maritime delimitation in the Philippines has not been carried out. Philippines advocate before the ruling, we must first determine the relevant territorial sovereignty reefs, and the completion of the relevant maritime delimitation. 28. Of particular note is that China has always respected the States in accordance with international law in the South China enjoy freedom of navigation and overflight freedom. 29. In summary, the Philippines, the relevant requirements in the case of uncertain sovereignty over islands and reefs, the provisions apply to convention to determine the Chinese maritime rights in the South China Sea, and made a series of arbitration claims, contrary to the settlement of international maritime dispute the general principles of international law and international judicial practice is based. Any arbitration tribunal requests to determine the Philippines, will inevitably involve the relevant case reefs and other reefs in the South China Sea sovereignty over direct or indirect determination, will inevitably produce virtually maritime demarcation of effect. Therefore, China believes that the tribunal does not have jurisdiction on the case obviously. Third, to resolve disputes in the South China Sea through negotiations is an agreement between China and the Philippines, the Philippines has no right to unilaterally instituted compulsory arbitration 30. China on issues concerning territorial sovereignty and maritime rights, has consistently adhered to the peaceful settlement of disputes by the countries directly concerned by way of negotiation. To resolve disputes in the South China Sea between the two countries and the Philippines through friendly consultations and negotiations has also been a consensus. 31. August 10, 1995 Peoples Republic of China and the Philippines, the Republic of South China Sea issue joint statement on consultation and other areas of cooperation that the parties agree to comply with the following principles: the dispute through consultation should be on the basis of equality and mutual respect of Peace be resolved amicably (first point); The two sides pledged to cooperate in a gradual manner, final negotiations to resolve their disputes (point III); to resolve the dispute should be directly related to the country, does not affect the freedom of navigation in the South China Sea (p. eight). 32. March 23, 1999, confidence-building measures in the Philippines working group meeting of the Joint Communique that the two sides pledged to continue to seek compliance with the method of understanding to resolve their differences through friendly consultations (Joint Communique paragraph 5). Both sides believe that negotiations between the Philippine channel is unimpeded. They agreed to resolve the dispute through peaceful negotiation. (Joint Communique para. 12). 33. May 16, 2000 Peoples Republic of China and the Government of the Republic of the Philippines government joint statement on the framework of bilateral cooperation in the 21st century ninth point states: The two sides committed to maintaining peace and stability in the South China Sea, agreed to generally accepted principles of international law, including the 1982 United Nations Convention on the Law of the Sea, to promote the peaceful settlement of disputes through bilateral friendly consultations and negotiations. Both sides reaffirmed their commitment to China and the Philippines in 1995 Joint Declaration on the South China Sea. 34. April 4, 2001, China - Philippines third expert group meeting on confidence-building measures joint press statement. The fourth point states: The Parties recognize that the two countries will discuss bilateral consultation mechanism established by the South China Sea cooperation is fruitful and a series of understandings and consensus reached by the two sides to maintain the healthy development of Sino-Philippine relations and peace and stability in the South China Sea to play a constructive role. 35. The consensus between China and the Philippines on a negotiated settlement of the dispute in a multilateral cooperation documents have also been confirmed. November 4, 2002, when he was appointed Deputy Minister of Foreign Affairs Wang Yi as the Chinese government representatives and representatives of governments of ASEAN, including the Philippines signed the Declaration on the Conduct of Parties in the South China Sea (hereinafter referred to as the manifesto). Article clearly stipulates manifesto, commitment of the parties concerned in accordance with generally recognized principles of international law, including the 1982 United Nations Convention on the Law of the Sea , through friendly consultations and negotiations to a peaceful solution to the sovereign states directly concerned by their territories and jurisdictional disputes. 36. manifesto was signed, the two leaders also reaffirmed the Philippines to resolve disputes through dialogue. September 3, 2004, when he was President of the Philippines Gloria Macapagal-Arroyos state visit to China, the two sides issued the Peoples Republic of China and the Government of the Republic of the Philippines government Joint Press, Both sides agreed think positive as soon as possible between China and ASEAN signed in 2002 Declaration on the Conduct of Parties in the South China Sea has helped the South China Sea into a sea (Joint Press para. 16) cooperation. 37.2011 年 August 30 to September 3, Philippine President Benigno S. Aquino state visit to China. September 1, the two sides issued a Joint Statement of the Republic Peoples Republic of China and the Philippines, reiterated the handle disputes through peaceful dialogue, and reaffirm respect and abide by China and ASEAN countries signed in 2002 Declaration on the Conduct of Parties in the South China Sea. (paragraph 15 of the Joint Declaration). Joint Statement Article IV confirmed the negotiations to resolve the dispute manifesto. 38. China and the Philippines bilateral documents in reference to a negotiated settlement of the dispute, the repeated use of the word agree to establish the intention of the relevant obligations between the two is obvious. Manifesto Article IV use of the promise of the term, which is the protocol commonly used to determine the words of the parties obligations. International Court of Justice in 2007, Bosnia and Herzegovina v. Serbia and Montenegro on the case applies Convention on the Prevention and Punishment of Genocide, the judgment of the promise of the term following a clear explanation: promise ordinary meaning of the word is given to a formal promise to restrain themselves or make themselves constrained, is to give a guarantee or promise to agree to accept an obligation. It is the obligation of the Parties to the Treaty provisions often appear ...... It is not only being used to promote or represent a target species (judgment paragraph 162). Furthermore, under international law, regardless of the name of a file and form, as long as it created the rights and obligations of the parties to such rights and obligations will be binding (see 1994 Qatar - Bahrain case, paragraph 22 of the decision to paragraph 26; 2002 Cameroon - Nigeria case judgment, paragraph 258, and paragraph 263, paragraph 262). 39. The relevant provisions of the above-mentioned China and the Philippines as well as the bilateral documents manifesto of the same strain, constitute an agreement between China and the Philippines. According to assume the obligation of both countries to resolve the dispute through negotiations. 40. bilateral documents in the Philippines and the Declaration on Article reiterated a negotiated peaceful settlement of the South China Sea disputes, and provisions must be made between sovereign states directly concerned, apparently ruled out a third-party dispute settlement procedures. Preceding August 10, 1995 Peoples Republic of China and the Philippines, the Republic of South China Sea issue joint statement on negotiations and other areas of cooperation. The third point that Both sides have pledged to cooperate in a gradual manner, final negotiations to resolve their disputes, where the final The word apparently stressed that negotiations between the two sides dispute the only solution, there is no intention of the parties to select a third-party dispute settlement procedures. Sino-Philippine bilateral documents and the manifesto Article Although not expressly use the exclusion of other programs, the statement, but as 2000 Southern Bluefin Tuna arbitration award called: the lack of an express exclusion of any program [provision] is not decisive (ruling para. 57). As mentioned earlier, on issues concerning Chinas sovereignty and maritime rights territories, has consistently adhered to the peaceful settlement of disputes by the countries directly concerned by way of negotiation. In the development process, and the above-Philippine bilateral documents manifesto, by Chinas stance has always been clear that the Philippines and other interested parties are also very clear. 41. Therefore, the dispute in the South China Sea and the Philippines all issues, including the Philippines proposed arbitration, the parties agree that the dispute settlement negotiations but ruled out any other way. 42. Even if the arbitration case involving the Philippines proposed to explain the Convention or application issues between China and the Philippines have agreed to a negotiated settlement of the dispute, Section II of Part XV compulsory dispute Convention settlement procedure does not apply. 43. Convention Article 280 states: Nothing in this Convention shall prejudice any State Party to the Agreement at any time by any peaceful means of their own choice to resolve a dispute concerning the interpretation or application of this Convention, among them the right to . Convention Article 281, first paragraph: As the parties concerning the interpretation or application of this Convention, States parties to the dispute, as has been the agreement by peaceful means of their own choice to seek to resolve the dispute, the only In resorting to this method has not yet been resolved and agreement between the parties does not exclude other program under any circumstances, the only procedure prescribed in this section apply. 44. Prior to analysis, China and the Philippines have chosen to resolve the dispute through negotiation, through bilateral and multilateral agreements, negotiations have not set any deadline, but exclude the application of any other programs. In this case, under the above provisions of the Convention, apparently related to a dispute should be resolved through negotiations, and not to resort to compulsory arbitration and other dispute settlement procedures. 45. The Philippines claims that in 1995, after China and the Philippines on the matters mentioned in the request for arbitration the Philippines to exchange views on many occasions, but failed to resolve the dispute; there are reasonable grounds to believe the Philippines is pointless to continue negotiations, and thus the right to initiate arbitration. In fact, so far, China and the Philippines would have never been referred to arbitration in the Philippines to negotiate. 46. Under international law, a general, not to dispute settlement for the purpose of exchanging views do not constitute negotiations. 2011 International Court of Justice in Georgia - Russian Federations decision in the case, said the negotiations is not only directed against the interests of the parties or legal advice, or a series of accusations and refuted opposition claims or exchange, ...... at least require negotiation dispute to discuss the party has a good faith effort to resolve the dispute (judgment, paragraph 157), and substantive negotiations on the substance of the dispute must be related with each other, the latter must also be associated with the obligations under the relevant treaties (judgment 161 segment). 47. The number of countries involved in the South China Sea issue, the solution is not easy. Still relevant parties to create the conditions for the final negotiations to resolve the South China Sea issue. In this context, between China and the Philippines to exchange views on the dispute, mainly to deal with unexpected events that occur in the disputed area around the prevention of conflicts, reduce friction, to stabilize the situation, measures to promote cooperation and carried out. Even according to evidence cited the Philippines, which is far from the exchange of views constitute negotiations. 48. In recent years, China has repeatedly proposed the establishment of the Philippines on the issue of the Philippine regular consultation mechanism, the proposal, but the Philippines has not been answered. September 1, 2011, the two sides issued a Joint Statement of the Republic Peoples Republic of China and the Philippines, the two sides renewed their commitment to resolve the South China Sea disputes through negotiations. But not until the official start of negotiations, but in the Philippines, April 10, 2012 to use warships to enter the Chinese island waters snatch Chinese fishing boats and fishermen. For the provocative actions of the Philippines, China was forced to take the counter-measures to safeguard sovereignty. Since then, China once again to the Philippines-Philippine proposal to restart the consultation mechanism to build confidence measures, the Philippines has yet to get a response. April 26, 2012, the Philippine Department of State notes Chinese Embassy in the Philippines, proposed to submit the third party Huangyan Island Judiciary, did not express the will of any negotiations. January 22, 2013, that the Philippines unilaterally instituted mandatory arbitration procedures. 49. Prior to the Philippines to exchange views about the South China Sea issue carried out, it is not mentioned in the Philippines for arbitration. For example, the Philippines, citing Chinas Foreign Ministry issues statement on Huangyan Island May 22, 1997, in order to prove the existence of a dispute between China and the Philippines Huangyan Island marine rights and exchanged views; but purposely did not invoke the Philippines is Chinas diplomacy Ministry in a statement clearly states: The problem is that Huangyan Island territorial sovereignty, development and utilization of marine EEZ jurisdiction issue, both the nature and the applicable legal rules are different, can not be confused with the Philippines trying. maritime jurisdiction violated Chinas territorial sovereignty attempt is totally untenable. The meaning of this statement is not an excuse for the Philippines Huangyan Island is located in the exclusive economic zone of its claims, negate Chinas territorial sovereignty over the island. Visible, and the core exchange of views is the issue of sovereignty. 50. Also note that the Philippines tried to explain matters to exchange views China and the Philippines since 1995, is about the Convention the interpretation or application of the problem, but this is not true. Historically, the Philippines on June 17, 1961 enactment of Republic Act No. 3046, will be located outside of the outermost islands of the Philippine archipelago, the vast American West from 1898 Treaty of Paris and other international treaties to determine boundary lines within the Philippines Philippine waters included in the territorial waters, territorial sea width considerably more than 12 sea miles. Philippines on June 11, 1978 promulgation of Presidential Decree No. 1596, the so-called Kalayaan island group (ie, part of China Spratly islands and reefs) and its surrounding waters a wide range of seabed, subsoil, and over the continental margin claims sovereignty. Philippine own admission, until Republic Act No. 9522 March 10, 2009 through the Philippines began their domestic law and the Convention in harmony in order to completely abandon the Convention inconsistent claims ocean. The Act provides for the first time, Kalayaan island group (ie, part of China Nansha Islands reefs) and Scarborough Shoal (ie China Huangyan Island) marine area and the Convention Article 121 ( That island system) consistent. Since the Philippines himself believes that until 2009 it began to abandon the past, and the Convention inconsistent marine claims, then what about China and the Philippines since 1995, has already associated with this arbitration, the Convention the interpretation or application of exchange views on issues.
Posted on: Mon, 08 Dec 2014 03:50:12 +0000
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