China hardens after illegal tribunal ruling on South China Sea

In ignoring the verdict on the South China Sea, Beijing is following precedents by great powers as no permanent member of the UN Security Council has ever complied with a ruling by the Arbitral Tribunal on an issue involving the Law of the Sea.

 

Arbitration award

CHINA’S resolve on its sovereign claim to most of the South China Sea appears to harden after an international tribunal ruled against this new superpower in Asia.

On Tuesday, the international arbitratry at the Hague backed the Philippines’ argument that there was no legal basis for Beijing’s maritime claims.

The tribunal dismissed China’s vast claims in the vital waters, known to have vast oil and gas deposits.

From the start, China has insisted that it will ignore the tribunal decision.

It has also warned that increasing pressure on the issue could turn the resource-rich waters into a “cradle of war”.

Three days following the tribunal’s ruling, China’s state media reported that China may build mobile nuclear power plants in the South China Sea.

“China will soon start assembling its first maritime nuclear power platform and is expected to build 20 floating nuclear power stations in the future, which will largely beef up the power and water supplies on the South China Sea islands,” reported Global Times on Friday, citing China National Nuclear Cooperation (CNNC). (http://www.globaltimes.cn/content/994578.shtml)

The state-owned Global Times added that “marine nuclear power platforms will be used” in the islands and reefs of the Spratly chain in the internationally contested sea.

And two days before the tribunal announcement, China had enhanced its military presence under the directive of President Xi Jinping.

Meanwhile, Chinese Premier Li Keqiang told visiting Japanese Prime Minister Shinzo Abe that Tokyo should stop “hyping up and interfering” in the South China Sea issue, according to the official Xinhua News Agency.

Li: Tokyo must respect China's territorial sovereignty

 

https://youtu.be/HMP0a_ODVGU

Japan is not a state directly involved in the South China Sea issue, and thus should “exercise caution in its own words and deeds, and stop hyping up and interfering” in the issue, said Li.

Commenting on the decision of the tribunal in Hong Kong on Friday, a judge of the International Court of Justice (ICJ) said the award on the South China Sea arbitration had the effect of “pouring fuel on the flame”.

Xue Hanqin, while addressing a colloquium in Hong Kong, said: “Anyone can easily tell that this award will certainly aggregate the dispute between China and the Philippines, aggregate the current military tension between China and the US and definitely aggregate tension in the region.”

Indeed, countries in this region are keeping a close watch on the situation – paying particular attention to the actions of the United States, Japan and China.

The ruling of the tribunal – the legality and decision which has been questioned by academics from the East and West, has indeed caused an unprecedented level of tension in this part of the world since the Second World War.

This is despite the repeated assurance by China that it still prefers to resolve the disputes in the South China Sea via consultation and peaceful talks among the parties laying claims to the islands – which include Brunei, Malaysia, Vietnam and Taiwan.

To many analysts, the United States and Japan cannot turn away from the responsibility of instilling instability as both have in recent years provoked disputes with Beijing and challenged China’s sovereign claims to the South China Sea waters.

Indeed, China’s stand on not recognising the tribunal’s decision has won resounding support from commentators who know the history of the region.

China’s sovereignty over the islands and reefs in the South China Sea has been established in the course of history.

Until the 1930s, the United States had never regarded the South China Sea as part of the territory of the Philippines, according to professor of Political Science Peter Li of the University of Houston.

Li sees the tribunal’s award as “null and void”.

China’s rejection of and non-participation in the arbitration proceedings are in compliance with UNCLOS, which, adopted in the early 1980s, was not designed to settle territorial disputes.

Hence, arbitration over matters concerning the delineation of maritime boundaries is beyond the scope of the convention, Li opined.

The impartiality of the tribunal, headed by a Japanese, has also been questioned as it was biased from the start three years ago, he added.


https://youtu.be/yeXCM7WcFxo

 https://youtu.be/xBt7QizIAGg

The professor blamed the award for “putting regional peace at risk” as it will encourage other parties to the dispute to seek a similar approach to buttress their claims to the South China Sea.

“A worse scenario is that countries from outside the region (the US) shall impose themselves on the region, thus making a peaceful resolution of the dispute even more remote.”

And according to The Diplomat, in ignoring the verdict on the South China Sea, Beijing is following precedents by great powers as no permanent member of the UN Security Council has ever complied with a ruling by the Tribunal on an issue involving the Law of the Sea.

Graham Allison, director of Harvard Kennedy School’s Belfer Center for Science and International Affairs, noted in his writing: “In fact, none of the five permanent members of the UN Security Council have ever accepted any international court’s ruling when (in their view) it infringed their sovereignty or national security interests. Thus, when China rejects the tribunal’s decision in this case, it will be doing just what the other great powers have repeatedly done.”

Amid all the tension, what is important is that China has issued a long white paper that essentially reiterates its aspiration to maintain peace and stability in the South China Sea. 

China issues white paper on SCS; Arbitral court not an UN agency, unjust and questionable judges...

The United States and Britain have criticised Beijing on this issue, but they had forgotten the precedents they have set.

In the 1980s when Nicaragua sued Washington for mining its harbours, the United States argued that the ICJ did not have the authority to hear Nicaragua’s case.

When the court ruled in favour of Nicaragua and ordered the United States to pay reparations, the United States refused, and vetoed six UN Security Council resolutions ordering it to comply with the court’s ruling, according to The Diplomat.

Just last year the tribunal ruled that Britain had violated the Law of the Sea by unilaterally establishing a Marine Protected Area in the Chagos Islands. The British government disregarded the ruling, and remains in the Marine Protected Area.

In its commentary on Friday, Xinhua said the South China Sea arbitration “is just a start key for the United States having ulterior motives to agitate the South China Sea situation to reinforce its hegemony”.

PCA clarifies role, double standards in South China Sea arbitration profane international law

“The superpower has always been trying to turn the western Pacific Ocean into its own sphere of influence, dreaming to turn the South China Sea into the Caribbean where its warships patrol at will.”

To increase its dominance in the Asia-Pacific region in the face of China’s growing economy and increasing influence, the United States has since 2009 began a rebalancing strategy to the Asia Pacific to contain China’s rise, exerts Xinhua.

The South China Sea arbitration is another plot hatched by the US government, as Alberto Encomienda, former secretary-general of Maritime and Ocean Affairs Center of the Philippine Foreign Affairs Department, had said the United States has instigated his country to initiate the arbitration.

But to the credit of the Philippines, its government under a newly elected president is adopting a softer and conciliatory line towards China as it calls for more economic cooperation with Beijing.

This floats the prospects of cutting down conflict in future.

Amid all the tension, what is important is that China has issued a long white paper that essentially reiterates its aspiration to maintain peace and stability in the South China Sea, jointly with Asean member countries.

 By Ho Wah Foon The Star/Asia News Network

Related:

Arbitration: More questions than answers

On July 12th, an arbitral tribunal in The Hague made an award in the South China Sea territorial dispute case filed by the Philippines. The tribunal itself and its subsequent award, have many points which have raised more questions than answers.

 https://youtu.be/xBt7QizIAGg

Arbitration and award questionable

An award was made earlier this month over the South China Sea territorial dispute by The Hague-based arbitral tribunal consisting of five arbitrators.

https://youtu.be/yeXCM7WcFxo

China, the Philippines reached consensus on disputes

China has just released a white paper which reiterates the country's position on resolving territorial disputes in the South China Sea through dialogue and negotiation. According to the white paper, China and the Philippines reached consensus in the past on resolving the relevant disputes that way.


https://youtu.be/PvKQ5irjOFs

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国际法院（ICJ）在此希望媒体和公众注意，南海仲裁案（菲律宾共和国与中华人民共和国）裁决结果由常设仲裁法院(PCA)提供秘书服务下的一个特别仲裁庭做出。相关信息请访问PCA网站（ www.pca-cpa.org ）。国际法院作为完全不同的另一机构，至始至终未曾参与该案...

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China need not always win to be great

While it deserves to have a greater say in the world order, it should not be the only big winner. In its rush to assert itself on the global stage, it has simply reaped acquiescence

 

Chinese soldiers marking the Communist Party's 95th anniversary in Heilongjiang province last month. In President Xi's address, he said China will never compromise on its sovereignty. Standing up forcefully on the world stage has become a cornerstone of the country's diplomacy. PHOTO: AGENCE-FRANCE PRESSE

BEIJING • In his address at the 95th anniversary of the Chinese Communist Party (CCP) this month, President Xi Jinping (pic) devoted an unusually lengthy part of his speech to foreign policy.

Speaking just days before a ruling by the Arbitral Tribunal at The Hague on China's claims in the South China Sea, most international media focused on him saying that China will never compromise on its sovereignty. The Chinese media, however, picked out certain phrases to highlight his vision for the country on the global stage.

One of them is "ren lei ming yun gong tong ti", or a "community of common destiny for mankind", a term Mr Xi has used at least 60 times since 2013.

Building this community is the "Chinese solution" for an international world order that emphasises mutual benefits, and will allow China to fulfil its responsibilities as a major country, said party mouthpiece People's Daily in a commentary on Monday.

Another Chinese media analysis said China has come up with the "Chinese solution", or "zhong guo fang an", because it no longer wants to follow Western rules now that it has "a major country's capabilities and self-confidence".

Taken together, these points summarise China's reimagining of its role as a "major country/great power" or "da guo" in recent years. Although it became the world's No. 2 economy in 2010, the Chinese have always debated whether their country is truly a great power. There is, however, little doubt in the mind of Mr Xi, who has more actively sought to answer the question: "So what should a great power do?"

Plenty, it seems. In recent years, standing up more forcefully on the world stage has become a corner- stone of the country's diplomacy.

Last September, the People's Liberation Army (PLA) carried out a rare and massive display of its latest hardware through Tiananmen Square in a show of military prowess that unnerved neighbours in the region and countries further afield. That came amid a PLA restructuring and personnel reshuffle meant to improve its combat capabilities, as well as weapons deployment and land reclamation in the South China Sea.

Then last month, at a special meeting in Kunming between Asean and China's foreign ministers, a planned joint press conference failed to take place after the Chinese applied pressure on a few Asean member states and caused the 10-member bloc to splinter over a proposed joint statement on the South China Sea.

Experts such as Nankai University analyst Liu Feng have pointed out that "China has been more inclined in recent years to use its coercive power to persuade neighbouring countries or to ensure that they indeed treat it with respect". That is consistent with the observation that China has modified its foreign policy strategy to become more pro-active, shifting from the decades-old mantra of "tao guang yang hui" (keeping a low profile) to "fen fa you wei" (striving for achievement), a term Mr Xi used at a high-level diplomatic work conference in 2013.

Yet, what a great power can do and what it should do are different things - and both China's leaders and its people seem increasingly interested only in the former while "striving for achievement". That attitude extends to the Chinese public, as can be seen in the response of a fisherman from Hainan province who said in an interview in May: "Just attack them..., what are we afraid of?"

He was referring to the Philippines, which the tribunal ruled in favour of this week in the former's disputes with China in the South China Sea. Many of these fishermen had clashed with the coast guard and fishermen from the Philippines during their expeditions to the Spratlys, which the Chinese government encourages as a way of safeguarding sovereignty.

It is not uncommon to see netizens comment on territorial disputes online with a single word "da" (attack), born from the angst of seeing "great power" China supposedly being pushed around by smaller countries. They feel that China's might is not limited to the military either, often questioning what would happen if China decides to cut off trade ties or investment with another belligerent country. In short, now that we are strong, why do we need to play nice?

Yet, when it suits its cause, China (or its public) is quick to highlight that it is also a "rising power" - a developing country - hence relieving it of the international responsibilities that most expect a great power to shoulder.

Indeed, when Mr Xi committed US$2 billion (S$2.7 billion) last September to a development fund for poor countries and said China would aim to increase investment in least-developed countries to US$12 billion by 2030, that effort to change China's image as an international "free rider" swiftly came under fire. Why is China not helping its own poor, many Chinese asked. China is just a big country, not a rich country, others said.

None of that helps China's standing on the global stage. In its rush to demand respect befitting of a great power, China has merely reaped acquiescence.

Just looking at Asean, for instance, closer economic cooperation with Beijing has failed to translate into mutual trust. If anything, it has been the opposite, with concerns growing about China's readiness to wield its economic clout for geopolitical benefits. As one Western scholar observed, "China is a great power, but it doesn't realise that being a great power doesn't mean you need to ensure you win all the time".

This is where China can perhaps heed a lesson it learnt from the remarkable feat it pulled off early this year, in opening the Asian Infrastructure Investment Bank (AIIB), which People's Daily also sees as part of the "Chinese solution". Few would have given it a chance when Mr Xi first mooted it in 2013, especially given the intense pressure that the United States had put on other countries not to join the bank. But the benefits of this new institution were apparent to the 57 that eventually signed up, in what became a major public relations coup for China.

No coercive action was needed when the countries could assess for themselves the AIIB's merits, while being keenly aware of the limitations and associated biases in current international financial institutions.Two weeks on from Mr Xi's address, the tribunal has ruled against China's claims in the South China Sea and all eyes are on how forcefully it reacts. It should keep in mind that in recent years, assertive action has only served to push China's neighbors further away from it. It is still questionable, on balance, how much "striving for achievement" and not following "Western rules" has gained for China, and if that is still a path worth going down.

China deserves to have a greater say in the world order and, as it has pointed out, there should be no objection to its attempts to build a new world order that emphasizes "mutual benefits and a non-zero sum game model". In such a world, however, the great power should not be the only big winner.

By Teo Cheng Wee, China Correspondent The Straits Times/Asia News Network

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China's reaction to arbitration depends on provocation

 

“Who is the real saboteur of international law?” the editorial outlined the history and legal basis involved in the issue.

The award of the South China Sea arbitration will be issued at 5 pm Beijing time Tuesday. The US and Japan have claimed that relevant countries, including China, should comply with the arbitration result. They stand in sharp confrontation with China, which has announced that the award would be "nothing but a piece of paper." Whether the arbitration will lead to a severe geopolitical crisis has come under the global spotlight.

The Western media is analyzing how China will respond to the award. Bloomberg posited three scenarios from Beijing, from benign to moderately aggressive or aggressive. It considers that China establishing an South China Sea Air Defense Identification Zone (ADIZ) would be moderately aggressive and towing away the Philippine warship grounded at Ren'ai Reef and construction on Huangyan Island as aggressive.

We believe the Chinese government must have made a series of contingency plans to deal with subsequent actions. What actions China may take on Huangyan and Ren'ai, and whether China will announce a South China Sea ADIZ depends on the reactions of the Philippines to the arbitration result and the degree of US and Japanese provocations.

So far, none of the concerned parties want military confrontation. But all are ratcheting up military preparations. The South China Sea has been clouded by unprecedented tensions. It's uncertain where the situation will head to.

Chinese society pays close attention to the South China Sea situation. After the the post-arbitration wrestling begins, the most important thing for China is to show the outside world the solidarity of its society. For one thing, Chinese society has full confidence in the country's diplomatic and maritime strength; for another, no matter what price China has to pay for the wrangling, all the Chinese will squarely accept it.

The Chinese people and government share the same interests and responsibilities. We should not only safeguard territorial sovereignty, but also make the utmost efforts to maintain peace in China's periphery, prolonging China's strategic opportunities for China's rise.

The South China Sea is a big arena. China will devote its varied resources there. China in the past was weak. It could only express determinations through demonstrations or a few activists visiting its own islands in the South China Sea. But now it has multiple means at its disposal. It has become a formidable competitor that deserves respect. No power in the world could split a united China. As long as we stick together, provocateurs are doomed to fail.

Source:Global Times

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浩渺南海，水天相接。本是商舟渔船自在穿行的地方，近来却波诡云谲颇不寻常。

7月12日，所谓南海仲裁案结果即将出炉。围绕这毫无合法性可言的一纸裁决，一些人筹谋算计、排兵布阵，企图用它来强化对中国的舆论攻势，将莫须有的罪名强加给中国；一些人颠倒黑白、借题发挥，期望以此抹黑中国的形象，把“不守法”的帽子扣向真正的受害者。

种种急不可耐的喧哗与躁动，无一例外都打出了国际法的旗号，南海问题的真相却被有意忽略了——中菲南海争议究竟源于何处？菲律宾南海仲裁案实质为何？仲裁案所激起的种种波澜，又将给南海的和平稳定带来何种影响？

对于这些问题，7月5日在华盛顿举办的“中美智库对话会”，提供了一个视角——即使是一些来自美国的专家也认为，“中国在南海的权益是历史上形成的”“欧洲和其他国家的知名法律专家都表示，南海仲裁案整个过程都是非法的，菲律宾单方提起仲裁，违反了国际法”。

看来，有关南海仲裁案并非难以搞清。拨开一些人以国际法为名蓄意在南海上空制造的迷雾，还原真相，对于中国而言，是维护国家领土主权的神圣使命；对于世界来说，是主持国际公理正义的必然要求。

（一）

一段时间以来，西方舆论连篇累牍渲染南海问题，然而对于南海问题特别是中菲南海争议的历史经纬、事实真相，自诩“主持公道”的西方舆论却“选择性回避”了。

南海诸岛究竟属谁？历史早就给出了明确答案。南海诸岛自古以来属于中国，历代中国政府通过行政设治、海军巡航、生产经营、海难救助等方式持续对南海诸岛及相关海域进行管辖。二战期间，日本在发动全面侵华战争后，侵占了中国南海诸岛。二战结束后，中国根据《开罗宣言》和《波茨坦公告》所作出的明确规定，收复南海诸岛，在岛上派兵驻守并建立各类军事、民事设施，从法律和事实上恢复对南海诸岛行使主权。

在二战结束后相当长一段时间内，美国通过外交询问、申请测量、通报航行飞越计划等方式，承认中国对南沙群岛的主权。中国还曾在南沙群岛有关岛礁上接待过美国军事人员。同期美国出版的地图和书籍等，如1961年版《哥伦比亚利平科特世界地名辞典》、1963年版《威尔德麦克各国百科全书》、1971年版《世界各国区划百科全书》，均确认中国对南海诸岛的主权。

可以说，中国在南海的主权和相关权益，二战结束后数十年没有任何国家提出异议。因为南沙群岛回归中国，是战后国际秩序和相关领土安排的一部分，受到《联合国宪章》等国际法保护；否认中国对南沙群岛的主权，就是对战后国际秩序的否定，就是对国际法的公然违背。

对于南海诸岛属于中国这一点，菲律宾同样心知肚明。菲律宾固有领土范围是由1898年《美西巴黎和平协议》、1900年《美西关于菲律宾外围岛屿割让的条约》、1930年《关于划定英属北婆罗洲与美属菲律宾之间的边界条约》明确规定的。南沙群岛和黄岩岛根本不在上述条约规定的菲律宾版图内。

但自上世纪60年代末南海地区发现丰富的油气资源后，这片原本安宁的水域频起波澜。在巨大资源利益的诱惑下，菲律宾等国开始非法侵占和蚕食属于中国的南沙岛礁，成为南海问题产生的根源。更有甚者，菲律宾等国还以南沙群岛位于自其本国海岸起200海里范围内为由，企图以海洋管辖权主张来否定中国对南沙群岛的主权。

显而易见，在南海问题上，中国绝不是加害者，而是受害者。如果真的遵从法律，应该谴责的是菲律宾等国公然违背国际法和《联合国宪章》的行径，应该禁止的是一切非法侵犯他国领土主权的行为。

作为南海最大沿岸国，中国从维护南海地区和平与稳定的大局出发，在南海问题产生后的几十年里始终保持了极大克制，从未主动挑起争议，也没有采取任何使争议复杂化、扩大化的行动。中国最先提出并始终坚持“搁置争议，共同开发”，坚持通过谈判协商和平解决争议；按照2002年《南海各方行为宣言》所确定的原则，在平等和相互尊重的基础上，探讨与南海声索国之间建立信任的途径；根据1982年《联合国海洋法公约》在内的国际法原则，切实保障在南海的航行及飞越自由。

在过去的几十年里，南海局势总体保持稳定，有关争议得到妥善管控，东南亚地区实现高速发展，这一地区成为世界上和平、稳定和繁荣之地。这自然得益于中国与东盟相关国家的共同努力，但不可否认的是，作为综合国力较强的一方，中国的克制是南海得以保持和平稳定、繁荣发展的最重要原因。中国政府有权利也有能力收复失地，但是中国并没有这样做，目的就是为了南海的和平稳定，以及沿岸各国人民的共同福祉。

遗憾的是，树欲静而风不止。2012年4月10日，菲律宾蓄意挑起“黄岩岛事件”。2013年1月，菲律宾阿基诺三世政府置昔日谈判协商解决南海争议的承诺于不顾，单方面提起有关南海争议的仲裁案。

纵观南海问题演进脉络，2009年以前，虽然相关国家间存在摩擦，但矛盾却总体保持可控。可是从2009年起，南海问题开始步步升级。

为何2009年成为中菲南海争议重要分界线？为何菲律宾阿基诺三世政府会在南海问题上选择一系列政治赌博？

（二）

审视菲律宾在南海问题上逐步走向“活跃”的整个过程，不得不说美国的“战略转变”提供了最有解释力的视角。

2009年1月，奥巴马政府就职，美国外交政策出现方向性调整，在“重返亚太”的战略布局下，南海问题迅速成为美国维护地区霸权地位、对中国进行战略牵制的重要抓手。

2010年7月，时任美国国务卿希拉里·克林顿在东盟地区论坛上宣布美国在南海地区“拥有国家利益”。观察人士指出，此举标志着美国对南海问题开始走向事实上的“选边站”和“引导式”路径，克林顿本人更是在事后回忆称，“这是精心选择的措辞”。此次会议被美方视为“检视美国在亚洲领导地位以及反击中国扩张的临界点”。

正如美国卡托研究所国防外交政策研究室副主任卡本特所言，美国想要通过干预中国与邻国的南海争议来达到制衡中国的目的，“最具挑衅的做法是奥巴马政府支持菲律宾及其对南海争议岛礁的声索”。

大量新闻报道显示，菲律宾正式提起南海仲裁案之后，美国的“深度参与”几乎无处不在。美国律师出任菲方法律顾问，全面帮助菲方向仲裁庭提交总计12册、长达3000页的答复书以回答有关菲方诉求和依据之问题，并一手代理了第一轮口头辩论的文件起草和庭辩。此外，美国多次公开发声，力挺菲律宾非法主张。2014年3月，美菲在华盛顿发表包括所谓以仲裁解决南海国际争端等内容的联合声明；同年4月，奥巴马在与菲律宾总统阿基诺三世会谈时再次对菲律宾诉诸国际仲裁表达了公开支持。

人们看到，美国借南海问题无端抹黑中国国际形象，无所不用其极。近年来，国务卿、国防部长、国会议员等各色美国高官在东盟地区论坛、东亚峰会、香格里拉对话会、亚太经合组织会议、七国集团峰会等各种场合，热炒南海问题，试图把“规则破坏者”“现状打破者”“军事扩张者”的帽子强加于中国头上。

人们看到，美国以所谓“航行自由”为借口，以种种手段炫耀武力，实质上推动了南海军事化。美国航空母舰、战略轰炸机多次闯入南海，美国导弹驱逐舰不断抵近中国南海岛礁，美国与盟国在南海的军事演习更是接二连三。美国还敦促东盟国家在南海地区进行联合海上巡逻，支持日本在南海地区进行海上巡逻。

人们看到，美国拉帮结派，迫切希望把南海问题引向多边化、国际化，妄图给中国施加所谓外交压力。美国极力推动在各种地区及全球性多边组织框架下讨论南海问题，企图使东盟在南海问题上统一口径，鼓动日本、澳大利亚、印度、欧盟等与南海问题无关的域外国家和地区关注南海问题。

美国有识之士对于华盛顿在南海问题上制造对抗之举深表忧虑。知名战略学家布热津斯基就曾发出警告，美国在南海必须非常小心，南海问题不应成为美中关系的中心问题。然而，在霸权本性驱使下，美国在南海问题上制造紧张局势、破坏和平稳定的冒险之举依然愈演愈烈。

（三）

事实清楚地表明，菲律宾南海仲裁案完全是一个由美国鼓动操纵、菲律宾挑头、仲裁庭客观上予以配合的针对中国的一个“局”。

这个“局”其实不难看穿，自仲裁闹剧开始后，国际社会“不平则鸣”的正义之声从未停歇。迄今，已有近70个国家和地区组织明确表示支持中方在仲裁案上的立场，其中既有东盟国家，也有域外国家，还有阿拉伯国家联盟、上海合作组织等区域组织。即使在西方国家，也有很多国际法专家从专业角度发表严肃、公正的评论，表达对中方法理主张的认同，表明对该案的批评和质疑立场。

为什么中国立场的支持者那么多，越来越多？归根结底，是因为中方不参与、不接受立场有着充分的法理依据，而菲律宾单方面提起南海仲裁案，仲裁庭违法扩权、滥权，才是在真正破坏国际法。

首先，禁止反言是国际法治的一条基本原则，但菲律宾阿基诺三世政府却置自身昔日承诺于不顾，单方面强行提起仲裁，侵犯了中国按照《联合国海洋法公约》规定享有的自主选择争端解决方式的权利。正如联合国国际法委员会前主席、联合国国际法院特别法官布朗利所言：“一般国际法上不存在解决争端的义务，以正式法律程序寻求解决的程序取决于当事各方的同意。”争端提交国际仲裁，通常都需经当事国达成合意，尊重当事方意愿才是体现“各国主权平等的一种必然结果”。如今，仲裁庭擅自扩大管辖权限、漠视一国之主权，哪里还有“法的精神”？

其次，菲方不顾基本历史常识，妄称中国人历史上在南海没什么活动和存在，从未拥有对南海诸岛的主权。然而，中国渔民在南沙水域捕鱼作业，已成为南沙群岛主人的历史事实，有多个版本的《更路簿》可以证明；19世纪以来的外国文献，也明确记载了只有中国渔民在岛上生产生活的历史事实。法律的基点本就是“以事实为依据”，如今，昭昭青史仍在，凿凿证据如山，菲方却敢如此颠倒黑白篡改事实，对南海岛礁的有关论述缺失最起码的可信度。这样一个“并不构成争端”的无理诉求，竟然被仲裁庭接受，哪里还有“法的权威”？

再有，仲裁庭不顾中方一贯坚持将南沙群岛视为整体的立场，玩弄“切割”伎俩，歧视性地把中国驻守的南沙有关岛礁从南海诸岛的宏观地理背景中剥离出来。对菲律宾等其他国家非法侵占的岛礁，仲裁庭却只字不提，还将有关领土主权问题包装为所谓的岛礁法律地位问题。如此偷梁换柱、翻云覆雨，哪里还有“法的公信”？

南海仲裁案是否具有合法性和正当性？联合国国际法委员会前主席拉奥·佩马拉朱的判断一针见血：中菲南海争端的实质是关于主权和海域划界，而领土主权问题不属于《联合国海洋法公约》调整的范围，划界问题也可据中国政府声明而排除强制仲裁程序，此案仲裁庭对主权和海域划界问题都没有管辖权。菲律宾诉求的实质是领土问题，因此不属于《联合国海洋法公约》调整的范围。

然而，仲裁庭擅自扩大解释其自身管辖权限。对于领土和海洋划界问题，仲裁庭罔顾中菲早已选择谈判协商作为解决相关争议唯一方式这一前提，罔顾中国早已于2006年根据《联合国海洋法公约》将海洋划界争议排除适用强制争端解决程序这一事实，恶意解读此前中菲对争端解决方式的共同选择，轻易否定国与国之间达成的一致意见，严重侵犯中国作为主权国家和《联合国海洋法公约》缔约国享有的自主权利。其实质，不过是为个别国家滥用仲裁程序制造国际舆论实现政治目的提供配合。

培根在《论司法》中写道，“一次不公的判决比多次不平的举动为祸犹烈。因为这些不平的举动不过弄脏了水流，而不公的判决则把水源败坏了”。菲律宾及仲裁庭滥用强制仲裁程序，让《联合国海洋法公约》失去严肃性，其对《联合国海洋法公约》的破坏性、对国际法治秩序的冲击，不容低估。

事实上，很多西方专业法律人士都对强制仲裁程序被滥用表示担忧和关切。如果今后别国都效仿菲律宾的恶劣先例，只要将领土和海洋划界问题包装成《联合国海洋法公约》解释和适用问题即可提交仲裁，不仅会让30多个缔约国所作排除性声明成为一纸空文，也将伤害《联合国海洋法公约》争端解决机制的信誉，破坏《联合国海洋法公约》建立的国际海洋秩序，对现行国际秩序构成重大威胁。

正如英国牛津大学国际公法副教授安东尼奥斯·察纳科普洛斯、英国外交部前法律顾问克里斯·沃默斯利指出，如果仲裁庭允许菲律宾背弃其在《南海各方行为宣言》中的承诺继续推进强制仲裁，这种处理方式或造成“恶法”，会对国际关系的整体稳定造成潜在破坏。

从这个意义上来看，中国为捍卫国际法做针锋相对的斗争，不仅是在捍卫自己的领土主权，更是在切实捍卫国际海洋秩序、维护世界长治久安。

（四）

菲律宾南海仲裁案如此公然违背国际法，为何向来以“国际法官”自居的美国却在装糊涂？美国著名律师布鲁斯·费恩直言，美国的南海政策体现了其“危险的帝国思维”。

这种为所欲为的“帝国思维”，就是霸权主义。美国比任何人都喜欢把国际法挂在嘴边，但历史和现实一再表明，美国对待国际法，总是对人不对己，且每每玩弄法律于股掌之上——如果国际法对美国有利，美国就高高祭起这面大旗；如果国际法可能约束美国的行为，美国就会把它踩在脚下置之不理，甚至将“非法”尊为“合法”，将“合法”抹黑为“非法”。

美国如果真的关心国际法治，为何《联合国海洋法公约》推行几十年了还不愿加入？众所周知，作为规范当代国际海洋关系最重要的法律文件，《联合国海洋法公约》被誉为当今世界的“海洋宪章”，目前大部分国家都已加入《联合国海洋法公约》。美国作为世界上最大的海洋国家之一，却一直没有加入该公约，是安理会“五常”中唯一没有加入该公约的国家。根子就在美国霸权主义的国际法观和傲慢自私的海洋特权思想。

美国口口声声以海洋法治的维护者自居，却为一己之私拒不批准加入公约；口口声声要求别国接受第三方争端解决方式，自己却又拒不接受国际法院这一联合国最主要司法机构就尼加拉瓜诉美国案所作出的判决和命令；口口声声要求其他国家遵守国际法，却对自己和所谓盟友大开违法之门，长期以来对菲律宾非法侵占中国岛礁的行为视而不见。

这种自相矛盾与双重标准，集中体现了美国对待国际法“合则取，不合则弃”的虚伪本质，暴露了其根深蒂固的“帝国思维”。美国现实主义国际关系学者米尔斯海默谈及南海问题时曾说，“中国的邻国有动机在现阶段就把问题解决掉，而不是等到中国强大了，到时候就来不及了”，一句话道出了对中国防范遏制的阴暗心理。

中国正在成长，但一个多世纪里屡遭外敌入侵、强权欺凌的屈辱经历，是中国人民不可磨灭的记忆。在这样的历史记忆中强起来的中国，最懂得遭受欺凌和屈辱的滋味，“己所不欲，勿施于人”；在这样的历史记忆中走过来的中国人民，也决不会答应“屈辱的过去”哪怕在局部重演。

习近平总书记在庆祝中国共产党成立95周年大会上指出：“中国人民不信邪也不怕邪，不惹事也不怕事，任何外国不要指望我们会拿自己的核心利益做交易，不要指望我们会吞下损害我国主权、安全、发展利益的苦果。”这道出了全体中国人民的心声。

放眼南海，闪闪发光的航标灯，照亮的应该是和平的方向，驱散的应该是霸权主义的心魔，警醒的应该是被眼前蝇头小利冲昏的头脑。不合法的裁决不过是废纸一张，它否定不了中国在南海的合法权益，改变不了中国人民维护国际法治尊严，与相关国家一道维护南海和平稳定的坚定意志和决心。

编辑：刘雅萱, 来源：人民日报

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The US claims its interest in the South China Sea is to protect the freedom of navigation as US trade through this waterway is worth $1.2 trillion (R17.6 trillion) annually. To date, China has posed no threat to international navigation in the waters of the South China Sea and also seeks to protect its annual $5 trillion worth of trade.

Despite the tug of war, the situation was under control prior to 2009. When President Barack Obama took office in that year, he announced his keystone foreign policy undertaking as a “strategic pivot to Asia” or rebalancing strategy to the Asia-Pacific. The entire region intuitively recognised that the rebalance was, and is, about China.

A new determination emerged within the US administration to support the territorial claims in the South China Sea of China’s neighbours. It was in this way that the US was arguably the invisible hand behind the rising tension in the region since 2009.

From the Chinese perspective, it was the US that plotted behind the scenes the arbitration of its South China Sea dispute with the Philippines. There have been allegations that the US staffed a team of lawyers to lead the Philippines through the arbitration process, and encouraged them to launch their arbitration case when a Japanese national was president of the International Tribunal for the Law of the Sea. The Japanese national in question had been previously opposed to China’s positions in previous cases and became one of the five arbitrators in the case.

From the time that the Philippines took the unilateral initiative of taking the South China Sea arbitration to the tribunal in January 2013, China has refused to accept or participate in the arbitration. It maintains that territorial sovereignty issues are beyond the purview of the UN Convention on the Law of the Sea (UNCLOS).

As for maritime delimitation, China made an exclusion declaration in 2006, thereby lawfully excluding itself from any compulsory dispute settlement procedure by a third party. Apart from China, more than 30 other countries, including the UK, France, and Russia have made the same exclusion declaration.

China also maintains that, together with the Philippines, they have reaffirmed settling the South China Sea dispute through bilateral negotiations. This is in keeping with the Declaration on the Conduct of Parties in the South China Sea, signed between China and the Association of South-east Asian Nations, which explicitly states that the parties concerned should undertake to resolve their disputes through consultations and negotiations.

From the perspective of the Philippines, there have been a number of exchanges of views with China since 1995, which led to no resolution. But China argues that the two states have never engaged in any serious negotiations on the dispute. According to UNCLOS, China has the right to choose the means of dispute settlement, which means it cannot be forced to accept dispute settlement which is imposed on it, including a third-party settlement. But this has not stopped the arbitration from continuing without China’s participation.

What kind of consequences could the rush to arbitration, encouraged by the US, result in? Would China withdraw from UNCLOS and expand its Air Defence Identification Zone over all its territories in the South China Sea?

This was always a likely scenario, which begs the question of whether the US is keen to provoke a military confrontation as part of its containment strategy. Why else would it be deploying 60 percent of its naval fleet and 60 percent of its overseas air force to the South China Sea by 2030?

By Shannon Ebrahim who is the foreign editor for Independent Media http://www.iol.co.za/

Related:

Expert: Negotiation is only way for South China Sea issues

  http://t.cn/R5R1nar 

• Overview of the South China Sea Disputes ep.2：The Current Situation

http://english.cntv.cn/2016/07/01/VIDEFqZVHU17UA77AL1fVaQZ160701.shtml

The nine-dashed line was first discovered and owned by China. It is a maritime boundary line formed after China’s long-term jurisdiction and development of the South China Sea islands.

China holds sovereignty and jurisdiction rights within the nine-dashed line. Other countries’ ships have the right to freedom of navigation and their aircraft enjoy rights to fly over the territory.
There had been no problem with the nine-dashed line before the 1970s, but with Vietnam, the Philippines and other countries pushing further territorial claims, more governments are beginning to deny legitimacy of the nine-dashed line.

The United States and other countries have intervened in the South China Sea issue; using the so-called freedom of navigation in the South China Sea to deny the nine-dashed line to disregard China’s territorial rights.

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