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Wednesday, July 20, 2016

Dao inhabits people's hearts: Tribunal's dangerous precedent in international law !

Political manipulation violates combined concept of fairness, justice, rule, trend and direction.

Congenial approach: China believes in settling territorial issues and maritime delimitation disputes through amicable consultation and negotiation by directly concerned countries. In March 2005, national oil companies from China, the Philippines and Vietnam signed the Tripartite Agreement for Joint Marine Seismic Undertaking in the Agreement Area in the South China Sea.

Territorial dispute: Filipino fishermen riding on boats paddle at the coast of Cavite City, Philippines. According to media reports, Presidential Spokesperson Ernesto Abella stated that in spite of the awarding of a favourable decision on the South China Sea dispute, Filipino fishermen are cautioned to proceed with care. — EPA


ON July 12, the award on the South China Sea arbitration came out. This political anti-China farce in the disguise of law, manipulated by the United States, and acted by the former Philippine Government, eventually came to an awful end.

This award caused a storm of questions and negative comments in the international community. A lot of professionals are shocked, not to speak of how ridiculous it is to define Taiping Island as a “reef”.

As Professor Tom Zwart from the Netherlands said, “In the region (East Asia), the award will be widely regarded as the fruit of a poisonous tree, and it will fail, therefore, to garner the necessary support.”

Abraham Sofaer, former legal advisor to the US State Department, also pointed out that the arbitration had brought a lot of difficulties and anxiety, which were not good for any parties.

The US attempted to smear and “isolate” China with the arbitration, but unexpectedly received little response. China’s position of non-acceptance of and non-participation in the arbitration has won more and more support.

Even the Philippine people realised that the arbitration is a total conspiracy of the US for its own agenda. This proves again the age old saying, “a just cause enjoys abundant support while an unjust cause finds little support”.

Dao, a combined concept of fairness, justice, rule, trend and direction, and derived from ancient Chinese philosophy, inhabits people’s hearts. The Dao of the present world lies in peace, development and winwin cooperation, and the Dao of solving international disputes lies in fair, lawful and peaceful solutions. On the premise of peaceful settlement, international law provides the right of every state to choose the means of dispute settlement, which should be based on consent, used in good faith and in the spirit of cooperation.

China persists unswervingly in pursuing an independent foreign policy of peace; advocates the awareness about human common destiny; and opposes the Cold War mindset and zero-sum games, and the bullying of the weak by the strong.

China will never seek hegemony or engage in expansion. With regard to territorial issues and maritime delimitation disputes, China adheres to settlement through amicable consultation and negotiation by directly concerned countries, and does not accept any means of third-party dispute settlement or any solution imposed on it.

The violation of Dao by the US lies in its “imperialist mindset” and pursuit of hegemony. After World War II, the US global strategy has always been seeking the “leadership of the world”.

In 2009, the Obama administration launched the Asia Pacific Rebalance Strategy, and took the South China Sea issue as the pivot to maintain its regional hegemony and achieve strategic containment of China.

It is obvious that during the whole process of the arbitration unilaterally initiated and pushed by the Aquino III administration, the US was deeply involved in every step. Although alleging “neutrality and non-involvement”, the US manipulated behind the scene, and tried to forge a “coalition” to hype up the issue, resulting in rise of tension in the South China Sea.

The US always regards itself as “judge of the world”, but history and reality have repeatedly shown that the US has always adopted double standards. In the eyes of the US, international law is only applicable to other countries rather than itself. It only applies the law when it is consistent with its own interest and resolutely abandons it otherwise.

For instance, while advocating “the rule of law on the sea”, it has not acceded to the United Nations Convention on the Law of the Sea (UNCLOS).

While insisting that China must accept the arbitration award, it chooses to forget the Nicaragua case in which it not only withdrew from the proceedings and refused to implement the ruling, but also revoked the declaration of accepting the compulsory jurisdiction by the International Court of Justice. While opposing militarisation in the South China Sea, it has been provocatively dispatching military aircraft and warships into the area, and even deploying aircraft carrier fleets to this region.

More and more countries have found out who is the biggest “trouble-maker” in the world. It is the US intervention that makes the world worse. Afghanistan, Iraq and Libya have all fallen into its trap and are left with mess in the region. As the new Philippine President Rodrigo Duterte frankly said, the root of the bloodshed in Iraq and other Middle Eastern countries lies in the intervention of the US.

Furthermore, just prior to the arbitration award, the UK Iraq Inquiry published its report, stating that the decision of the US and UK to start the Iraq War was based on “flawed” intelligence. Under such circumstance, who will follow such a “leader of the world”?

The violation of Dao by the former government of the Philippines lies in breaching previous commitment and causing a lot of trouble in the shelter of a superpower.

The Philippines and China had been friendly neighbours over a long history. However, in recent years, the bilateral ties were damaged by the Philippine policy of confrontation, especially the unilateral arbitration claim.

The government of Aquino III willingly acted as the pawn of the US Rebalance Strategy and took the road to confront China. It deliberately provoked the Huangyan Island (Scarborough Shoal) incident, unilaterally initiated and pushed the arbitration, and tried to hijack other Asean countries to smear China and benefit from the unlawful arbitration award. Its intention is vicious, and its action illegal.

First, although fully aware that territorial issues are not subject to UNCLOS and that maritime delimitation disputes have been excluded from the UNCLOS compulsory dispute settlement procedures by China, the Philippines deliberately packaged the disputes as mere issues concerning the interpretation or application of UNCLOS.

Second, the arbitration infringes upon China’s right to choose the procedures and means for dispute settlement. In 2006, pursuant to Article 298 of UNCLOS, China declared to exclude from the compulsory procedures disputes concerning maritime delimitation, historic bays or titles, military and law enforcement activities. There are over 30 countries that have made similar declaration.

Third, the unilateral arbitration broke the bilateral agreements reached between China and the Philippines over the years to resolve relevant disputes in the South China Sea through negotiation.

Fourth, the arbitration violated the commitment jointly made by China and Asean countries, including the Philippines, in the Declaration on the Conduct of Parties in the South China Sea (DOC) to resolve the relevant disputes through negotiations by states directly concerned.

The Aquino III administration thought itself clever, but how can it deceive the whole world? As Cambodian Prime Minister Hun Sen said, the arbitration is “the worst political collusion in the framework of international politics”, and “would bring negative impacts to Asean and peace in the region”.

Rod P. Kapunan, Philippine columnist of The Standard newspaper, pointed out that “after six years of hypocrisy and deceit, this shameless stooge (here refers to Aquino III) has brought us right into the doorstep of possible armed conflict with China all because it has chosen to pursue the US-designed policy of inciting hostility with our neighbour”.

Regarding the South China Sea situation, he wrote that “the lives of the Filipinos would be sacrificed to enforce a decision that if examined closely is a US proxy war which the Philippines would serve as cannon fodder in securing its interest in this part of the globe”.

The escalation in the South China Sea will bring enormous risks to the regional and even global security. The Philippines should recognise its mistakes and return to bilateral negotiation with China.

The violation of Dao by the arbitral tribunal lies in political manipulation, unfairness and unlawfulness. The arbitration is completely a political farce under legal pretext. The establishment of this tribunal lacks legitimacy.

The arbitrators it chose lack fairness. The tribunal lacks jurisdiction, and it evidently expanded, exceeded and abused its power.

The so-called “award” is even ridiculous. Experts pointed out that all the fees of the tribunal, including the huge reimbursement to the arbitrators, are borne by the Philippines alone. This has raised a lot of concerns and problems. People are asking if the Philippines “hired the judges”.

The composition of the tribunal is a result of political manipulation. Japan and Yanai Shunji, then president of the International Tribunal for the Law of the Sea, acted as the broker.

The composition of the tribunal is quite weird: four of the five arbitrators are from Europe, the fifth one is a permanent resident in Europe, and all of them lack basic understanding of Asian culture and the South China Sea issue.

One fact could better show the play under the table. When the tribunal was established in April 2013, the first president appointed by Yanai was Chris Pinto, a senior Sri Lankan diplomat. Since Pinto’s wife is Philippine, he especially asked advice from both parties to the dispute and was recognised by the Philippines.

However, when Pinto later hinted that the tribunal might not have jurisdiction over the case, it raised deep concern of the US, Japan and the Philippines. The latter asked Yanai to find somebody to replace Pinto for a so-called “just cause”. In May 2013, Pinto was forced to resign.

The tribunal abused power for its own interest. Many experts of international law believe that the tribunal has no jurisdiction over territorial sovereignty and maritime delimitation. Just as Sofaer said, this arbitration is related to sovereignty disputes. It shouldn’t have been started, especially when a state party has declared in writing that it does not accept compulsory procedures over such disputes as maritime delimitation according to Article 298 of UNCLOS. The tribunal’s ruling “will broadly undermine the potential utility of international adjudication”.

The tribunal disregarded the fact that the essence of the subject matter of the arbitration is the issue of territorial sovereignty and maritime delimitation.

It erroneously interprets the common choice of means of dispute settlement already made jointly by China and the Philippines, erroneously construes the legal effect of the relevant commitment in the DOC, deliberately circumvents the optional exceptions declaration made by China, selectively takes relevant islands and reefs out of the macro-geographical framework of the South China Sea Islands, and subjectively and speculatively interprets and applies UNCLOS.

The conduct of the tribunal and its award seriously contravene the general practice of international arbitration, completely deviate from the object and purpose of UNCLOS to promote peaceful settlement of disputes, substantially impair the integrity and authority of UNCLOS, gravely infringe upon China’s legitimate rights as a sovereign state and state party to UNCLOS, and are unjust and unlawful. It has set an extremely dangerous precedent in the history of international law.

The professional ethics of the arbitrators are widely criticised. All the Western arbitrators and expert witnesses played a shameful role as though they were chameleons.

They reversed their previous position as stated in published papers and even backtracked from their long-held views to make the case for the Philippines.

Arbitrator Alfred Soons had published his opinion that the status of islands was closely associated with demarcation and sovereignty issues.

However, when the tribunal ruled on jurisdiction and admissibility, he said the tribunal had the right to decide on the Philippines’ submissions concerning legal status and maritime entitlement of certain islands including Huangyan Island (Scarborough Shoal) and Meiji Reef (Mischief Reef ), which was entirely contradictory to his previous viewpoint.

Expert witness Clive Schofield also changed his views at the proceedings. On the same subject, using the same materials, he drew totally different conclusions in and out of the tribunal.

People must be wondering: how could they discard professional ethics to serve the interests of those who pay them?

Facts speak louder than words. The unilateral arbitration initiated by the Aquino III administration violates international law.

The tribunal has no jurisdiction over this case. The award of the tribunal is null and void. China’s position is justified and lawful.

It is time to put an end to the arbitration on the South China Sea. Consultation is the right way to settle disputes between states.

China will continue to work together with the Asean countries to implement the DOC comprehensively and effectively, promote the consultation on a code of conduct in the South China Sea, manage and control relevant disputes properly and explore maritime cooperation, in order to build the South China Sea into a sea of peace, friendship and cooperation.


by Huang Huikang The Star Malaysia

The writer is a member of the International Law Commission of the United Nations and the Chinese Ambassador to Malaysia. The views expressed here are the writer’s own.

Related:

South China Sea arbitration:

Who are the arbitrators?



https://youtu.be/j3VsgQQJNZQ

The Xinhua news agency has accused the US government, the Philippines, the arbitration panel and Japan's prime minister Shinzo Abe of collusion in the recently concluded South China Sea arbitration case.

Four of the five arbitrators of the temporary tribunal were appointed by Shunji Yanai, the former president of the International Tribunal for the Law of the Sea. The former Japanese diplomat's political stance and speeches went against the principles of the independence of the international judiciary. Shunji Yanai served the Japanese Foreign Ministry for 40 years from 1961. He has been involved in controversial issues, including Japan's 2015 security bill, and the Diaoyu Islands dispute with China. He has a close relationship with Japanese prime minister, Shinzo Abe.

The fairness of the tribunal's operations was called into question by the personal wishes of Shunji Yanai. The Xinhua news agency commented that it was not surprising that Yanai generally chose arbitrators who were biased against China.

In addition, an American legal team provided help in drafting thousands of pages of legal documents, representing the Philippines presenting arguments to the tribunal. American lawyer Bernard Oxman, who represented the Philippines, had worked with most of the arbitrators and Yanai. He attended the third United Nations Conference on the Law of the Sea as a representative for United States government. Based on the principles of independence of the international judiciary, the impartiality of a judge can be questioned if there are any links to a party involved in a case. Despite that, Oxman was still involved.

There is no doubt the close relationship between Oxman and US government, the Philippines government, arbitrators, Yanai and Abe. These links form a complex network of special political interests. The Xinhua news agency says they took advantage of legal platform and after three years they issued their pre-arranged ruling and finished their political farce.

Image for the news result

South China Sea arbitration is a political farce

Telegraph.co.UK The so-called award made by the South China Sea arbitral tribunal attracted wide attention.

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Tuesday, July 19, 2016

PLA Air Force conducts combat air patrol in South China Sea

 
Undated photo shows a Chinese H-6K bomber patrolling islands and reefs including Huangyan Dao in the South China Sea. The People's Liberation Army (PLA) Air Force conducted a combat air patrol in the South China Sea recently, which will become a "regular" practice in the future, said a military spokesperson on July 18, 2016. The PLA sent H-6K bombers and other aircraft including fighters, scouts and tankers to patrol islands and reefs including Huangyan Dao, said Shen Jinke, spokesman for the PLA Air Force. (Xinhua/Liu Rui)

China to make 'regular' air combat patrols over South China Sea

The People's Liberation Army (PLA) Air Force conducted a combat air patrol in the South China Sea recently, which will become a 'regular' practice in the future, said a military spokesperson on Monday. http://t.cn/Rtz9LNO


https://youtu.be/EaSjEMenPr0

The People's Liberation Army (PLA) Air Force conducted a combat air patrol in the South China Sea recently, which will become a "regular" practice in the future, said a military spokesperson on Monday.

The PLA sent H-6K bombers and other aircraft including fighters, scouts and tankers to patrol islands and reefs including Huangyan Dao, said Shen Jinke, spokesman for the PLA Air Force.

During the mission, the aircraft carried out tasks including aerial scouting, air combat and island and reef patrol, fulfilling the patrol's objective, Shen said.

The Air Force aims to promote real combat training over the sea, improve combat abilities against various security threats and safeguard national sovereignty and security, according to the spokesperson.

"To effectively fulfill its mission, the air force will continue to conduct combat patrols on a regular basis in the South China Sea," he said.

Shen pointed out that the South China Sea Islands have been China's territory since ancient times, and China's rights and interests in relevant maritime areas should not be infringed upon.

"The PLA Air Force will firmly defend national sovereignty, security and maritime interests, safeguard regional peace and stability, and cope with various threats and challenges," he said.


Chinese naval commander urges more cooperation with US

The commander of the People's Liberation Army Navy Wu Shengli has stressed that China and the United States have key roles in ensuring peace and stability in the South China Sea, and cooperation between the navies of the two countries is 'the only correct option.'http://t.cn/Rtz9Mir

Wu made the remarks on Monday while meeting with his U.S. counterpart Admiral John Richardson and his delegation to discuss maritime security.

Describing the current security situation in waters around China as "complicated and sensitive" and noting the escalating South China Sea issue, Wu said Richardson's visit will be beneficial for the two countries to strengthen communication, promote trust, resolve doubts and avoid misjudgments.

"We will never sacrifice our sovereignty and interests in the South China Sea," Wu said, stressing that it is China's "core interest" and concerns the foundation of the Party's governance, the country's security and stability and the Chinese nation's basic interests.

Wu said that China will not recede over territorial sovereignty or fear any military provocation, which the Chinese navy is fully prepared to cope with.

"We will never stop our construction on the Nansha Islands halfway... the Nansha Islands are China's inherent territory, and our necessary construction on the islands is reasonable, justified and lawful," Wu said.

He stressed that "no matter what country or person applies pressure," China will push forward and complete island construction as planned.

According to Wu, China will never be caught off guard, and the number of its defense facilities is completely determined by the number of threats it faces.

Wu vowed that China will never give up its efforts to solve the South China Sea issue peacefully, despite "many negative factors at present," but also warned that "any attempt to force China to give in through flexing military muscles will only have the opposite effect."

Wu expressed his hope that the two countries' air and maritime forces fully follow the Code for Unplanned Encounters at Sea and the Rules of Behavior for the Safety of Air and Maritime Encounters to avoid strategic misjudgment or exchange of fire, and to jointly ensure the peace and stability of the South China Sea.

Wu called on the two sides to promote strategic mutual trust, seek common ground, expand the scope of cooperation and create new momentum for China and the United States to develop a new type of major-power relations between the two countries.


Wu: China won't halt construction in South China Sea

Admiral Wu Shengli, the Commander of the Chinese Navy, has held talks in Beijing with the US Chief of Naval Operations John Richardson, amid tensions in the South China Sea.

South China Sea arbitration award won't hamper China-ASEAN cooperation: experts

 
SINGAPORE, July 18, 2016 (Xinhua) -- Photo taken on July 18, 2016 shows the Think Tank Seminar on South China Sea and Regional Cooperation and Development held in Singapore. Organized by the Institute of Chinese Borderland Studies, Chinese Academy of Social Sciences, the seminar attracted more than 20 experts from academic institutes in China and countries in the region, including Singapore, Indonesia, Malaysia and India. (Xinhua/Then Chih Wey)

SINGAPORE, July 18 (Xinhua) -- The so-called South China Sea arbitration award will not hamper cooperation between China and the members of the Association of Southeast Asian Nations (ASEAN), experts said here on Monday.

The ad hoc arbitral tribunal in the South China Sea arbitration, set up at the unilateral request of the former Philippine government, last Tuesday issued an ill-founded award sweepingly sided with Manila, denying China's long-standing historic rights in the South China Sea.

China has refused to participate in the proceedings, reiterating that the tribunal has no jurisdiction over the case, which is in essence related to territorial sovereignty and maritime delimitation, and has also made clear that it neither accepts nor recognizes the award and the award "is null and void and has no binding force."

China has also reaffirmed that it will continue to endeavor to peacefully resolve disputes in the South China Sea with parties directly concerned through negotiation and consultation on the basis of respecting historical facts and in accordance with international law.

Nearly one week after the so-called award was rendered, more than 20 experts on international law and foreign relations from academic institutes in China and Southeast Asian countries including Thailand, Cambodia and Malaysia convened here Monday for the Think Tank Seminar on South China Sea and Regional Cooperation and Development, which was organized by the Institute of Chinese Borderland Studies, Chinese Academy of Social Sciences.

In a keynote speech at the seminar, Zhao Qizheng, former minister of China's State Council Information Office, reiterated that the ad hoc arbitral tribunal has no jurisdiction over the case.

Zhao said the Philippine tax payers' money was used for a pile of waste paper, blasting the tribunal for "taking big money to do dirty things" and describing its proceedings as "amateurish and unsightly, null and void."

Zhao's remarks were echoed by attendees, who also agreed with Zhao that the disputes can only be settled through dialogue and by deepening China-ASEAN ties.

Kong Lingjie, vice dean of China Institute of Boundary and Ocean Studies, China's Wuhan University, criticized the so-called arbitration, branding it as "a bold interpretation and ambitious development of article 123(1) of the United Nations Convention on the Law of the Sea (UNCLOS).

"The most absurd ruling was on the Taiping Island's status as a rock," said Kong, adding that the ruling would deny most of the Nansha Islands' rights to exclusive economic zones.

In this case, Kong said, the arbitration violated the international law and fabricated "an illegal definition of the distinction between islands and reefs."

Experts at the seminar also voiced support for the notion of bringing concerned parties involved in the South China Sea issue back to the negotiating table.

Zheng Yongnian, director of the East Asian Institute, National University of Singapore, said he believes that China and the Philippines should start the dialogue process to solve the dispute.

"It is not true that a great power has been bullying small countries," Zheng said, noting that certain countries in the region kowtow too much to the United States.

Zheng suggested that China and other concerned parties over the South China Sea issue could firstly initiate cooperation in maritime rescue efforts, fishery and protection of maritime resources.

At the one-day seminar, experts, in addition, all agreed that the arbitration would not impede the cooperation process between China and the ASEAN countries.

Li Guoqiang, deputy director of the Institute of Chinese Borderland Studies, told Xinhua in an exclusive interview on the sidelines of the seminar that there lies a huge potential for the development of China-ASEAN ties.

"With the strategic opportunity produced by China's 21st Century Maritime Silk Road initiative, the two sides are planning to upgrade their free trade agreement," Li said.

Zhao Qizheng, meanwhile, underscored the fact that China became ASEAN's biggest trade partner in 2009.

He said that despite the difficulties, including territorial disputes, the intervention of countries outside the region and the not well-established cooperation mechanism, the communication and cooperation between China and the ASEAN members has never ceased and has brought great benefits to all countries.

"It is beyond doubt that maintaining regional peace and stability, and keeping the momentum of cooperation and development is in the best interest of all," Zhao said.

- by Zhang Ning, Lin Hao Xinhua

Experts: 'Award' won't settle disputes

Nearly 30 legal and political experts from China and Southeast Asian countries have compared notes on the South China Sea arbitration case at a think-tank seminar in Singapore.

Biased award in South China Sea arbitration has no binding force: expert


SINGAPORE, July 18 (Xinhua) -- The biased award rendered by an arbitral tribunal in the South China Sea arbitration has no binding force as the ad hoc tribunal violated international law principles and standards, an expert said here on Monday.

Sienho Yee, chief expert at the Institute of Boundary and Ocean Studies of Wuhan University, said the arbitral tribunal adopted an excessively expansive interpretation of the jurisdictional grant, played a game of words, and distorted the text of the United Nations Convention on the Law of the Sea (UNCLOS).

The wrongful exercise by the tribunal did a substantial damage to the international rule of law, he said, adding that it had failed to consider and respect the limitations imposed by UNCLOS and China's intents and purposes in invoking its explicit right under the convention to exclude disputes concerning maritime delimitation and historic titles.

"It is manifestly clear that the tribunal abuses its power and as a result the award is null and avoid," he told Xinhua during a think tank seminar on South China Sea and regional cooperation and development.

Yee also pointed out that the arbitral award was not generally accepted, so they would be with no binding force.

"The large number of states supporting China's positions seems to show that the decisions of the tribunal are not generally acceptable and therefore are without binding force," he said.

The Chinese government said the ad hoc arbitral tribunal established at the unilateral request of the Philippines has no jurisdiction over relevant submissions, and the award rendered by it is null and void with no binding force.

The tribunal had exemplified the philosophy of "the end justifies the means" by excessively expansive interpretation of the jurisdictional grant and the sweeping final award, in a bid to exhibit its determination to settle any dispute that may exist in its view, while disregarding any other issues such as respect for the sovereignty of the states involved, said Yee.

"The danger of this philosophy to the effectiveness and legitimacy of the international legal system, international rule of law and the world order at large is clear, and we must guard against this danger," he said.

Unmasks manipulator behind South China Sea arbitration


Citing a survey from the Xinhua News Agency, a People’s Daily article has unmasked Shunji Yanai as a manipulator behind the null South China Sea arbitration.


Shunji Yanai (Photo: www.itlos.org)

Published on Monday, the article names Yanai, a Japanese diplomat and former president of the International Tribunal for the Law of the Sea (ITLOS), played a key role in the case. He appointed four of the five-member arbitral tribunal on the South China Sea case, the fifth appointed by the Philippines.

Yanai appointed the four members because China did not agree to the arbitration.

Rightist, hawkish, pro-American, unfriendly to China...these are the labels people often associate with Yanai, the article said. His closeness to Japanese Prime Minister Shinzo Abe is also no secret. Such an academic and political background also speaks for his political inclination during his tenure in the ITLOS.

Coming from a diplomatic family, Yanai entered the Japanese Foreign Ministry upon graduation in 1961, where he was involved in sensitive projects related to the Diaoyu Islands and the Japan-US security alliance.

But in 2001, he left the Foreign Ministry along with three other officials amid a series of embezzlement scandals within the ministry.

However Yanai, on recommendation of Japan despite his tainted record, became a judge of the ITLOS in 2005 and president of the organization from 2011 to 2014.

After the Philippines unilaterally initiated the arbitration case against China in 2013, a five-member arbitral tribunal was created by Yanai, the then president of the ITLOS.

The Basic Principles on the Independence of the Judiciary, adopted by the UN to better maintain justice, stipulated that the extra-judicial activities conducted by the judges and arbitrators should not contradict their work or impede the judicial process.

However, Yanai also served as a mastermind of the Japanese government on military actions and security policies when he worked for the ITLOS.

With close ties to Abe, Yunai served as chairman of an expert panel advising the prime minister on security laws. In May 2014, his panel presented a report to Abe, advising to revise the country's constitution and lift the ban on Japan sending its military overseas.

As a result, Japan, in 2015, ended its 70 years of pacifism by enacting controversial security laws that allow for Japan to dispatch troops overseas to engage in armed conflict.

As conflicts between China and Japan over the sovereignty and delimitation of the Diaoyu Islands increased in recent years, Yanai advocated to lift the ban on Japan sending its military overseas and expanding the Japan-US military alliance to gain a military edge.

Given the maritime conflicts and historical issues between China and Japan, as well as Yanai's political leanings, he is not the right person to engage in the South China Sea issue. Also, it is not surprising that Yanai generally chose arbitrators that were biased against China.

In addition, the Basic Principles on the Independence of the Judiciary also clarify that in exercising rights, judges shall always conduct themselves in such a manner as to preserve the dignity of their office and the impartiality and independence of the judiciary.

However, Yanai has a clear political position as a rightist. During his term on the private panel, he repeatedly told Japanese media that the country has not given up its right to collective self-defense as prescribed in their constitution.

In a program by the Japan Broadcasting Corporation, he also asked Japan to resort to the Japan-US Security Treaty for security assurance, claiming that the UN is useless in this regard, thus exposing his double-sided nature.

"From the results of the arbitration, people can see that it was conducted by a bunch of people who knew very little about South China Sea issues," said Motofumi Asai, a former official of the Japanese Foreign Ministry in charge of China affairs and a former colleague of Yanai.

"The arbitration was obviously conducted in accordance to the will of the Abe administration," he said.

All these facts prove that Yanai’s political background and leaning run counter to the Basic Principles on the Independence of the Judiciary. Yanai’s tribunal was flawed in both justice and validity from the very first day of its establishment, the article concluded. -  (People's Daily Online)

Related:  

Japan's interference makes summit unlikely

 

 Philippine media: Gov't spent $30 mln on arbitration

Philippine media report that the government spent 30 million US dollars on the South China Sea arbitration case over the past three and half years. Neither the Philippines nor the tribunal have given details of that spending. But we can get some idea from published charges and past tribunal fees.


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Permanent Court of Arbitration clarifies role in South China Sea case THE HAGUE, July 16 (Xinhua) -- The Permanent Court of Arbitration ... 


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...

Dialogue 07/10/2016 Differing views on South China Sea   China enhances maritime law enforcement China established Sansha City four... 


Foreign captives: A file picture showing hostages Hall (right) and Sekkingstad in the southern Philippines. — Reuters Abu Sayyaf Milita...

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

Monday, July 18, 2016

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. 


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”.


“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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Sunday, July 17, 2016

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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