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Xinhua Insight: Forthcoming South China Sea arbitration "null," unconducive to dispute solution
2016/07/01

Whilst an arbitral tribunal itself in dispute will decide on the South China Sea case on July 12, observers believe that the arbitration will not help solve the dispute, and that the problem will not be resolved until thePhilippines returns to the negotiating table.

"The South China Sea dispute is beyond jurisdiction of the arbitral tribunal," according to Yi Xianhe, an expert on international law from China's Wuhan University.

Yi said the dispute, essentially about territorial and maritime delimitation, does not concern the interpretation or application of the United Nations Convention on the Law of the Sea (UNCLOS).

China made an optional exceptions declaration in 2006 pursuant to the Convention, excluding disputes concerning, among others, maritime delimitation from the UNCLOS third party dispute settlement procedures. Some 30 countries have made similar statements.

The tribunal's jurisdiction over the claims is "thoroughly erroneous" and "essentially a political decision," according to a statement by the Chinese Society of International Law.

China and the Philippines had previously agreed to settle disputes through a series of bilateral instruments and the Declaration on the Conduct of Parties in the South China Sea.

"The Philippines' resort to arbitration has obviously breached the doctrine of estoppel," said Jia Yu, deputy director of China Institute for Marine Affairs.

HISTORICAL FACTS

Zhang Zuxing, an associate professor with Sun Yat-sen University in South China, said that the South China Sea issue concerns China's historical rights, which can be excluded from mandatory arbitration according to Article 298 of UNCLOS.

Chinese activities in the South China Sea date back to over 2,000 years ago. China was the first country to discover, name, explore and exploit the resources of the South China Sea Islands and the first to continuously exercise sovereign powers over them.

Since the 1970s the Philippines has occupied a number of China's Nansha Islands in the South China Sea, including Mahuan Dao, Feixin Dao, Zhongye Dao, Nanyao Dao, Beizi Dao, Xiyue Dao, Shuanghuang Shazhou and Siling Jiao.

"If you look at the history of the South China Sea, you'll see there is enough evidence to prove that those islands belong to China," said Mam Sait Ceesay, a journalist from Standard, a Gambia newspaper.

He believed that the intention of the Aquino III administration, filing the arbitration in 2013, was to seek support from its western allies and to ramp up political pressure on China. The tenure of Benigno Aquino III ended on June 30 and Rodrigo Duterte took over as new president of the Philippines.

While the Philippines has already filed the arbitration, China has its right to safeguard its sovereignty and territorial integrity, said Victor Burikukiye, a senior official from Burundi's ruling party, National Council for the Defense of Democracy-Forces for the Defense of Democracy(CNDD-FDD).

He reiterated support from his party and government for China's stance on settling disputes through bilateral dialogues and consultations, as any forceful means by a third party is infeasible.

As to the arbitration, scores of governments and political parties have voiced their support for China's stance on South China Sea issue, and the number is still growing.

Over the weekend, China and Russia signed a declaration on promoting international laws, in which they emphasized the importance of integrity of the legal regime established by the 1982 UN Convention on the Law of the Sea. It was seen as a latest move of Russia to show its support for China on the South China Sea issue.

Settling disputes bilaterally through dialogues and negotiations is in line with the UN charter, which is also best for fundamentally solving the issue, said Jan Kohout, foreign policy adviser to the Czech president.

U.S. INTERVENTION UNHELPFUL

Observers said the United States, yet to sign the UN Convention on the Law of the Sea, has played a negative role in the South China Sea issue.

Mohamed Abdelaziz Mustufa, a journalist from Alsudani Newspaper in Sudan, said the major problem is not between China and the Philippines, but "maybe between China and the United States."

He regarded the United States' intervention in the South China Sea as making things more complicated, just like "putting oil onto fire."

The United States deployed two aircraft carriers on a "training mission" in seas east of the Philippines last week, which is not the first time that the U.S. flexes its muscles in the South China Sea. U.S. officials have also repeatedly pressed China to accept the arbitration.

Hani Mohamed Kamel, a journalist from youm7, an Egyptian media outlet, believes that it is the abundant resources as well as the critical geographic location that has drawn outside intervention.

"The United States is strategically squeezing China in the South China Sea," he said.

Ironically, China is often described by the U.S. side as "militarizing" in the South China Sea and hampering "freedom of navigation" there.

"We have not seen any move made by China in restricting freedom of navigation in the South China Sea. Freedom of navigation has not been threatened at all," said Burikukiye.

Kazi Ahmed, senior additional secretary of the central working committee of Bangladesh Awami League, expressed appreciation for China's matured position by maintaining peace in that region.

"We strongly believe and hope that good sense will prevail," he said, expecting the countries concerned will be able to resolve the South China Sea issue through consultations.

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