China raps RP for ‘smear’ job

From the Daily Tribune (Jul 3): China raps RP for ‘smear’ job

Arbitral ruling to affect other China conflicts -- Gov't counsel

A word war erupted anew between China and the Philippines yesterday as the ruling by an international tribunal on the South China Sea dispute nears with an American counsel for the Philippines at The Hague, where the hearing is being held, saying the case would have ripples in China’s other territorial claims while China accused the Philippine panel of starting a “smear” campaign against it.

In a report of state news service Xinhua, China called on the Philippines to work with it to use the power of negotiation to solve disputes in the South China Sea.

China said it welcomes remarks made by President Duterte of hopefully starting a “conversation” with China to work out a “win-win relationship.”

China will continue to abide by international law and work with states directly concerned to resolve issues in the South China Sea through negotiation, to help maintain peace and stability in the South China Sea, it said.

Paul Reichler, lead counsel for the Philippines in the case challenging China’s sweeping claims in the disputed South China Sea, said the response of other coastal states to the upcoming ruling by an international tribunal would be crucial.

Reichler said the ruling would be binding only on China and the Philippines but would affect other coastal states. He said those states would be unlikely to acquiesce in China’s claims if the court ruled against it.

“If the nine-dash line is unlawful as applied by China against the Philippines, then logically it is equally unlawful as applied by China” against other states, such as Vietnam, Indonesia, Malaysia, Singapore and Brunei,” Reichler said.  He said if China persisted in trying to enforce illegal claims, that would affect relations with its neighbors.

China is not recognizing the arbitration procedure before The Hague-based Permanent Court of Arbitration, which has announced its verdict will come July 12. The court has previously determined it has jurisdiction in the case.

The Philippines, a US ally, is challenging the validity of the so-called nine-dash line that China uses to demarcate its claims to most of the South China Sea, where tensions have been mounting.

China has built artificial islands in disputed areas and has been angered by periodic U.S. military patrols nearby.

Paul Reichler, counsel for the Philippines, said late he was optimistic that the court would rule in his client’s favor, and that although the court has no enforcement mechanism, international opinion would weigh on China.

“China has made very strong public statements that it does not intend to comply with the judgment of the arbitral tribunal, but that is not the end of the story,” said Reichler, an expert on international litigation and arbitration at the Washington-based private law firm Foley Hoag LLP.

The Xinhua report, however, said as an honest and responsible power, China has always abided by international law and basic norms governing international relations, and will continue to do so in the South China Sea issue while safeguarding its territorial sovereignty.

As the Permanent Court of Arbitration in The Hague will announce the so-called “award” on July 12, a new smear campaign against China has emerged, this time by Reichler, the report said.

It described Reichler as an international lawyer who has “a reputation for representing small countries against big powers.”

“He has no right to depict China as an outlaw state for no reason,” the Xinhua report said.

Reichler had said China risks being seen as an “outlaw state” unless it respects the outcome of the case.

“On the South China Sea arbitration initiated unilaterally by the Philippines, China has reiterated that it does not accept nor is it a participant in the arbitration, and will never recognize the so-called award,” it added.

The Xinhua report said the Arbitral Tribunal has violated the United Nations Convention on the Law of the Sea (UNCLoS) and “has abused its power at will by hearing the case and exercising jurisdiction.”

“Under UNCLoS, the jurisdiction of an arbitral tribunal is limited to disputes concerning the interpretation or application of the convention. Territorial issues are not subject to UNCLOS, but to general international law,” according to the report.

The South China Sea case is in essence about territorial sovereignty and maritime delimitation, it added.

Int’l pressure factor

“What China may ultimately do in six months, or a year or two years, may be very different than what it says on July 12 or July 13. I think a lot will depend on the reaction to the award of the international community as a whole, particularly China’s neighbors that have coasts along the South China Sea,” Reichler said.

Reichler declined to comment on how the policy of the new administration of Duterte might shape the aftermath of the ruling. Duterte has shown readiness to mend frosty ties with China.

Southeast Asia’s regional bloc appears to be divided on the issue, with smaller pro-China nations complicating efforts to forge a consensus. China has been stepping up its public messaging as the ruling date approaches and garnering support among far-flung nations, mostly in Africa and Mideast. It asserts that its sovereignty over land features scattered around the South China Sea is indisputable, although several other governments have territorial claims or interests there.

Chinese Foreign Ministry spokesman Hong Lei said the Philippine case is “an abuse of international law and the international arbitration mechanism” and reaffirmed China would not accept its verdict, the official Xinhua News Agency reported.

China contends the case addresses a question of sovereignty and so lies outside mandatory dispute settlement procedures under the U.N. Convention on the Law of the Sea. However, the tribunal determined in October 2015 that the Philippine case was about interpretation of the convention, not sovereignty, and so it had jurisdiction.

Hong Lei repeatedly slammed the administration of former President Aquino claiming that it “went back on the agreement reached between the Philippines and China on resolving disputes through negotiation and consultation through a series of bilateral instruments and the Declaration on the Conduct of Parties in the South China Sea, contravened UNCLoS.”

“The arbitration initiated by the Aquino administration is illegal and invalid,” Hong said.

He said relevant disputes could only be resolved through bilateral negotiation and consultation on the basis of respecting historical facts and in accordance with international law.

Foreign Affairs Secretary Perfecto Yasay Jr. declined to comment on Hong’s allegation which was consistent with his earlier stand cautioning against generating provocative statements.

“We will wait for the decision award of the PCA and see what they have to say about that,” he said.

In recent pronouncements, PrDuterte has shown willingness to release the tension with China. “It should be a soft landing for everybody, we don’t taunt or flaunt it,” he said during his first Cabinet meeting on the possibility of favorable tribunal decision.
Not in UNCLoS

China has repeatedly claimed the Arbitral Tribunal circumvented a declaration under UNCLOS that China made in 2006 to exclude third parties from any dispute involving maritime delimitation. Therefore, the tribunal in The Hague has exceeded its jurisdiction by accepting the Philippines’ case.

Through Xinhua, China said UNCLoS stipulates that nothing impairs the right of states to settle a dispute through means of their own choosing. Further procedures will only be applied only where no settlement has been reached between parties.

It said given the fact that China and the Philippines have made a clear choice to settle their dispute through one-on-one negotiations, third-party settlement procedures were unapplicable.

The Philippines has violated an understanding reached with China on solving the disputes through negotiations, and its commitments under the Declaration on the Conduct (DOC) of Parties in the South China Sea, it added.

“Pacta sunt servanda” - or maintaining agreements - is a basic principle in international law. However, the Philippines’ unilateral initiation of the arbitration violates its agreement with China, it said.

China said it isn’t the first country in the world to claim that a court lacks jurisdiction.
“In 1986, the International Court of Justice ruled that the United States had violated international law by supporting the Contras rebels against the Nicaraguan government and by mining Nicaragua’s harbors. However, the United States refused to participate in the proceedings after the Court rejected its argument that the Court lacked jurisdiction to hear the case,” it said.

The so-called South China Sea arbitration, which is expected to produce a verdict on July 12, is yet another global deformity, another Xinhua report said.

International law is being exploited and distorted to meet the private interest of certain groups or countries, it added.

Glorified slogans surround territorial disputes in the South China Sea, where tensions created in the name of “freedom of navigation” and “international law” provide self-validation for the presence of U.S. military forces and lubricate the profitable arms business, it added.

Meanwhile, tensions or even potential conflict in the Asia-Pacific will bring extra perks to some politicians in Washington and Manila, as it could divert public attention from domestic problems such as gun violence, corruption and poverty, the Xinhua report said.

“Any misjudgment that leads to confrontation in the South China Sea will inevitably hurt the friendly relations and the intertwined business ties among the peoples of China, the United States and the Philippines. Special interest groups would be the sole profiteers at the cost of the peoples’ well being,” it said.

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