More Supports for PRC’s Position in South China Sea Disputes

{By Fredrick P. W. Gaye in Beijing, China / 008618510699710}

Part of the disputed areas
Part of the disputed areas

The People’s Republic of China (PRC) position to peacefully and diplomatically settle, instead of through arbitration, in the South China Sea disputes is getting more supports from international experts including lawyers.
A United States law professor, Paul Gewirtz, and other international experts have detected the limits of Tribunal’s decision in the South China Sea disputes and have joined calls for the matters to be settled through diplomatic means. They have strongly doubted the issues will be solved through the arbitration and want parties, especially The Philippines, to result to settlements through bilateral relations with China. Some have also spoken against interference of non-parties to the disputes.
China stresses the need for The Philippines and other parties to see peaceful settlements of the matters through bilateral relations, adding that the Court of Arbitration lacks legal jurisdiction over the issues.
In a paper, titled: “Limits of Law in the South China Sea,” Paul Gewirtz says, President Obama and many others have understandablyraised hopes that the tribunal’s decisionwill be a major step forward in providing a lawbasedsolution to the most contentious issues in theSouth China Sea. Law-based approaches are peaceful,offer the promise of fair and impartial applicationof rules, and can protect the weak as well as
the strong. In addition, through application of law,legal tribunals can also provide solutions to issuesthat are otherwise unavailable because of politicalstalemate elsewhere.
However, Gewirtz opines that examination of the issues before thetribunal and its most likely decisions demonstratethat the arbitration tribunal and law can make only
a very limited contribution to resolving the SouthChina Sea crisis. “Law will not save us from continuingto focus predominantly on negotiations and,yes, power politics. Messaging after the tribunal’sdecision should not make the tribunal’s decision themain pivot point of the path forward, which willneed to focus most intensively on the major mattersthe tribunal will surely not touch on and that mustbe urgently addressed by other means,” he says.
According to the United States Law Professor, there are four basic reasons that the arbitration tribunalcan make only a very limited contribution: first, he says despite much confusion in the media, allconcede that the tribunal has no jurisdiction
to decide any issues of “sovereignty” over theislands and rocks in the South China Sea,even though these “sovereignty” issues arethe heart of the many controversies.
He says all concede that China was within its legalrights under Article 298 of UNCLOS afterratifying the treaty in explicitly exempting itselffrom compulsory dispute resolution of awide swath of issues concerning “sea boundarydelimitations” (basically, sorting out overlappingmaritime rights between nations),“historic bays or titles,” or “military activities,”
so the tribunal will not decide any ofthese contentious issues.
Gewirtz maintains that, assuming, as of course we should, that thetribunal will continue to play it straight indeciding the legal issues presented, the Philippinesis unlikely to win all of its 15 claimsagainst China. “The tribunal is likely to conclude
that it lacks jurisdiction over a numberof the Philippines claims and to rule againstthe Philippines in some of the other claims,” he indicates.
Another reason Gewirtz mentions is, even if the Philippines wins some or allof its 15 claims against China, and even
though an adverse decision would be “binding”against China, there is no enforcementmechanism. He points out that China’s non-participation inthe proceedings on jurisdictional groundsforeshadows the consequences of any adverseruling against China, among others.
Gewirtz received his A.B. degree summa cum laude from Columbia University in 1967 and his J.D. degree from Yale Law School in 1970. After graduation, he worked as alaw clerk for the U.S. District Judge Marvin E. Frankel from 1970 to 1971, and as a law clerk for U.S. Supreme Court Justice Thurgood Marshall from 1971 to 1972. He was admitted to the bar in Washington, D.C., and was a lawyer at Wilmer Cutler & Pickering and then the Center for Law and Social Policy in Washington, D.C. He joined the faculty at Yale Law School in 1976. In 1994 he was appointed the Potter Stewart Professor of Constitutional Law. He teaches and writes in various legal and policy fields, including constitutional law, federal courts, anti-discrimination law, law and literature, Chinese law, and American foreign policy.
Also in her article, titled: “Why does the US feel it has the right to endanger Chinese national security interests in the South China Sea,” South African media expert, Shannon Ebrahim, observes that it becomes tiresome to continue unraveling stories of the ‘US meddling’ in regions far away from its shores, trying to weaken other countries in order to maintain its global dominance. Shannon says the more one delves into the reality of the conflict in the South China Sea, it becomes clear that the US actually thinks it has a right to manipulate regional dynamics in China’s backyard so as to encircle it as a rising superpower.
”What is more incredible is that the US believes it has the right to send 60 percent of its naval fleet and 60 percent of its overseas air force into the South China Sea by 2030. If this is not the ultimate display of arrogance then I don’t know what is,” she asserts.
Questions that runs in her mind on the note are: What would the reaction of US policymakers be if China decided to redeploy the bulk of its navy and air force into the Caribbean? What if such a deployment could be used in a future war to enforce a blockade against the US by choking a strategic shipping route that carried 80 percent of US trade and energy supplies?
According to the South African media expert, the answer without a doubt is that no country would ever be allowed to endanger US national security interests in such a way. “So why does the US think it can get away with doing the same thing to China?” she continues.
Shannon states that the South China Sea is a pathway of strategic importance to China, as it relies on this route for 70-80 percent of its trade and energy supplies.
Equally, she says It is also an important passage for the Chinese navy to sail to the wider sea. For any group of nations to attempt to position themselves strategically in this sea, thereby encircling China, is something that China will naturally seek to prevent, Shannon warns.
The US says it is concerned about freedom of navigation in the sea, considering that $1.2 trillion (R18.9 trillion) worth of US trade passes through this important conduit annually.
She indicates that China is equally committed to this principle, and has never attempted to hinder trade navigation in any way.
In this case, Shannon is of the conviction that China has international law on its side, as it has territorial sovereignty over the main four archipelagos in the South China Sea. Despite attempts by neighbouring countries to encroach onto the islands and take them over, she says China has proof of its sovereignty over them, going back centuries. The Nansha Islands were initially discovered by China under the Han Dynasty-almost 2,000 years ago.
She declares: “China was the first to exercise sovereign jurisdiction over the islands during the Yuan Dynasty, and marked these islands on its maps under the Qing Dynasty. It was only in the 20th century that Western colonial powers coveted the Nansha islands.”
Shannon Ebrahim is a South African columnist on foreign affairs, a freelance writer, and political consultant. She has worked as the Director for International Relations for the South African Presidency, and coordinated Government policy on the Middle East and East Africa.
Saeed Chaudhry, chair of the Islamabad Council for International Affairs, also believes the Permanent Court of Arbitration has no jurisdiction to hear or judge the case.
The court should have rejected Philippines’ arbitration request  because the Philippines itself is “illegally occupying islands and reefs of China’s Nansha Islands.”
“By considering all the facts in the issue, China has complete right and comprehensive reasons to reject the arbitration proceedings and not to accept and recognize any verdict by the arbitration,” he added.
Meanwhile, experts also noticed that before Manila initiated the arbitration in 2013, it had promised China in various political documents to resolve their South China Sea disputes via negotiations.
For example, China and the Philippines, along with other members of the Association of Southeast Asian Nations (ASEAN), signed in 2002 the Declaration on the Conduct of Parties (DOC) in the South China Sea.
The Philippines’ arbitration move runs contrary to the Article IV of the document — which stipulates that the parties concerned resolve their South China Sea disputes “through friendly consultations and negotiations.”
While pressing for its arbitration case, the Philippines ignored diplomatic channels as well as China’s willingness to negotiate, said Chaudhry.
What has happened so far surrounding the matter proves that “the Philippines and some hidden forces have ill plans and aims to disturb peace and stability” in the region, he added.
Instead of unilaterally resorting to arbitration, the right path forward regarding the South China Sea issue, as China has said repeatedly, is to conduct consultations and negotiations between directly concerned parties.
The impending decision by the arbitration court over the issue would not make the settlement of disputes in the South China Sea any easier at least, said Talmon, adding that the ruling may even be counterproductive to the solution of the problems.
Pakistani political and strategic analyst Sultan Mahamoud Ali noted that China has been very successful in resolving territorial issues with neighbors via bilateral talks.
China has already settled land boundary with 12 of its 14 neighbors and it is committed to the development of good neighborly relations with other countries in the region, including the Philippines, he said.
For Manila, it could achieve better results if it chooses to engage in direct talks with China, he added.
At the same time, the Xinhua News Agency recently reported that a U.S. expert on foreign policy lashed out at a recent report by The New York Times on South China Sea, saying its biased attacks against China are “hawkish” and “unjustifiable.”
In his column on Sino-U.S. Spotlight Online, Ben Reynolds said that the editorial published by The New York Times does not hold water for the following reasons.
First, the report titled “Playing Chicken in the South China Sea” and published on May 21 echoes the prevailing hawkish perspective of the U.S. policymakers, who severely exaggerated China’s threat to the region and the United States and supported tough steps against China in the South China Sea issue.
Second, the report’s vaguely depicted “rich resources” in the South China Sea are either strategically irrelevant to Washington or outside the disputed waters.
Third, all parties concerned in the South China Sea issue do not believe that China’s territorial claims will threat the sea routes. In this sense, the U.S.-preached navigation freedom is not an issue.
Fourth, the report’s accusation of “China’s most aggressive and outrageous tactic,” referring to its land reclamation and infrastructure construction in the South China Sea, has selectively neglected the fact that the U.S. allies and rival claimants in the region have also been engaged in such activities. It is their actions that are mainly responsible for the region’s militarization.
Fifth, the report’s attack on China’s increasing defense budget has also overlooked the fact that the U.S. military spending in 2015 has tripled that of China to the stunning 60.1 billion U.S. dollars. Washington also announced planned deployment of at least 60 percent of its navy and air forces to the Asia-Pacific region, which, apparently, will not be devoted only to humanitarian missions.
The risk of conflict in the South China Sea is significant. China, Taiwan, Vietnam, Malaysia, Brunei, and the Philippines have competing territorial and jurisdictional claims, particularly over rights to exploit the region’s possibly extensive reserves of oil and gas. Freedom of navigation in the region is also a contentious issue, especially between the United States and China over the right of U.S. military vessels to operate in China’s two-hundred-mile exclusive economic zone (EEZ).
The most likely and dangerous contingency is a clash stemming from U.S. military operations within China’s EEZ that provokes an armed Chinese response. The United States holds that nothing in the United Nations Convention on the Law of the Sea (UNCLOS) or state practice negates the right of military forces of all nations to conduct military activities in EEZs without coastal state notice or consent. China insists that reconnaissance activities undertaken without prior notification and without permission of the coastal state violate Chinese domestic law and international law.
The Philippines’ files January 2013: “The Philippines initiates proceedings against the PRC under Annex VII to UNCLOS (United Nations Convention on the Law of the Sea). The Notification and Statement of Claim  outlines the Philippines’ grievances against China and legal base for its claims, as well as discusses the nature of the various maritime features in question. It states that the Philippines is seeking a ruling that declares that claims in in the South China Sea must comport with UNCLOS, which would invalidate China’s nine-dash line; classifies maritime features occupied by China as rocks, low tide elevations, or submerged banks, but not islands; and declares the Philippines’ right to operate inside of its EEZ and continental shelf as outlined by UNCLOS without Chinese harassment.”
China’s Response February 2013: “China submits a Note Verbale  rejecting the claims made by the Philippines in the Notification and Statement of Claim, and calling on the Philippines to resolve the dispute through bilateral negotiations. China states that the Arbitral Tribunal lacks jurisdiction in the case.”  And China maintains its position, adding that “peaceful settlement is the best way since all of the parties are in the same region.
The South China sea issues are drawing more attention of countries the world over including those of Africa, whose economic and development with China has grown in recent years.
In a joint statement on June 21, 2016, about 350 delegates of the Third Forum on China-Africa Media Cooperation held in Beijing, called for peaceful settlement in the ongoing South China Sea dispute between China and the Philippines.
“We unanimously hold the to maintain peace and calm in the South China Sea is of great importance to the world peace, stability and development, and in the common interest of the people all over the world,” the statement indicates.
The statement calls on related parties to peacefully resolve, through friendly consultation and negotiation, territorial and maritime disputes in accordance with bilateral agreements and relevant regional consensus.
It also wants parties to affirm the respect to sovereign states and signatory states to the United Nations Convention on the Law of the Sea of their rights to choose dispute settlement approach on their own.
The delegates include: African government ministers, vice chairperson of the African Union Commission, chief executive officer of the African Union Broadcasting, heads of broadcast corporations, journalists as well as those from radio, film, and television sectors of China.
China is questioning the militarization of the South China Sea by the United States, who is reportedly deploying more troops and weapons in the disputed areas.
On the other hand, the United States says it mains to prevent any potential armed conflicts in the areas while accusing China of infringing on her rights of navigation.

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About Cholo Brooks 14317 Articles
Joel Cholo Brooks is a Liberian journalist who previously worked for several international news outlets including the BBC African Service. He is the CEO of the Global News Network which publishes two local weeklies, The Star and The GNN-Liberia Newspapers. He is a member of the Press Union Of Liberia (PUL) since 1986, and several other international organizations of journalists, and is currently contributing to the South Africa Broadcasting Corporation as Liberia Correspondent.