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Saturday, 16 July 2016

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

Permanent Court of Arbitration clarifies role in South China Sea case

THE HAGUE, July 16 (Xinhua) -- The Permanent Court of Arbitration (PCA) said on Friday that it is not a UN organ and only provided registry services to the South China Sea arbitral tribunal.

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

Judith Levine In an email responding to Xinhua's request for comment on the case, Judith Levine, senior legal counsel of the PCA, said the court has served as registry in interstate disputes under Annex VII to the United Nations Convention on the Law of the Sea (UNCLOS), adding that the tribunal should determine its own procedure.

Sovereignty issues, under UNCLOS is beyond the jurisdiction of the arbitral tribunal. China has validly excluded delimitation disputes in a declaration in 2006.

The appointment of arbitrators was conducted according to UNCLOS Annex VII, she said.

Both parties of a dispute are entitled to appoint an arbitrator, she explained. In the South China Sea arbitration, which China reiterated that it would not participate in, the Philippines appointed German arbitrator Rudiger Wolfrum,

and the four other arbitrators were appointed by Japan's Shunji Yanai, 

Japan's Shunji Yanai

then president of the Hamburg-based International Tribunal of the Law of the Sea (ITLOS).

Yanai's political leanings rules out the possibility of a fair judgement, as he has helped Japanese Prime Minister Shinzo Abe lift the ban on Japan's collective self-defense right and challenge the post-WWII international order.

The South China Sea arbitral tribunal, constituted on June 21, 2013, appointed the International Bureau of the PCA to serve as registry for the proceedings.

As a registry, the PCA undertook financial management of the case, which involved collecting payment from both parties, and paying fees to arbitrator, experts, technical support, court reporters, among others.

In the South China Sea case, due to China's firm stance of nonparticipation, the Philippines paid shares of both parties, in order for the arbitration to proceed.

According to the "Rules of Procedures" of the tribunal, the functions of the registry also included maintaining an archive of the arbitral proceedings, providing appropriate registry services as directed by the tribunal, publishing information about the arbitration and issuing press releases, and organizing hearings at the Peace Palace, the seat of the PCA.

On the PCA's relationship to the UN, Levine confirmed that although it is housed in the same premises with the ICJ, the PCA is not a UN organ.

"The PCA is an intergovernmental organization that predates the UN and is independent of the UN," she explained. "The PCA was established by the 1899 Convention for the Pacific Settlement of International Disputes. China became a member State of the PCA in 1904."

The PCA has observer status at the UN, and PCA delegations have attend UN General Assembly meetings and UN multilateral treaty negotiations, she added.

There has been a confusion among the public that the award in the case was made by a "UN-backed tribunal," or even "UN tribunal," due to misleading reports by some media.

The International Court of Justice (ICJ), the principal judicial organ of the UN, has issued a notification on its website to clarify that it had nothing to do with the case.

According to the PCA's 2015 annual report, it provides services for the resolution of disputes involving various combinations of states, state entities, intergovernmental organizations, and private parties.

Its International Bureau, or Secretariat, is the unit that provides registry services, ranging from secretarial support to travel arrangements.- Xinhua

Double Standards Applied in South China Sea Arbitration Profane International Law 

After the tribunal in The Hague announced its so-called verdict concerning the arbitration that the Philippines unilaterally filed despite China’s repeated objection, several countries including the US have been pressuring China to accept the void verdict under the banner of “respect for law”.

Their acts, against the rule of law and the basic principles of international law and relations, obstructed relevant sides to manage maritime tension and seek a peaceful settlement. Their blind eye to the basic facts also exposed the inglorious role played by these external powers in the entire political farce.

Ever since the administration of Benigno Aquino III filed the South China Sea arbitration, the US, Australia, Japan and some other countries accused China as a violator of international law and requested China carry out the so-called award.

But this tough talk only exposed their dirty strategic motives. Such tricks are not able to cover the legitimacy of China’s stances, nor alter the strong support to China from those international forces standing for justice.

It's worth mentioning that the above countries adopted a completely different attitude when themselves were involved in issues related with the international rule of law. The sharp contrast speaks for their hypocrisy and arbitrariness.

For years, with double standards on international law, some Western countries have set a plate of bad precedents. They supported international judicial rules that they can benefit from, but trampled on those not in favor of them.

As the strongest maritime power in the world, the US, worried about a possible cripple of its marine hegemony, never ratified the United Nations Convention on the Law of the Sea (UNCLOS). While evading its obligations, it is still enjoying the rights under the UNCLOS.

The US has never been accused under UNCLOS because the Washington has never ratified the law, one article on Foreign Affairs wrote in an ironic tone.

Back in 1980s, Nicaragua charged the US with taking military and paramilitary actions in and against Nicaragua and violating the sovereignty of Nicaragua in the International Court of Justice (ICJ).

The ICJ ruled in favor of Nicaragua and awarded reparations to Nicaragua. But the US, with a tough attitude, refused to participate in the proceedings and rejected the verdict delivered by the ICJ, the principal judicial organ of the UN.

The US later blocked enforcement of the judgment by the UN Security Council and thereby prevented Nicaragua from obtaining any actual compensation.

The US argued that the Court did not have jurisdiction, with then US ambassador to the UN Jeane Kirkpatrick dismissing the Court as a semi-legal, semi-juridical, semi-political body, whose rules nations sometimes accept and sometimes don't.

The same goes for Australia, which always wants to follow the “international police” posture. When concluding maritime rights treaties with Timor-Leste, the Australian government unilaterally rejected such articles concerning maritime delimitation and third-party dispute settlement procedure. Without any other options, Timor-Leste had to file for arbitration to overrule the validity of the treaty.

In order to stop Timor-Leste from initiating the arbitration, the Australian intelligence agency resorted to despicable actions such as searching the legal representative office of Timor-Leste in Australia, detaining documents and preventing witnesses from appearing before the tribunal.

Japan also did not wait too long before joining in the clique of violating the international law. Its whale-hunt in the Antarctica was ruled as breaching the International Convention for the Regulation of Whaling by the ICJ, which ordered Japan to stop issuing whaling permits in the South Pole.

Though talking a good talk about respecting the verdict, the Japanese government did not match its actions with words. No effective measures were taken to curb domestic whaling. Even its ally Australia could not stand it and condemned Japan for violating international law.

In sharp contrast to these Western countries, China has always staunchly supported the authority of international law. At the commemoration marking the 60th anniversary of the "Five Principles of Peaceful Co-existence", Chinese President Xi Jinping pointed out that all countries should advance the rule of law in international relations together.

“We should urge all parties to abide by international law and well-recognized basic principles governing international relations and use widely applicable rules to tell right from wrong and pursue peace and development,” Xi said in his speech.

This not only is a solemn commitment of China to the global community in safeguarding and building the international rule of law, but also expounds that the fundamental key to build international rule of law is to tell right from wrong, stop disputes and uphold win-win collaboration by adopting widely-applicable rules, instead of encouraging hegemony in the name of the international law and stirring up conflicts to stray away the international rule of law.

The law cannot execute itself. Unlike Western countries who selectively apply international law, China always applies the spirit of the international rule of law in its diplomatic practice. So far, China has established over 23,000 bilateral agreements and joined more than 400 multilateral treaties.

Moreover, China has participated in almost all inter-governmental organizations and demarcated nearly 90 percent of land borderlines with 12 out of its 14 land neighbors through negotiation and consultation.

For China, equal treatment is the cornerstone in its diplomacy regardless of the territorial size and national strength of the other country. China will never bully any state. Regarding the international rule of law, the US and some other countries can hardly qualify as a “teacher” to China. In addition, they should look back to their past mistakes, abandon their long-upheld hegemony, egoism, hypocrisy and double standard and implement the basic norms of the international law and international relations through practical actions. - (People's Daily)


Interview with Prof. Tony Carty: China has historical rights in S. China Sea

CCTV reporter Li Jiejun spoke with Professor Tony Carty from Tsinghua University on the South China Sea arbitration. He believes China has historical rights in the South China Sea, and maintained that there are records pointing to the economic use of islands in the region by Chinese fishermen.

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1 comment:

  1. Note that the appointment of arbitrators was made both from two World War II war criminals' allied countries, Germany and Japan !!!

    Quoted: "The Philippines appointed German arbitrator Rudiger Wolfrum, and the four other arbitrators were appointed by Japan's Shunji Yanai, then president of the Hamburg-based International Tribunal of the Law of the Sea (ITLOS):"

    "Yanai's political leanings rules out the possibility of a fair judgement, as he has helped Japanese Prime Minister Shinzo Abe lift the ban on Japan's collective self-defense right and challenge the post-WWII international order."