On May 12, 2016, Director-General of the Department of Treaty and Law of the Foreign Ministry Xu Hong held a briefing, giving interview to Chinese and foreign media on the South China Sea arbitration initiated by the Philippines, introducing China's relevant position and stance and answering 11 questions from journalists present. Deputy Director-General of the Information Department of the Foreign Ministry Wang Xining chaired the briefing. The proceedings of the briefing are as follows:
Wang Xining: Good morning, friends from the media. Welcome to the International Press Center of the Foreign Ministry. As the South China Sea arbitration initiated by the Philippines is of great concern to the press, today we have the honor to invite Director-General of the Department of Treaty and Law of the Foreign Ministry Xu Hong for an introduction on relevant policies and position of the Chinese government, expounding from the perspective of international law in particular. Now Director-General Xu Hong will make a brief introduction first.
Xu Hong: Good morning, friends from the media. It is a great pleasure to have this opportunity to have a face-to-face discussion with you on the issues concerning international law in the South China Sea arbitration case.
Recently some media reported that the arbitral tribunal may render a final award in the near future on the South China Sea arbitration unilaterally initiated by the Philippines. People are all concerned about the result and what will be the Chinese government's opinion and response to the award. As a matter of fact, China has stated on various occasions that obviously the arbitral tribunal has no jurisdiction over this case, so a verdict by an illegitimate agency certainly has no legal force and will not lead to any recognition or implementation. Everybody is concerned about whether such stance of China is in conformity with international law. Today I will discuss with you from the perspective of international law. For many of you here, it may be a little bit dull to talk about legal matters. But since the arbitration case is a legal matter itself, we have to touch on it with some legal knowledge.
Before taking your questions, please allow me to make a short illustration.
First of all, let's have a look at the terms of reference of the arbitral tribunal.
As is known to all, "peaceful settlement of international disputes" is an important principle of international law. Nonetheless, there are various ways to settle a dispute peacefully, while compulsory arbitration is just a new procedure set up by the UN Convention on the Law of the Sea (UNCLOS). Compared with such means as negotiations and consultations, this procedure is secondary and supplementary. To put it simply, the procedure's applicability also requires at least four preconditions:
First, it should only be used to solve disputes over the interpretation and application of the UNCLOS. Compulsory arbitration is not applicable to matters beyond the scope of the UNCLOS. That is to say, the issue of territorial sovereignty is not within the scope of adjustment of the UNCLOS, therefore not subject to compulsory arbitration. The arbitral tribunal has no jurisdiction over it.
Second, if a dispute involves maritime delimitation, historic bays or ownership, military operations or law enforcement, a State Party has the right to declare non-acceptance of the compulsory arbitration. Such exception exerts legal effect on other State Parties. This kind of dispute excluded by a country should not be initiated by other countries, nor does the arbitral tribunal have jurisdiction over them.
Third, if disputing parties choose on their own another way to solve relevant disputes, a compulsory arbitration should not be initiated, over which the arbitral tribunal has no jurisdiction either.
Fourth, regarding the procedure, parties concerned must first fulfill the obligation of exchanging views on the settlement approach. If not, they should not initiate a compulsory arbitration over which the arbitral tribunal has no jurisdiction either.
The above four preconditions are in fact the "four thresholds" to be crossed before the State Parties initiate an arbitration and the arbitral tribunal exercises its jurisdiction. They are one-package and balanced provisions that should be fully understood and applied as a whole.
When we talk about international law, we must know first what it is. And what I have just explained to you is international law.
With the above-mentioned preconditions, we can assess the arbitration unilaterally proposed by the Philippines. It can be easily seen that this case has at least violated four aspects of international law.
First, the subject matter of arbitration initiated by the Philippines is in nature an issue of territorial sovereignty of some islands and reefs in the South China Sea, which is beyond the applicable scope of the UNCLOS; second, even if the item involves the interpretation and application of the UNCLOS, it is also an indivisible part of maritime boundary delimitation, which has been excluded in China's statement in 2006 and thus should not be submitted for arbitration; third, China and the Philippines have concluded agreement, consenting to resolve disputes over the South China Sea by negotiation, hence the Philippines has no right to initiate the arbitration unilaterally; fourth, regarding the procedure, the Philippines has not fulfilled its obligation of exchanging opinions with China on the dispute settlement approach.
All in all, the arbitration initiated by the Philippines is a typical abuse of the compulsory arbitration procedure stipulated in the UNCLOS. For the above reasons, this arbitral tribunal should not be set up from the very beginning. In 2014 the Chinese government published its position paper, stating in detail from the perspective of international law why the arbitral tribunal has no jurisdiction over this case. You can refer to that document later.
However, the arbitral tribunal does not uphold an objective and just stance. Instead, it misinterprets the provisions of the UNCLOS and panders to the Philippines in all aspects, violating its primary responsibility of reaching a conclusion about its jurisdiction based on facts and the law. It made a hardly convincible award on jurisdiction. Such an award is null and void based on international law. Any opinion on the arbitration item made by an organization without jurisdiction and that should not appear and exist from the outset can only represent several arbitrators' views at best, and has no legal force, not to mention to be recognized or implemented.
Now I am ready to take questions.
Wang Xining: Please name your agency first. And one question for one person, so more journalists will have the chance.
1.China Daily: Good morning, I'm with China Daily. My question for Director-General Xu is that at present it is generally held by the media that whatever China's viewpoint is, most of the world opinions maintain that the Philippines' initiation of the arbitration is an act in conformity with international law. If China does not execute the arbitral award, it would be regarded as bullying the small by being big and acting against international law. Is China not afraid of being isolated?
Xu Hong: There is indeed such an opinion that since the UNCLOS stipulates that the arbitral award has determinacy, whatever the award is, China has the obligation to abide by and implement it. This opinion, however, is one-sided. According to the general principle of arbitration system, one basic prerequisite for the recognition and implementation of any arbitral award is that the arbitral tribunal must have the jurisdiction over the arbitration item. Otherwise, the arbitration procedure should be not carried out. Even if it is done, the result is invalid, nor should it be recognized or implemented. According to the UNCLOS, the arbitral tribunal cannot act only at its own will when determining the jurisdiction, and must handle things prudently within the scope stipulated by international law including the UNCLOS.
Referring to what I have just introduced, it can be seen that when the arbitral tribunal affirms its jurisdiction over the South China Sea arbitration initiated by the Philippines, it makes many apparent mistakes either in ascertaining the facts or applying the law, which violates the provisions and purpose of the UNCLOS and contains evident expansion and excess of power. It seems that the tribunal has performed every procedure and ensured a fair process, but when it comes to the core, as a result of the serious mistakes in ascertaining the facts and applying the law, the arbitration may end up being a well-designed "show" whose outcome certainly bears no legal force.
Some people just simply cannot wait to jump out and ask China to observe and implement the ruling result even before it is released. So I cannot help asking what kind of result on earth they want China to implement. If the arbitral tribunal just states some legal views on abstract issues not in connection with territorial sovereignty or maritime boundary delimitation, then there will be at most those opinions for us to notice but nothing to implement. If it plans to utilize this award to contain China's sovereignty claim or actions in the South China Sea, this move will only testify the arbitral tribunal's excess of power, then how can the award be effective?
Simply from the perspective of law, whatever opinions China and the Philippines hold, the arbitration should be an ordinary case between the two countries. What position and practice both sides will take, including how to deal with the arbitral award, should be an issue between China and the Philippines. However, the play we are watching now is full of affectation. On the stage are the leading and supporting roles, and down at the auditorium are echoing cappers. What a seamless and boisterous trick! I have no idea if you have seen something like this before, but for me it is the first time. Will you buy it if the case is asserted as a pure event regarding international law and all the above things are coincidences?
On the other hand, we must be aware that compared with all countries around the world, those standing out to hype up this case are in the minor, however loud their voices are and however strong their bluff and bluster are. Besides, as we observe, those keeping blaming China with the excuse of international law are politicians and non-professionals with ulterior motives. It is them who should make up knowledge on international law. The key to this case, as we see it, does not lie in whether China should solve the dispute with the Philippines peacefully in accordance with international law, because the answer is very clear and certain. The key lies in whether China should accept a compulsory arbitration procedure imposed unilaterally and illegally by the Philippines. These two questions are totally different in nature and cannot be confused with each other.
As a matter of fact, there are still many voices of reason. Genuine experts have made not a few sober and objective comments, but their voices are ignored by some people deliberately and selectively. After all, we should proceed from the law and facts. Some people just make disguised replacement of concept, confound the right with the wrong and call white black. For a period they may mislead the public opinion. Nonetheless, even being repeated for a thousand times a lie cannot become truth. We have no way to prevent some from speaking out their views, but we hope that they can make clear of the truth first and equip themselves with greater professional spirit. Facts will prove that China is a firm practitioner and defender of international law and it is not isolated at all. Thank you.
2. British Broadcasting Corporation (BBC): My first question is that if ignoring whether the arbitral tribunal has jurisdiction and whether the arbitral award is legally binding, do you think there is the possibility that the arbitral tribunal will make a decision in China's favor? The second question is that, for those ordinary people who are not so familiar with the international law, it seems that on the map the controversial area of South China Sea is very close to the Philippines, even closer than to China. So it seems to them that the Philippines' argument is more persuasive.
Xu Hong: For the first question, there is definitely no way for us to predict the decision made by the arbitral tribunal. We do not know in whose favor this arbitral award will be. Maybe some countries are in the know, but we are not. However, there is a basic principle in accordance with the law, which is, the arbitral tribunal must have jurisdiction over the case before making any final award. If it has no jurisdiction, then all the following actions will be groundless, and all of its acts, including the so-called arbitral award it makes at last, will be just like water without a source, or a tree without roots. This kind of arbitral award has no legal effect.
As for the second question, I believe that anyone who is not completely ignorant of law knows that it is not the distance that determines whether a country has sovereignty over an area of land. China's sovereignty over the South China Sea islands was established in the history and has been widely accepted by the international community for a long time. So I think that the viewpoint you mentioned is not about the international law. Thank you.
3. China Central Television (CCTV): I would like to raise two questions. For the first one, China insists that the nature of the arbitration case submitted by the Philippines is an issue concerning the territorial sovereignty over some islands and reefs in the South China Sea. But the Philippines did not ask the arbitral tribunal to make a decision on the sovereignty issue. In the arbitral award on the jurisdictional issue made on October 29, 2015, the arbitral tribunal considered that the arbitration case proposed by the Philippines does not concern sovereignty dispute. So why should we believe China's one-sided statement?
As for the second question, some people argue that whether or not the arbitral tribunal has jurisdiction should not be decided by China, but by the tribunal itself. The arbitral tribunal is established in accordance with the UNCLOS and the operation procedures of the arbitral tribunal after its establishment are complete, independent and transparent. Moreover, the arbitral tribunal has decided that it has jurisdiction over this case. Therefore, the arbitral award made by the tribunal is binding on China and China should accept and carry it out, and otherwise, China violates the international law. What's your remark on this viewpoint?
Xu Hong: The first question is very important. In this case, if the Philippines' proceeding in its nature concerns territorial sovereignty and maritime demarcation issues, the arbitral tribunal would certainly have no jurisdiction over this case. We have noticed that the arbitral tribunal gave a conclusion inconsistent with China's stance. In this regard, I would like to explain this issue with facts.
While making the judgment over its jurisdiction, the tribunal has set its own standards for deciding whether the arbitration belongs to sovereignty dispute. Aside from the comprehensiveness and appropriateness of those standards, even if following the tribunal's standards, the conclusion cannot bear close analysis. Based on the standards of the arbitral tribunal, in order to clarify whether the Philippines' proceeding concerns sovereignty, it is necessary to prove that "handling the Philippines' proceeding will directly or indirectly require prior decision of the arbitral tribunal over the sovereignty issue", or "the actual purpose of the Philippines' proceeding is to improve its position in the sovereignty disputes with China". Nevertheless, soon after setting up these standards in the arbitral award, the arbitral tribunal accepted the one-sided statement of the Philippines that no requirement was submitted to the tribunal for making a decision over the sovereignty issue. The tribunal does not explain its acceptance of the Philippines' argument, and fails to investigate the objective relationship between the arbitration case and the sovereignty issue, neglecting the actual purpose and effect of the arbitration proposed by the Philippines.
First, let us look at the objective relationship between the arbitration case and the sovereignty issue. As we all know, China has always been claiming territorial sovereignty over the entire Nansha Islands. Every island, reef, beach and every grain of sand that forms the Nansha Islands belongs to China's land territory. However, the Meiji Reef, Ren'ai Reef, Zhubi Reef, Nanxun Reef and Ximen Reef and others, over which the Philippines proposed for arbitration, are all low tide elevations, thus not concerning any maritime rights and interests. Therefore, this is merely a camouflage.
According to international law, the subject of maritime rights of an island or a reef is the country to which the island or the reef belongs, but not the island or the reef itself. There is a clear correlation between every maritime right and the country. In its norms over territorial waters, contiguous zone, exclusive economic zone, and continental shelf, the UNCLOS explicitly endows the "coastal state" of relevant waters with these maritime rights. It is meaningless to talk about the status and the right of the islands without concerning about the state sovereignty and deciding which country is the "coastal state". This issue does not constitute a real dispute between countries and there is no precedent in international law. Furthermore, whether low tide elevations can be considered as territory is a territorial issue itself. As I have mentioned, the sovereignty issue is not within the scope of the adjustment of the UNCLOS, thus naturally going beyond the interpretation and application of the UNCLOS. Therefore, objectively speaking, the legal status and maritime rights of islands and reefs have an impartible relationship with the sovereignty issue.
The claims in the arbitration case submitted by the Philippines are closely connected to maritime demarcation between China and the Philippines. According to international law, the defining of juridical status and maritime rights of islands and reefs cannot be separated from maritime demarcation, and the former is apparently related to maritime demarcation issues. However, in order to prove that the Philippines' appeal is not within the scope excluded in a statement made by China in 2006, the arbitral tribunal unexpectedly claimed that the two can be separated. Such practice of "division" is neither in line with the normal practice of international law, even nor in accordance with the views held by two of the arbitrators in the tribunal in their previous academic works. Before this case, the two arbitrators always held that the juridical status and maritime rights of islands and reefs are related to maritime demarcation, yet they suddenly reversed their stance. I'm afraid that they need to give a credible explanation to the whole world.
Now, let us find out the Philippines' true purpose to submit the arbitration case. Plenty of evidences demonstrate that the Philippines' true purpose to submit the South China Sea arbitration case is to deny China's territorial sovereignty over the Nansha Islands and legitimize the Philippines' illegal occupation of China's Nansha Islands. I would like to give an example here. On January 23, 2013, the second day after the Philippines launched arbitration procedure, Philippine Ministry of Foreign Affairs released a Q&A paper on arbitration procedure, in which it clearly described the purpose of the arbitration case as to "protect our country's territory and oceanic area", and claimed not to "give up our country's sovereignty". There are more similar declarations by the Philippines. Therefore, though the Philippines technically packaged its appeal in the arbitral tribunal by not directly mentioning the word "sovereignty", the discerning people and experts will discover at the first sight that this is only a trick. It is neither aboveboard nor smart. The Philippines has in fact already baldly spoken out its true intention, but why the tribunal still pretends to be unknown about it, and covers up for the Philippines?
Then let's look at the real effect of the Philippines' proceeding. Actually, the arbitral tribunal's acceptance and acknowledgment of the proceeding initiated by the Philippines will inevitably exert substantive influence on China's territorial sovereignty. The Philippine side has "divided" the Nansha Islands and requires the arbitral tribunal to rule on the legal status and maritime rights of eight islands of the Nansha Islands. If the arbitral tribunal accepts and recognizes such claims, it in fact will deny China's position of claiming territorial sovereignty and maritime rights over Nansha Islands as a whole. I believe everyone has a clear understanding of that. I noted that many media also analyzed that once the arbitration ruling is issued, China's claims to the sovereignty of the South China Sea will be restrained. The design of the Philippines is obvious even for bystanders. Can't the professional arbitrators see it?
And there are more loopholes in the ruling over jurisdiction by the arbitral tribunal as many rationales as well as evidences cannot bear scrutiny. Since the time is limited and we are not having a seminar here today, I'm not going to elaborate on them. What I would like to emphasize is that China also intends to resolve the disputes with the Philippines in a peaceful way. But the question is that whether such disputes could be resolved by mandatory arbitration. It is worth pondering. In terms of major and sensitive issues such as territorial sovereignty and maritime rights, many nations don't accept settlement through a third party, because these issues involve a nation's core interests. No country would accept the jurisdiction of a third-party mechanism which is not chosen out of its own will, or accept solutions imposed by such mechanism.
As for your second question, I have talked about it just now. The arbitral tribunal can make its own judgment over the jurisdiction, but instead of saying whatever it wants, it has to base its judgment on international law, the UNCLOS as well as facts and laws. If the tribunal is only "making a show" rather than following the law, its credibility will be questionable.
This case actually reminds us that how to comprehensively and accurately interpret and apply the mandatory arbitration procedure prescribed by the UNCLOS with kindness calls for the attention of the whole international community. In the future, if other countries abuse the mandatory arbitration mechanism by "packaging" the proceeding just like the Philippines, and if other tribunals ignore the balance established by the UNCLOS and rule beyond their authority willfully just like this arbitral tribunal, then every case can be packaged and submitted for arbitration. The result would be like opening the "Pandora's Box" of arbitration abuse. In particular, the statements of option exception filed by over 30 states around the world according to the UNCLOS will all become waste paper of no use.
I'm afraid it would not be fortune for the international community if this phenomenon ever happens. Such a practice does no good for the peaceful resolution of disputes, and instead, it would harm the reputation of the dispute settlement mechanism of the UNCLOS and destroy the international maritime order established by the UNCLOS. We hope that when considering this issue, every country should not only see the current situation, but also take a sensible and long-term perspective. Thank you.
4.Reuters: You just mentioned that China is not alone in this case, but in fact most of China's supporters are small countries like Fiji and Laos and most western countries don't accept the Chinese government's stance. At the same time, it seems that China is also on a relatively weak ground in terms of public opinion. How does China plan to reinforce its work of public opinion? Would it help to allow foreign journalists to visit the South China Sea and do interviews there? Thank you.
Xu Hong: Thanks. Actually I've also talked about this question just now. Justice will prevail. The right and wrong do not depend on which side speaks louder. It's not a group fighting. As you mentioned, some western countries have voiced views unfavorable to China on the South China Sea arbitration case, but the group of western countries itself cannot represent the whole international community.
As a matter of fact, we have had in-depth discussions with a number of scholars and legal officials from western countries as well. We, so to speak, have consensus on many legal issues and also share concerns about the abuse of compulsory arbitration mechanism. But such voices would not be heard from political figures. This demonstrates that even in the west, there are many sober and objective experts on international law giving fair comments from a professional perspective. If you are interested, you can read their articles. But generally those articles are highly academic and may be dull to read, not as eye-catching as some political language.
You do have a point by saying that China should speak out the facts and reasons if it has. Today I am taking this opportunity to bring the facts and reasons to you. But I am not sure whether I have made myself clear, whether you have taken down all points, and whether you will report them comprehensively later. We welcome anybody to discuss international law with us at any time. Thank you.
5. CCTV 4: Some question that since China has such sufficient reasons, why is it not willing to participate in the arbitration? Some also say that at least China could appear in the tribunal to put in a plea over the jurisdiction. Since China has given up the opportunity, shouldn't it undertake the consequences? Thank you.
Xu Hong: Thanks. I would like to respond to this question briefly in four points.
First, it is the right of a sovereign country to not accept and not participate in an arbitration proceeding. It's completely in line with international law. China, obviously, is not the first one to adopt this practice. It is of no obligation as well as no necessity for China to accept and participate in a clearly unreasonable proceeding. The arbitration initiated by the Philippines lacks the basic ground of international law, so its behavior cannot possibly take any effect in international law or add any obligation to the Chinese side.
Second, China's non-acceptance of and non-participation in the arbitration proceeding is to maintain the seriousness and completeness of international law including the UNCLOS, and to resist the abuse of compulsory arbitration mechanism while honoring the commitments made by China and the Philippines about resolving relevant disputes through negotiations. We should keep those commitments even if the Philippines does not.
Third, neither the Philippines that initiated the arbitration nor some countries that have been giving it a push, aim at genuinely solving the disputes. The Philippines is fully aware that the arbitral tribunal has no jurisdiction over the disputes concerning territorial sovereignty and maritime delimitation between China and the Philippines, that there is no way for China to accept compulsory arbitration and that such approach does no good to settle the issue. Still it abuses the provisions of the UNCLOS, and forcibly initiates and propels the arbitration proceeding. Some other countries give their support on the side for obvious ulterior motives. Why should China engage itself into such a game?
Fourth, Whether China accepts and participates in the arbitration proceeding or not, the tribunal bears the obligation of ascertaining its jurisdiction over the disputes as stipulated in international law. But we see that the tribunal didn't fulfill its obligation, thus its rulings are invalid. Therefore, China needs to undertake no consequence. If there is any consequence, it should all be shouldered by the Philippines as the consequence is brought by its abuse of the UNCLOS. Thank you.
6.Press Trust of India: There are many successful cases of disputes settlement in accordance with the UNCLOS. As recently as last year, India and Bangladesh reached an agreement on the maritime disputes between the two countries. India made some compromise on the scope of the sea area it had claimed. Could this be regarded as a successful case of dispute settlement by applying arbitration procedures under the UNCLOS? Does China believe that the entire arbitration case is a conspiracy against China? Since the UNCLOS is a convention under the UN framework and China is one of the most influential members of the UN, why does China have such strong reactions against this case?
Xu Hong: Thank you. I have mentioned above many viewpoints which all indicate that the compulsory arbitration case filed by the Philippines is in violation of the UNCLOS. We should fully and comprehensively understand the dispute settlement mechanism provided in the UNCLOS and notice that the compulsory arbitration procedure is only a very secondary and supplementary procedure.
Dispute settlement mechanism is one of the pillars of maritime legal order established by the UNCLOS. It aims at promoting the peaceful settlement of maritime disputes and consolidating peaceful, secure, cooperative and friendly relations among states. To this end, the UNCLOS provides a two-tier dispute settlement mechanism in which the procedures voluntarily selected by State Parties should be given prior application and the mandatory procedure should be put in the secondary and supplementary place. Therefore, we must make it clear that the dispute settlement mechanism under the UNCLOS is more than mandatory arbitration. In fact, the UNCLOS first puts emphasis on respecting the state's voluntary choice or free will. The UNCLOS contains a series of provisions which embody this principle. Due to time limit, I will not elaborate on them in detail. But if you read the UNCLOS carefully, it is not difficult for you to understand this principle.
Just now you have mentioned the experience of India. I think India resolves the disputes with relevant countries also on a voluntary basis. No matter what procedure concerned parties submit, they do it out of their own free will. As far as the South China Sea issue is concerned, it is a political decision made by China and other parties in the South China Sea after long-term communication and consultations to settle related disputes through negotiations and consultations. The decision is not only written in the Declaration on the Conduct of Parties in the South China Sea, but also repeatedly reaffirmed in documents like the joint statements between leaders, high-ranking officials and governments of China and relevant states.
China, as a responsible major country, has always insisted on resolving disputes concerning the South China Sea in accordance with international law including the UNCLOS through friendly consultations and negotiations. Since the South China Sea issue is concerned with many countries and involves a variety of complex historical background and sensitive political factors, it requires patience and political wisdom of all parties to address the issue ultimately. Precisely because countries can fully, freely and systematically express their concerns and exchange viewpoints in negotiations, negotiation is the most direct and effective method that most commonly adopted in international practices to resolve disputes among states.
China's stance of insisting on resolving relevant disputes through friendly consultations and negotiations is in full compliance with the UNCLOS. On the contrary, some people say that only by accepting the arbitration could we be in conformity with the UNCLOS. I think such statement is plain ignorance of the UNCLOS. Thanks.
7. China Radio International (CRI): Good morning, Director Xu. I'm with CRI. Since you've just elaborated much on the illegitimacy of the arbitration, my question would be that will China take legal measures in response after the arbitral award is released? Will China deploy any countermeasures? And how will China respond if the Philippines proposes negotiation on the basis of the arbitral award?
Xu Hong: Thank you. As I have just mentioned, the South China Sea arbitration has already become a "show", so who's going to be serious about the results of a "show"? I would like to emphasize three points here:
First, China's position on the South China Sea issue will never be changed. The Philippines' unilateral initiation of the present arbitration, alongside with the tribunal's arbitral award, will not change the history and the fact of China's sovereignty over the South China Sea islands and the adjacent waters. Their acts will not shake China's resolution and determination to safeguard its sovereignty and maritime rights and interests, nor will they affect the policy and position of China to resolve relevant disputes through direct negotiations and to work together with other states in the region to maintain peace and stability in the South China Sea. We hope that any party involved will not be hijacked by this arbitration.
Second, China will never agree bargain over the South China Sea issue from any country on a basis of an unauthorized and ineffective arbitral award, and will never accept any propositions from any country based on such arbitration. We hope that the Philippines could realize its errors and return to the right track of resolving disputes through negotiations and consultations.
Third, should any force intends to take this so-called arbitral award as an excuse to do harm to China's sovereignty and rights and interests, China will only take a strong position in response. Thank you.
8. National Public Radio (NPR) of the US: It is said that one purpose of this arbitration is to confirm the legal status of China's "Nine-dash Line". For now China does not participate in the arbitration, and the Philippines will have a new president who appears willing to negotiate with China. My question is that does China regard the "Nine-dash Line" as a negotiable issue? Will China put forward the specific coordinates of the line in bilateral negotiations? And is it possible for China to reach bilateral or multilateral agreements with other countries through peaceful negotiations in this regard?
Xu Hong: The "Nine-dash Line" you mentioned is in fact China's dotted line in South China Sea. I have to emphasize that China's sovereignty over and relevant rights in the South China Sea are formed during a long historical course and are upheld by successive Chinese governments.
As early as 1948, China had already marked the dotted line in the South China Sea in its officially-published map. This mark serves as a confirmation of China's established rights over the South China Sea in historic course rather than setting down new rights. For a considerably long period, no country had ever raised any objection to the line. Furthermore, many countries have even marked this dotted line in their officially-published maps.
In recent years, some countries criticized the dotted line in South China Sea with real purposes of deliberately confusing territorial disputes and maritime delimitation disputes. In this manner they try to deny China's sovereignty over the South China Sea islands and the adjacent waters to cover up the fact of their illegal occupation of some islands and reefs of China's Nansha Islands.
Back to the arbitration case, the Philippines requested the arbitral tribunal to determine whether China's claimed maritime rights and interests are in line with the UNCLOS. As I have already mentioned, to determine this issue, firstly we need to decide China's territorial sovereignty over the South China Sea, as according to international law the territorial sovereignty of a state serves as the basis of its maritime rights and interests. Without determining China's territorial sovereignty over the Nansha Islands, it would be impossible to decide China's due maritime rights in South China Sea according to the UNCLOS, let alone to judge whether China's claimed maritime rights in the South China Sea are within the scope of the UNCLOS.
On the other hand, we should also notice that the history of the dotted line in South China Sea is much longer than that of the UNCLOS, and the UNCLOS does not represent the entire body of international maritime law. By all measures, the arbitral tribunal has no jurisdiction over the dotted line in South China Sea. As for negotiations, we have reaffirmed multiple times that we hope to resolve disputes through consultations and negotiations with relevant parties on the basis of respecting historical facts and the international law. The door for negotiation is always open. Thank you.
9. Xinhua News Agency: Some countries hold that China's presence in the South China Sea will influence freedom of navigation in the area, what's your opinion? And what's your opinion on "freedom of navigation operations" conducted by the US warships in the South China Sea?
Xu Hong: Thank you. Speaking of the freedom of navigation, I would like to clarify two concepts. One is the "freedom of navigation" in international law, and the other is the so-called "freedom of navigation operations", or "freedom of navigation plan" launched by the US. The two concepts are totally distinct from each other, so we cannot confuse them.
There has never been any problem with the freedom of navigation recognized by international law, especially the freedom of navigation of all countries in the South China Sea. I have never heard about any country that truly received complaint in this regard or complained that their merchant ships or companies encountered problems regarding the freedom of navigation in the South China Sea. Instead, we have seen many reports saying that there's no problem with security and freedom of navigation in the South China Sea, which is fully safeguarded. Therefore, the so-called problem of freedom of navigation in the South China Sea hyped up by some countries is sheer imagery.
In terms of the "freedom of navigation operations" launched by the US, it is another story. The so-called "freedom of navigation operations" are a special concept. They are unilateral actions launched by the US in 1979 to object to some regulations stipulated in the UNCLOS, for the purpose of challenging other countries' maritime claims which are "excessive" in the eye of the US. Such operations in themselves are against the UNCLOS, as evidenced by the following two violation points:
First, they pursue the old system of the maritime law, regarding contiguous zones and exclusive economic zones as "international waters" and high seas.
Second, they equate the freedom of navigation with absolute freedom without any restriction, entirely depart from various restrictions on freedom of navigation set out by the UNCLOS and the customary international law, and meanwhile are not in line with the principles of peaceful use of the sea, cooperation, and proper consideration of other countries' rights.
In the surrounding waters of China's islands and reefs in the South China Sea, the US puts forward the so-called "innocent passage". In fact, we know that according to the UNCLOS, "innocent passage" bears specific meaning. It must be innocent, and shall be only limited to passage. "Innocent" means that when foreign ships are passing the territorial waters, they shall not be prejudicial to the peace, good order or security of the coastal countries. Clear definitions on what can be considered "innocent" are also set forth in the UNCLOS. Operations, if they will cast martial threats to sovereignty and territorial integrity or political independence of the coastal countries or will use force, if they are to conduct military exercise, if they are to collect defense intelligence of the coastal countries, if they are propaganda behaviors that will influence the defense or security of the coastal countries, or if they will disturb the telecommunication system of the coastal countries and things like that, are not innocent.
It is not explicitly provided in the UNCLOS whether foreign warships have the right of innocent passage, but many countries in the world require permission or prior notice of foreign warships before entering their territorial waters so as to safeguard peace and safety of coastal countries. Such regulation is not to restrict innocent passage stated in the UNCLOS but to better ensure the implementation of this kind of innocent passage on the premise of conforming to the purpose and principle of the UNCLOS.
US warships deliberately navigate in the narrow seaway adjacent to Chinese islands and reefs rather than other broad sea areas, which I'm afraid is neither "innocent" nor "passage". Even the US said that this is a challenge and a show-off of its force. The US has not approved the UNCOLS so far, but it challenges other countries' domestic laws enacted according to the UNCOLS. I have no idea who gives it such kind of right! They act in the name of "freedom of navigation", but in fact such actions are very likely to cause conflicts and inflict regional tension, which eventually will hamper the real freedom of navigation. Thank you.
Wang Xining: This is the end of today's briefing. Thanks for coming.
Xu Hong: Thank you.