The Abstracts of Vol.4,2016
Releasing Time：07.16.2016Source：
Compulsory Dispute Settlement System of the UN
Convention on the Law of the Sea
Antonios Tzanakopoulos
The provisions on the compulsory dispute settlement system in Part XV of the UN Convention on the Law of the Sea is essentially a compromissory clause facing great limitations when dealing with the South China Sea issue.First, the dispute settlement system is compulsory only to an extent, section 1 and 2 of Part XV provide caveats and optional carve-outs for the state parties to escape the system.Second, the China-Philippines SCS dispute is obviously over sovereignty over maritime boundary delimitation, which is not within the scope of jurisdiction.The ruling by the Tribunal on maritime features and the validity of nine-dash-line will prejudge China’s claim.Third, can Declaration on the Code of Conduct on the South China Sea agreed by China and Philippines as well as the declaration made by China under Article 298 remove the jurisdiction of the Tribunal? There is no convincing reflection from the Tribunal. Fourth, the indispensable third parties and mootness makes the dispute inadmissible.
Beyond the Territorial Disputes: the Old Conceptions and
New Framework of China-Philippines Relations
Li Kaisheng
The current stalemate of China-Philippines relations is not only derived from the zero-sum territorial competition on the South China Sea, but also rooted deeply in the mutual misconceptions between both sides.The China’s beliefs on the Philippines are mainly related with the latter’s foreign affairs, such as considering the Philippines as a dependent partner of the U.S.with little geopolitical importance, and underestimating the domestic factors of the Philippine foreign affairs.The Philippine misconceptions focus on China’s territorial policies and it believes that the highest goal of China is to control more features, there is no possibility to resolve the disputes by political negotiation and China would have to be succumbed to the US intervention.The mutual misconceptions have exaggerated the conflict of interests, led to miscalculations in the South China Sea issue and the China-Philippines relations are thus hijacked by the territorial disputes.There are two implications of recognizing these misconceptions and consequent dilemma The current implication is two countries should find a compromise way to control the disputes and prevent further conflicts.The future implication is to restart and develop a strategic framework for cultivating the mutual strategic trust and maintaining the long-term stability of bilateral relations When President Duterte comes to power, both countries should develop more opportunities to achieve these goals and lay down a solid foundation towards the stable and better bilateral relations.
The South China Sea Arbitration Tribunal’s Jurisdictional
Proceedings and the Philippineand China’s Policy Options
Yu Mincai
The South China Sea Arbitration Tribunal separately dealing with the jurisdiction of the case is the continuance of the set practice by the United Nations Convention on the Law of the Sea’s Annex VII arbitral tribunals of bifurcation of proceedings, and was the best option for it to treat with China’s objections to its jurisdiction in the circumstance of China’s non-acceptance of and non-participation in the arbitral proceedings.Such a procedure has potentially important implications for the Tribunal itself and for both the Philippines and China.The Tribunal’decision to have jurisdiction over some parts of the Philippines’submissions resumed the merits proceedings of the case.One of the proper options available for China might be to participate in the merits proceedings, while the right option for the Philippines should be to negotiate with China to achieve a win-win settled agreement, and to request, unilaterally or jointly, the termination of the proceedings.
Attitudes of the Dispute Settlement Body on
Non-Appearance—the Comparison “Arctic Sunrise” Case and
the Sino-Philippines South China Sea Arbitration
Zhang Yanqiang
On 18 September 2013, in order to protest Russia’s oil drilling in Arctic, 30 Greenpeace International activists who were on board the MV Arctic Sunrise（a Netherlands flagged vessel）attempted to board Russias oil platform.The Russian authority arrested and detained the vessel and its crew members.On 4 October 2013, the Netherlands instituted arbitral proceedings under Annex VII of UNCLOS against the Russian Federation.Pending the constitution of the arbitral tribunal, the Netherlands requested the International Tribunal for the Law of the Sea（ITLOS）for the prescription of provisional measures under Article 290, paragraph 5 of UNCLOS on 21 October, for the immediate release of the vessel and its crew members.Russia declared that it does not accept the jurisdiction of the ITLOS and refused to attend the proceedings.On 22 January 2013, the Government of the Philippines initiated arbitral proceedings to challenge China’s claims to sovereignty and sovereign rights over areas of the South China Sea and the underlying seabed within the “U-Shaped Line”.China did not attend the arbitral proceedings in this case as well.This article offers an analysis of the facts and reasoning concerning non-appearance in the “Arctic Sunrise” case and the Sino-Philippines South China Sea Arbitration.Furthermore, this article explores the views as well as attitudes of the UNCLOS dispute settlement mechanisms towards non-appearance.
A Study of China’s Historic Rights in SCS:from the Perspective of
Arbitration Case between China and the Philippines
Fan Wenguang
With regard to the South China Sea disputes, China has found it difficult to claim its historic rights beyond jurisdiction of the United Nations Convention on the Law of the Sea（UNCLOS）while having those claims recognized by the UNCLOS.The difficulty is rooted in two weaknesses of Chinas claims: first, they tend to apply historic rights to all disputed areas in the South China Sea, which is in conflict with related clauses in the UNCLOS; second, the source of law on China’s claims of historic rights is different from that of the UNCLOS, whose jurisdiction covers disputes over maritime rights nonetheless.It can be found that only if China elaborates on the source of law, nature and contents of its historic rights in the South China Sea that are different from those of the UNCLOS, can it avoid being subject to jurisdiction of the UNCLOS on this issue by appealing to the “Preamble” of the UNCLOS that affirms “that matters not regulated by this Convention continue to be governed by the rules and principles of general international law”Through a comprehensive analysis of historic rights, this paper argues that historic rights are different from other rights stipulated in the UNCLOS and thus shall not be put under the jurisdiction of the UNCLOS.The paper also explains the coexistence between historic rights and other rights stipulated in the UNCLOS, confirming that claims to historic rights should be respected by the UNCLOS.
An Investigation and Examination of the Coverage on the South China Sea Arbitration of the International Mainstream Media
Kong Lingjie Wang Kan Liu Congcong
The South China Sea Arbitration has already been a hot issue followed up by domestic and foreign media since the Philippines initiated arbitral proceedings against China in January, 2013. Obviously, it will contribute to our international publicity by conducting the following things: investigating into the coverage on the South China Sea Arbitration of the international mainstream media, sorting out reporting techniques frequently used, identifying factual mistakes commonly seen in their coverage and summarizing the competing points of view on this case between the international mainstream media and the Chinese official media.An investigation and examination of the coverage on the South China Sea Arbitration of the international mainstream media between 2013 and 2015 draws the following conclusions.Totally, these media adopt eight reporting techniques, such as “Amazing headlines”, “One-sided coverage”, “Distorting facts”, bring with constant repetition of eight factual mistakes, such as, “China claims sovereignty to virtually all the South China Sea”, and have direct views confrontation against China from six perspectives, such as the cause of the case, legality of China’s position and policies.That the international mainstream media covers the case in a noticeably subjective, one-sided and misleading manner has a negative effect on international community’s objective cognition of the case and gravely weakens Chinese governmental international discourse expression.With adherence to the fundamental principles of “towage struggles we should be on just grounds, to our advantage and with restraint”, it is necessary for Chinese government to actively take essential and appropriate measures to promote international publicity on the case and to take every effort to minimize negative effects on China.
New Changes of ASEAN’s Relations with China Caused By South China Sea Issue
Lu Jianren
Since Huangyan Island incident happened in April 2012, the ASEAN’s relations with China have undergone three changes. First, the overall attitude of ASEAN toward China on the South China Sea issue has been increasingly tougher.Second, the political mutual trust between ASEAN and China is backsliding.Third,ASEAN attempts to reduce its economic dependence on China.These three changes have affected the upgrading and further development of the bilateral relations.The paper analyses the causes of these three changes from the economic angle and makes some policy recommendations on the improvement of China-ASEAN relations.
Geographical and Historical Evolution of “North Island” in Philippines Map Exhibition
Xu Panqing Shen Guchao
In 2014, a Map Gallery “Historical Truths and Lies about Scarborough Shoal in Ancient Maps” held by a Philippine judge named Antonio T.Capio in the Philippines, exhibiting western ancient maps to claim Philippines’s sovereignty over Scarborough Shoal.Judge Capio declared an island west to Luzon Island in the map made by Matthaus Merian in 1636 as today’s Scarborough Shoal.His opinion was then supported by the Philippine government and publicized by the western media.Through Overlay Analysis and with the evidence of Dudley’s map, the paper proved that the island is not what we call Scarborough Shoal today, but the vanished “North Island”（119°E, 17°N）, which is located at a place over 220 kilometers northeast to Scarborough Shoal.The author also wanted to verify that the “North Island” was discovered by the Portuguese and named by a Dutch cartographer.But there is still no evidence supporting Capio’s opinion that the island was a military facility belonging to Spain, the suzerain of the Philippines.