http://chinadailymail.com/2014/08/03/chinese-media-says-china-should-respect-international-law-to-win-support-from-south-china-sea-countries/
China’s top policy makers must have come to realize that China’s efforts to convince regional states that it has a firm claim to “historic rights” and “indisputable sovereignty” over the South China Sea has been less than successful.
Second, China should reaffirm its adherence to international law
and the Nations Convention on
the Law of the Sea (UNCLOS). China should ensure that all its
domestic legislation is in accord with international law. This will provide a
strong legal and normative basis for Chinese
diplomacy.
China’s top policy makers must have come to realize that China’s efforts to convince regional states that it has a firm claim to “historic rights” and “indisputable sovereignty” over the South China Sea has been less than successful.
Since China has already settled many of its land border disputes
with its neighbours, including Vietnam, the question arises why has China been
so unsuccessful in resolving maritime territorial disputes with Southeast Asian
states? Why have these disputes resulted in confrontation leading to rising
tensions?
This article offers ten modest proposals that if implemented
would result in a sea change in regional attitudes towards China. China would
benefit by upholding international law.
First, China should accept that all regional states genuinely
welcome China peaceful rise. No state wants to confront China or even to
contain it. Many states, like China, experienced colonialist intervention in
their affairs. Therefore China should revisit the Five Principles
of Peaceful Co-existence and sincerely apply these principles
in its diplomatic relations with regional states. It is important that China
and small states treat each other with mutual respect for sovereignty and
territorial integrity, mutual non-aggression, non- interference in each other’s
internal affairs, equality and mutual benefit, and peaceful coexistence.
Third, China should clarify its claims to “historic rights” and
“indisputable sovereignty” with great precision. Up until now Chinese spokesmen
have stated repeatedly that China has sufficient evidence to support these
claims. Yet China has not been forthcoming in providing details. The most
egregious example is China’s u-shaped nine-dash line to mark claims in the South
China Sea. International legal specialists are in agreement that this map
constitutes a “piece of information” only and is not an authoritative
documentation of sovereignty claims.
Fourth, China should draw up a White Paper outlining the basis
of its claims to “historic rights” and “indisputable sovereignty.” Chinese
officials sometimes mention “other international law.” The use of maps dating
back to the Yuan Dynasty do not provide the
evidence required by modern international law. For example, China’s claims to
sovereignty over land features in the South China Sea must be documented by
evidence of when these land features were occupied and details of how they were
administered.
Fifth, sovereignty disputes over territory or land features in
the South China Sea can only be solved by direct negotiation between the states
concerned. Many Southeast Asian diplomats consulted by this writer state that
China has set a pre-condition on bilateral negotiation, namely that they must
recognise Chinese sovereignty claims first. Then and only then can they discuss
mutual cooperation and joint development. China should drop this pre-condition.
Sixth, China should put aside its sovereignty claims and deal
with the status quo by respecting international law. This means accepting that
there are legitimate maritime zones in dispute between China and regional
states. China and other states should refrain from unilateral “sovereignty
enforcement” activities.
Seventh, the important injunction by international law is that
the states in dispute should enter into provisional arrangements until their
dispute is settled, not alter the status quo, and refrain from the threat or
use of force. China and other states – without prejudice to their sovereignty
claims – should work out the temporary demarcation of maritime zones. If the
parties agree they can enter into agreements for fisheries management, joint
development of oil and gas resources and search and rescue.
Eighth, China should reconsider its refusal to accept
international arbitration. After all a Chinese judge sits on the panel of
judges qualified to arbitrate cases under international law. If a Chinese judge
is acceptable to foreign states, why can’t China accept foreign judges in its
case? There are many regional states, such as Indonesia, Malaysia and
Singapore, that have resolved territorial disputes by international arbitration.
China may find that international arbitration is a useful way to settle some of
its territorial disputes.
Ninth, while China is acting within its rights in deciding not
to participate in the Arbitral Tribunal instigated by the Philippines, China should stop
criticising this process. China’s actions are widely viewed as undermining
international law. The Philippines is not directly challenging Chinese
sovereignty or the exemptions China announced when it acceded to UNCLOS. China
uses UNCLOS as the basis for its baselines, territorial waters, contiguous
zone, exclusive economic zone and continental shelf. All the Philippines is
doing, in light of China’s unilateral assertion of sovereignty, is to ask the
Arbitral Tribunal to determine if it has the same entitlements under UNCLOS.
Tenth, if the Arbitral Tribunal determines that the Philippines
has a case in law and that the Tribunal has jurisdiction over the issues
raised, China should reconsider its decision to boycott the Tribunal’s
proceedings. This is important because under UNCLOS the decisions of the
Arbitral Tribunal must be enforced immediately and are not subject to appeal.
China’s rejection of the Arbitral Tribunal out of hand undermines international
law. If China has an indisputable claim to sovereignty, as it repeatedly
states, it should argue its case.
If China were to uphold and follow international law, this would
assist in transforming territorial and maritime disputes from physical
confrontation between China and regional states into a legal confrontation. If
China and regional states accept the decisions of an independent arbitrator,
this will contribute greatly to the goal of making Southeast Asia into a zone
of peace, cooperation and development. This is a win-win situation not only for
China but the small states themselves.
Carlyle A. Thayer,emeritus professor of the University of New South Wales at the
Australian Defense Force Academy, Canberra ROY-If i was China then i would
know how Tribunal etc determinations/findings can be "fixed"- it
happens all the time. I fully respect Chinas suspicions. A better way
initially of handling this is to have a Tribunal SUGGESTION that is based on
what are presented as facts and see if this is ACCEPTABLE to China. This avoids
pushing a solution down Chinas throat!!!!
PS- if UNCLOS was such a "international" agreement
then why did USA refuse to ratify
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