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Pamphlets titled 'Facts and Policy; The China-Philippine Dispute in the South China Sea' and the policy paper on China's position on the ruling of an international tribunal on the South China Sea are seen beside a reporter during a press conference in Beijing. Photo: EPA

South China Sea: Beijing’s case against forced arbitration

China says a declaration it made a decade ago should have prevented the Permanent Court of Arbitration from ruling on the South China Sea disputes, and also justified Beijing’s decision not to take part in the Hague ­proceedings.

Even though the decision to ­ignore the tribunal’s ruling has raised questions about Beijing’s respect for international law, ­China insisted the international tribunal had no jurisdiction to ­decide the case.

Beijing’s main argument, presented in a series of official statements between 2014 and the ­release of a white paper yesterday, is that the South China Sea ­disputes are inseparable from sovereignty issues.

As such, the issues were ­beyond the scope of the United Nations Convention of the Law of the Sea ­(Unclos), which the tribunal referred to in its ruling delivered on Tuesday.

The official documents from Beijing stated that the tribunal, formed under the convention, had no jurisdiction to decide issues of sovereignty.

In a lengthy article released by Xinhua after the ruling, China said it released a written declaration in 2006 that said disputes concerning maritime delimitation and other issues should not be settled through compulsory procedures without its agreement.

But the tribunal still accepted the case and declared its own jurisdiction over the issue.

Despite saying in the ruling it did not decide on sovereignty and maritime delimitation, the tribunal did determine whether the land features in the disputed waters were islands or not, and commented on some of China’s law enforcement activities in the waters.

Legal experts said such decisions touched on sovereignty issues.

“It is the terrestrial territorial situation that must be taken as a starting point for the determination of the maritime rights of a coastal state,” Chris Whomersley, a former deputy legal adviser to the British Foreign and Commonwealth Office, said in a recent ­article.

It seemed unprecedented for an international tribunal to consider the status of a feature when the territorial sovereignty over that feature was disputed, he added.

In its ruling, the tribunal ­declared that Mischief Reef was a low-tide elevation not capable of appropriation by occupation.

John Mo, chair professor of law at the University of Macau, said the question about appropriation clearly concerned whether low-tide elevations were subject to claims of territorial sovereignty.

“Whatever the tribunal decides, it is logically contradicted,” he said.

The other argument cited by Beijing is a document signed with the 10 Asean nations in 2002, which stipulates that territorial disputes should be resolved through bilateral negotiations.

The Philippines claimed it had used up all other negotiation means by presenting to the tribunal exchanges with China since 1995. Manila said the Asean document was not a legally binding agreement, but only an “aspirational political document”.

China disputed that the previous consultations were never about the disputes of the arbitration. Beijing also accused the ­Benigno Aquino administration of not responding to its constant requests for talks.

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