【Violation of International Law】
The accusation against China over its violation of international law is abstract at best, without any reasoning and basis under international law. As a scholar who studies and practices international law at home and abroad for sixteen years, I couldn’t find any violation of positive law by China in this regard. Some countries are talking in the abstract and only chanting slogans when they accuse China of showing no respect for international law. No one has ever told exactly which rule of international law China has broken. It is a typical example of cold war mentality, double standard, and distortion of state of mind of some countries. China's maintenance and construction work on some of the garrisoned Nansha islands and reefs, of which it has sovereignty and effective control, is its internal affairs and is well within China's sovereignty. It does not encroach on the sovereignty of any other countries or violate any international treaties or customary international laws. Take the DOC for example, the article 5 of DOC does require 'refraining from action of inhabiting on the presently uninhabited islands, reefs, shoals, cays, and other features', but all the Chinese islands under construction and maintenance are already garrisoned by Chinese armed forces long time ago. None of those islands are newly built islands or artificial islands.
It is not that those countries do not want to specify which rules have been broken, but that they cannot find any in the current system of international law or what they have found could hardly hold water. As Daniel Russel, US assistant secretary of state for East Asia, was quote as saying in a telephone interview that "Reclamation isn't necessarily a violation of international law, but it's certainly violating the harmony, the feng shui, of Southeast Asia" Then why do they repeatedly make groundless charges against China while ignoring the wrongdoings of some other countries? First, they do not feel comfortable with a stronger China. They are more inclined to deal with a poor and backward China, instead of a prosperous and rich one. They are worried that a strong enough China may seek global dominance and challenge the international order dominated by them, just as they did in the past. Since they are ill at ease and cannot find any concrete reasons, they have to say that China violates international law in vague terms.
Second, they have biased views of China and use double standards in dealing with China by making senseless generalizations and irresponsible comments. For example, for a long time the Philippines and other countries have been building airports and runways on illegally occupied Chinese islands, relocating their people and developing tourism there. Neither the United States nor Japan has ever blamed them for violating international law, engaging in unilateral action or undermining the freedom of navigation in the South China Sea. But they accuse China whenever it builds infrastructure on its own islands. This is an excellent example of double standards. Some others, though agreeing China's maintenance and building work is legitimate, question the scale of the work which they say is much larger than what the Philippines and other countries have done. Nations take different shares of international responsibility due to different size of territory. After all, China pays more money to the United Nations than the Philippines.
And the Chinese government carried out maintenance and construction work on some of the garrisoned Nansha islands and reefs with the main purposes of optimizing their functions, improving the living and working conditions of personnel stationed there, better safeguarding territorial sovereignty and maritime rights and interests, as well as better performing China's international responsibility and obligation in maritime search and rescue, disaster prevention and mitigation, marine science and research, meteorological observation, environmental protection, navigation safety, fishery production service and other areas. The relevant construction, which is reasonable, justified and lawful, is well within China's sovereignty. It does not impact or target any country, and is thus beyond reproach. China's activities are completely different from those of some other countries that have hidden motives. China needs a certain scale of construction to fulfill its international duties in public welfare, service and cooperation. However, China is often wrongfully labeled as violation of international law because of these lawful activities. In contrast, though I am not applying Tu-Quoque logic, the United States invaded Iraq in 2003 without the authorization from the UNSC, mistreated those detained in Abu Ghraib prison, refused to grant POW status and humane treatment to those imprisoned in Guantanamo Bay detention camp, conducted online spying globally, discriminated domestically against black Americans, though such behavior is strongly opposed by many international organizations and non-governmental organizations, other countries have never put labels on US and no one has denied the fact that the United States is still a democratic country.
As for China's attitude toward international law, China is a staunch guardian of post-war international order and justice and is committed to the basic principles of international law with the UN Charter at the core and basic norms governing international relations, as noted by Vice Foreign Minister Liu Zhenmin. So far China has signed 23,000 bilateral treaties, acceded to more than 400 multilateral treaties, and joined all UN bodies and a large majority of global inter-governmental organizations. China fulfills its obligations stipulated in the treaties and takes its full share of international responsibility. China has integrated itself into the contemporary international order. The accusation against China is unfair and unfounded.
In fact, China has created a miracle in the history of international law by solving territorial disputes through peaceful means and bilateral agreements according to international law. With a land territory of 9.6 million square kilometers, China has more than 22,000 km of land border, over 18,000 km of continental shoreline and over 14,000 km of island coastline. It is one of the countries in the world that have the most neighboring countries and the longest land border. Despite such a complicated situation of land border demarcation, China has completely solved the issue of land border demarcation with 12 out of its 14 neighbors by conducting friendly consultations and signing bilateral agreements. Borders surveyed and demarcated add up to 20,000 km, accounting for 90% of China's total land border, which is very rare in the world. Even for maritime disputes, China has also signed its first maritime delimitation agreement with Vietnam in the Bei Bu Gulf in 2000, and has positively participated in consultations in this respect with South Korea and Japan. Those bilateral agreements constitute one of the most important sources of international law, i.e. treaties. If we take a look at how other major countries demarcated their land border in history, what China has done is indeed a miracle in the history of international law. However, there are still people who intentionally turn a blind eye to China's efforts to solve territorial disputes peacefully.
In addition, China's position on solving maritime disputes peacefully through diplomatic dialogue and negotiation conforms to the norms of international law and relevant international practices. Take the South China Sea for example. China's refusal to accept or participate in the arbitration proposed by the Philippines is in compliance with international law. First of all, arbitration is not the only way to solve disputes between nations. The main and also preferred way of peaceful settlement of disputes is still direct negotiations between the concerned nations instead of arbitration. According to Article 279 of the United Nations Convention on the Law of the Sea, “States Parties shall settle any dispute between them concerning the interpretation or application of this Convention by peaceful means in accordance with Article 2, paragraph 3, of the Charter of the United Nations and, to this end, shall seek a solution by the means indicated in Article 33, paragraph 1, of the Charter.” It is stipulated in Article 33 of the Charter that “the parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.”
Attention shall be paid to two points in this stipulation. First, negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements and the like are all lawful ways for peaceful settlement of international disputes. The second point is that judicial settlement is just one of the ways and is ranked in the latter part of the list, whereas negotiation, which is put first, remains the main and preferred approach. As a matter of fact, a lot of disputes between nations are peacefully solved through bilateral negotiation and only very few of them were referred to the International Court of Justice. The first case entered in the General List of the Court (Corfu Channel (United Kingdom v. Albania)) was submitted on 22 May 1947. From 22 May 1947 to 24 April 2015, 161 cases were entered in the General List.
Second, China's refusal to accept or participate in arbitration is a legal choice made according to the United Nations Convention on the Law of the Sea, Article 280 of which states that “nothing in this Part impairs the right of any States Parties to agree at any time to settle a dispute between them concerning the interpretation or application of this Convention by any peaceful means of their own choice.” In other words, instead of mandating arbitration, the Convention provides many legal options. Therefore, China's "refusal to accept or participate in arbitration" per se is in line with the Convention and is completely lawful. "Refusing to accept the jurisdiction of a certain arbitral court" shall not be equated with "violating international law and challenging international rules". They are not necessarily co-related.
Take the International Court of Justice, the judicial organ of the United Nations, for instance. So far 71 nations have filed declarations with the UN Secretary General recognizing as compulsory the jurisdiction of the International Court of Justice. Even for those countries, the declarations they deposited with the Secretary General often contain reservations excluding certain categories of dispute. Given that the UN has 193 member states, can we say that the other 122 members that haven't filed declarations are all challengers of international rules? On April 9, 1984, Nicaragua sued the United States to the International Court of Justice, claiming that the United States should take responsibilities for the military and paramilitary activities in and against Nicaragua. The ICJ ruled in favor of Nicaragua and against the United States and awarded reparations to Nicaragua. The ICJ held that the U.S. had violated international law by supporting the Contras in their rebellion against the Nicaraguan government and by mining Nicaragua's harbors. The United States refused to participate in the proceedings after the Court rejected its argument that the ICJ lacked jurisdiction to hear the case. The U.S. later blocked enforcement of the judgment by the United Nations Security Council and thereby prevented Nicaragua from obtaining any actual compensation. Though not arguing from the logic of Tu Quoque, Can we call the United States a challenger of the rules of international law on the ground of this case?
Finally, many media hype up tensions in the South China Sea by alleging that China claims ownership over the entire of waters and islands within 9-dash line. This is a sheer lie. Chinese government has never ever made such a claim. The consistent position of China has been that China has indisputable sovereignty over the Nansha Islands and their adjacent waters. Beyond these islands and adjacent waters there are vast maritime areas which are used for international navigation and which is yet to be delimited by relevant countries.
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