In a recent interview with China's Xinhua News Agency, Xu Hong, head of the Department of Treaty and Law of the Chinese Foreign Ministry, commented on the Position Paper. Edited excerpts of the interview follow:

Why did the Chinese Government publish the Position Paper?

Xu: On January 22, 2013, the Philippines unilaterally initiated international arbitral proceedings regarding its dispute with China in the South China Sea. The Chinese Government is firmly opposed to this, and has reiterated on several occasions its position to neither accept nor participate in the arbitration.

Despite China's objection, the Philippines has been obstinately pushing the arbitral proceedings. Some people, who do not know the truth, have questioned China's position of not accepting or participating in the arbitration. Some others, who harbor ulterior motives, have made one-sided and misleading readings of international rules and, on that basis, made accusations or insinuations that China does not abide by international law, and have branded China as a "challenger" to international rules.

In response to this situation and with a view to clearing up the confusion, the Chinese Government published the Position Paper to elaborate on the legal basis for China's position that the Arbitral Tribunal has no jurisdiction in this case and to demonstrate that China's position not to accept or participate in the proceedings stands on solid ground in international law.

The Chinese Government's Position Paper clearly states that the Arbitral Tribunal has no jurisdiction in the arbitration initiated by the Philippines. What are the grounds for this position?

Xu: It is quite obvious that the Arbitral Tribunal has no jurisdiction in the arbitration. The Position Paper presents this view by making analyses from the following three aspects:

First, the essence of the Philippines' claims. The subject matter of the Philippines' claims is essentially an issue of territorial sovereignty—one which, however, goes beyond the scope of the UN Convention on the Law of the Sea (Convention). The dispute settlement procedures within the framework of the Convention are confined to disputes concerning the interpretation or application of the Convention and therefore are not competent for addressing a matter that falls outside the scope of the Convention.

Second, the bilateral agreement reached between China and the Philippines concerning this issue. Through a series of bilateral and multilateral instruments, China and the Philippines have agreed to settle their disputes in the South China Sea through friendly consultations and negotiations, to the exclusion of all other means. This is a mutual obligation binding on the two states under international law. By unilaterally submitting the dispute to arbitration, the Philippines has breached the agreement between the two states and violated international law.

Third, the dispute settlement clauses of the Convention itself. Even if the subject matter of the Philippines' claims could be considered in part as concerning the interpretation or application of the Convention, it constitutes an integral part of maritime delimitation between China and the Philippines. However, China has already excluded, through a declaration made in 2006 pursuant to Article 298 of the Convention, disputes concerning maritime delimitation, inter alia, from the application of arbitration and other compulsory procedures.

It follows from the above three points that the Arbitral Tribunal has no jurisdiction over the claims that the Philippines has submitted for arbitration.

There is one view stating that the arbitration the Philippines has initiated pursuant to the Convention is in itself a peaceful means of dispute settlement; yet, China, a party to the Convention and a champion of peaceful settlement of international disputes, has refused to accept or participate in this arbitration. This makes China's stance look unconvincing. How would you comment on this?

Xu: States have at their disposal many ways of resolving disputes peacefully. The most important and preferred means is direct negotiation between the state parties to a dispute, rather than arbitration.

Under international law, it is the sovereign right of the states concerned to choose a means of dispute settlement. Arbitration is only one of the means, and it must be based on the principle of consent. In a bilateral dispute, if one party does not accept or participate in arbitration, the other party shall not institute arbitration against its will.

Although the Convention provides for arbitration and other compulsory procedures for dispute settlement, recourse to this category of procedures is subject to conditions and constraints. This category of procedures can only be employed to settle disputes concerning the interpretation or application of the Convention. If the state parties to a dispute have chosen other means of dispute settlement of their own accord, the chosen means has priority over this category of procedures. Furthermore, a state party may also make a declaration pursuant to the Convention to exclude specified categories of disputes from the application of the compulsory procedures.

Regarding the arbitration initiated by the Philippines, as discussed above, the essence of the subject matter of its claims is territorial sovereignty, an issue completely beyond the scope of the Convention. China and the Philippines have reached agreement to settle their relevant disputes through negotiation. And China has never accepted any compulsory procedures for the relevant disputes. It follows that the unilateral initiation of compulsory arbitration by the Philippines is a clear abuse of the compulsory procedures provided for in the Convention. Such a practice is and should be frowned upon internationally. By refusing to accept or participate in the arbitration initiated by the Philippines China is defending its sovereign right to choose a means of dispute settlement of its free will. Our decision is an exercise of the rights we enjoy under international law, and is well founded on international law.