South China Sea arbitration: don’t count on a decisive Philippines win

Thomas_Aboagye_Mensah_-_Flickr_image_8671842802

Thomas A. Mensah, Presiding Arbitrator of the Philippines vs China arbitral tribunal. Among Judge Mensah’s many qualifications, he was the inaugural President of the ITLOS, on which he served from 1996 to 2005. Contrary to PRC propaganda claiming the arbitral tribunal is “presided over by a former Japanese diplomat” Judge Mensah is from Ghana.

Here’s a bit of speculation ahead of the UNCLOS arbitration decision on Tuesday, written for the Australian Institute of International Affairs’s website.

My argument is that, however shrill and legally unconvincing the PRC’s propaganda campaign may seem, it will force the tribunal to take politics into account to an even greater extent than it would have otherwise — so expect some significant concessions to China. As Bill Bishop points out, the CCP has a long tradition of overcoming deficiencies of reason via sheer force of rhetoric (强词夺理). Of course, i could be proved wrong in short order; if so, things may get very interesting for the PRC’s relationship with the UNCLOS.

I’ve also added in the page numbers of the article’s references to the tribunal’s Award on Jurisdiction. Obviously i’m not a lawyer and it’s a case where the fine-grain details are crucial, so i’d especially appreciate any corrections.

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South China Sea arbitration: don’t count on a decisive Philippines win

AIIA Australian Outlook
July 7, 2016

By Andrew Chubb

On 12 July, an international arbitral tribunal will hand down its findings in a landmark case brought by the Philippines against China over the South China Sea issue. The decision will have far-reaching implications, not only for this contentious maritime dispute but also for international law and politics in East Asia.

United States officials have expressed concern that the decision may exacerbate tensions in the region if China responds to an adverse finding with new assertive moves in the disputed area. However, contrary to the expectations of many observers, a total victory for the Philippines is unlikely. At least some key findings will probably favour China due in part to the political interest of the tribunal in protecting the status and relevance of the law of the sea in international politics.

The case has been particularly contentious due to China’s allegation that the Philippines is “abusing” the UN Convention on the Law of the Sea (UNCLOS) processes. China’s subsequent refusal to take part in the proceedings, relentless propaganda campaign aimed at delegitimising the tribunal among domestic and international audiences, and its frenetic efforts to enlist statements of support from foreign governments, have created a backdrop that means the tribunal is unlikely to decide the case on legal merits alone.

Even if the merits of the Philippines’ claims are strong, the arbitrators will be keen to avoid appearing to make a one-sided ruling. Instead, they will seek to make at least some concessions to China in order to neutralise Beijing’s political attacks on the tribunal’s authority, minimise the political fallout, and forestall the possibility of a Chinese withdrawal from UNCLOS. The latter scenario, while highly unlikely, would be a major disaster for the cause of international law, so it is likely to be among their considerations as legal professionals.

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The current state of play

The Philippines has asked the arbitral panel to rule on 15 specific questions concerning the South China Sea with the aim of clarifying the limits of the sea areas that China can legally claim under UNCLOS. The Philippines’ contentions can be summarised as:

  • China’s claims to “historic rights” within the nine-dash line are invalid under the Convention (submissions 1 & 2)
  • Scarborough Shoal is not an island, and therefore generates no entitlement to maritime rights beyond 12 nautical miles (nm), such as an Exclusive Economic Zone (EEZ) or Continental Shelf (submission 3)
  • China’s outposts in the disputed Spratly archipelago are also not islands, and therefore also generate no EEZ or Continental Shelf entitlement (submissions 4, 5, 6 & 7)
  • China has conducted maritime law enforcement and economic exploitation activities in areas where it does not have any lawful claim, thereby violating the Philippines’ lawful rights under the Convention, while also violating the Convention’s safety requirements (submissions 8, 9, 10, 13 & 14)
  • China’s massive island-building projects breach the Convention’s rules on artificial islands, constitute unlawful appropriation of maritime spaces, and violate the Convention’s obligations not to damage the marine environment – as do its fishing, coral and clam harvesting activities at Scarborough Shoal and in the Spratly Islands (submissions 11 & 12)

The Philippines is also asking the tribunal to order China to drop any unlawful claims and desist from any unlawful activities (submission 15).

In response, China argues that these matters are “in essence” issues of territorial sovereignty, which UNCLOS was not intended to govern, and maritime boundary demarcation on which China has invoked its right to reject compulsory dispute resolution. Beijing also argues the Philippines is legally bound by its previous “commitments” to settle its disputes with China through bilateral negotiations.

However, in October 2015, the tribunal issued its preliminary award  and found that it is competent to rule on at least seven of the Philippines’ 15 claims against China. In an official statement, China expressed anger at the ruling, this time accusing both the Philippines and the arbitrators themselves of having “abused the relevant procedures”. Notably, however, it avoided any suggestion that it was rejecting the UNCLOS itself.

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Political considerations

Numerous analysts, including many in Manila both inside and outside government, expect that when the arbitral tribunal hands down its final award, the ruling will find in favour of the Philippines.

But as Phillipines legal academic Jay Batongbacal has noted, the tribunal had a strong incentive to accept jurisdiction over the case because doing otherwise would have been tantamount to an admission that UNCLOS is irrelevant in one of the world’s most important waterways, and one of its most dangerous maritime hotspots.

However, the same considerations make a total victory for the Philippines unlikely. Not only would this outcome draw even more furious political attacks on the tribunal’s authority from China, a decision seen as one-sided would increase the rhetorical bite of Beijing’s international propaganda.

The Award on Jurisdiction issued last October foreshadowed findings favourable to China on some key issues. For example, it noted that if China’s island-building and law enforcement actions are found to be “military in nature” then it may be unable to rule on their legality as these are excluded from the Convention’s dispute resolution procedures (p.140).

Perhaps even more importantly, the Award (pp.62-63) also flagged the possibility of the tribunal providing an implied reading of the nine-dash line’s meaning for China:  development that could effectively legalise the PRC’s infamously unclear and expansive claim.

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What to expect

The case’s greatest significance may lie in providing the first legal precedent defining specific criteria for what constitutes an “island” (entitled to an Exclusive Economic Zone and Continental Shelf under UNCLOS), as opposed to a “rock” (which is only entitled to 12 nautical miles of territorial sea).

Previous international legal rulings have deliberately avoided this question, but the Philippines’ submission has put the issue front and centre. The Award explicitly noted that “the Philippines has in fact presented a dispute concerning the status of every maritime feature claimed by China” in the disputed area (p.72). This suggests the tribunal may make the long-awaited definition. This would also accord with the arbitrators’ imperative to maximise UNCLOS’ relevance in international politics as it would help clarify the status of other disputed maritime rights claims in Asia and beyond, notably Japan’s claim to a 200nm EEZ around Okinotorishima.

It is no certainty that this will happen. It remains possible that the tribunal would simply rule that there may exist one or more islands within 200nm of the relevant areas: a conclusion that would be sufficient to prevent consideration of the Philippines’ claims against China in those areas.

Although the case is too complex to predict specific findings with certainty, the Philippines’ best hopes probably lie in obtaining an explicit rejection of China’s claims to “historic rights” and an affirmation that Scarborough Shoal—but not the much larger Spratly archipelago—is a rock and not an island, meaning the surrounding waters outside 12nm cannot be subject to any legitimate Chinese claim.

US officials worry that the ruling may exacerbate tensions in the region if China responds to an adverse finding with more assertive moves. Reclamation activities at Scarborough Shoal and the declaration of an Air Defense Identification Zone in the South China Sea have been touted as possible responses.

Despite China’s decision to ignore the tribunal’s verdict, it has major stakes in UNCLOS’ ongoing viability. These include deep seabed mining concessions in international waters and its outer continental shelf claim in the East China Sea. UNCLOS is also central to China’s argument that US naval surveillance activities off its coast are illegal.

This leaves Beijing in the awkward position of trying to cast itself as a defender of UNCLOS while ceaselessly attacking an arbitration process constituted directly under its auspices. The continuation or even intensification of China’s political campaign threatens the global authority of UNCLOS as it seeks to divide signatory states into opposing camps. I may be proved wrong on Tuesday but I suspect the SCS tribunal’s arbitrators will be only too aware of this as they prepare their ruling.


“The arbitrators will themselves be judged by history”: domestic aspects of China’s UNCLOS propaganda blitz

People's Daily, June 27, 2016, p.3

People’s Daily, June 27, 2016, p.3

There has rightly been plenty of attention directed towards the PRC’s furious campaign to enlist, or at least appear to enlist, international support for its rejection of the arbitral tribunal that will shortly adjudicate on 15 complaints about China’s actions in the South China Sea. The latest broadside against the tribunal from the People’s Daily is a helpful reminder of some domestic aspects shaping the propaganda blitz.

The wave of propaganda from China’s English-language mouthpieces (and presumably those in other languages too) is certainly not receding, and in fact judging by Xinhua’s Twitter stream it is gathering momentum. 

The weekend just gone brought forth one of the more brazen pieces of propaganda from Xinhua, titled, Turkey agrees China’s stance for resolving disputes via dialogue. Readers who clicked through to the story may or may not have noticed that by “Turkey,” the article was in fact referring to Dogu Perincek, Chairman of the Patriotic Party, which has zero seats in the Turkish parliament, and who just recently got out of jail following one of Erdogan’s crackdowns.

But “Chairman of the Turkish Patriotic Party” sounds quite legitimate and credible, at least when translated into Chinese. Not surprisingly, then, the story was widely publicized in the domestic media under the headline: Turkish Patriotic Party Chairman says China has no duty to obey the South China Sea arbitration ruling.

This points to the importance of domestic considerations shaping China’s campaign to delegitimize the UNCLOS arbitration. As is so often the case, domestic may help explain quite a bit: the curiously un-legalistic tone of China’s critiques of the international legal process, with lots of high-strung rhetoric of brazen betrayals and malicious conspiracies instead; a fixation with getting foreigners to back the PRC’s position (even as the Beijing maintains its resolute opposition to “internationalizing” the issue); and a conga-line of usually obscure domestic organs lining up to say exactly the same thing, from the China Society of the Law of the Sea to the China Fisheries Association.

Besides pursuing the ever-elusive goal of “unified thinking” among party and military, there are good reasons why the CCP would be concerned about shoring up support among the general public in China. In early 2013, before the PRC had gone public with its rejection of the arbitration, about 6 out of 10 urban survey respondents indicated that they thought international arbitration sounded like a reasonable way of handling the South China Sea disputes. The article that appears below in summary translation, from the People’s Daily‘s foreign affairs commentary team “Zhong Sheng,” seems illustrative of how hard the CCP is trying to delegitimize the arbitration among domestic audiences. It appeared on p.3 of the official party mouthpiece, and became a top headline throughout the day on major commercial news portals on June 27.

The article also makes plain the PRC’s heavy stake in the ongoing viability of the UNCLOS system, which has put China is in the awkward position of trying not to undermine the convention while ceaselessly attacking an arbitration process constituted directly under its auspices. This may seem hopelessly contradictory, but in the CCP’s eternally-correct dialectical approach to policy there’s generally a way for the party to have its cake and eat it too. In this case, the correct handling of the contradiction lies in convincing domestic and international audiences that China is in fact defending the authority and integrity of the UNCLOS by rejecting the arbitration. Not only is the Philippines maliciously “abusing” the process, and the US hegemon puppeteering behind the scenes, the arbitrators themselves are reckless and ill-intentioned co-conspirators who will be judged by history.

(Now just repeat ad nausem and — bingo! — another contradiction inevitably resolved…as long as the immutable laws of history haven’t been infiltrated by those same shadowy forces who got to the law of the sea.)

Appearing next to the article in the People’s Daily print version was a piece proclaiming that participants at a conference at Leiden University, co-organized with Wuhan University, had concluded: Philippines’ South China Sea arbitration violates international legal principles. An English version of the latter piece is available here: Int’l experts question proceedings of South China Sea arbitration.

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Zhong Sheng: China’s inevitable choice of determination and capability
中国意志和能力的必然选择(钟声)

2016/06/27

Top headline on Sina, QQ, Baidu, Huanqiu, NetEase news platforms under headline. “Party paper: China completely capable of towing away Philippines ship on Second Thomas Shoal”

“Zhong Sheng” begins by observing that America’s pushing of the militarization of the SCS and words and deeds showing off its weaponry, have deepened China’s concerns about harm to its own interests, and raised China’s resolve to increase its capabilities to defend those interests.

Of course, the islands of the SCS belong to China and no country even said anything to the contrary otherwise until the 1970s. But then,

“tempted by the prospect of resources, the Philippines and other countries, under the excuse that the islands were within 200nm of their shores, attempted to using maritime administrative rights claims to negate China’s sovereignty over the Spratlys. To use a common expression, China’s Spratly islands were looted.”

As to why the PRC allowed this to happen,

it wasn’t because China did not have the ability to stop the illegal occupations, but rather because of China’s extremely restrained response. However, China has bottom lines, and no Chinese government administration has made any compromise on the sovereignty questions. Today, in the southern part of the South China Sea China does not have a single oil well, Chinese fishing boats are often impounded, and fisherfolk often detained. People should ask whether this is the ‘strong bullying the weak’ or the ‘weak bullying the strong.’

Since the 1960s China has settled border disputes with 12 out of 14 land neighbours. This is “the best example of China resolving disputes through bilateral negotiation, of its independent foreign policy, its peripheral diplomacy policy of good-neighbourliness, and its practice and upholding of international law.”

The story of Second Thomas Shoal, according to Zhong Sheng, is evidence of China’s good intentions:

“China is completely capable of towing away the Philippine ship grounded there, but for the sake of the overall situation of stability in the SCS, China has kindly and patiently waited, all along maintaining an extremely restrained attitude.”

The Philippines’ has openly engaged in vile treachery 背信弃义 by requesting arbitration, Zhong Sheng tells readers, for in 2011 Pres Aquino agreed to joint development and promised to resolve disputes through negotiation. But then 18 months later he wantonly filed for arbitration without even telling China beforehand.

UNCLOS article 298 provides for state parties to declare non-acceptance of dispute resolution processes, including arbitration. China did this in 2006 and nearly 30 other countries have done likewise. Thus,

China’s non-acceptance and non-participation, much less recognition, is completely in accordance with international law including UNCLOS. It is proper and legitimate, and is an action that respects international law and safeguards the integrity and authority of the UNCLOS. If the tribunal ignores basic principles of UNCLOS, and basic common sense in international law, forcing a judgement, it will set a dangerous precedent, opening a maritime ‘Pandora’s Box’, for which the arbitrators will themselves be judged by history.”

Finally, America is militarizing the SCS in the name of opposing militarization – it’s America’s ships and aircraft making waves there, and American officials who are “issuing evil words that destroy the peace and stability of the region.”

“America’s advancing of the militarization of the SCS, and its words and deeds that show off its weaponry, have deepened China’s concerns about harm to its own interests, and raised China’s resolve to increase its capabilities to defend those interests.”

China’s capabilities and determination mean that it will not compromise. However, China has no intention of becoming a world superpower, or even a regional boss.

“America absolutely does not need to worry about a strong China challenging its global interests. Ideas about treasuring peace have been handed down through the generations in China, and the gene of peace is deeply planted in the blood of the Chinese people.”


China’s Information Management in the Sino-Vietnamese Confrontation: Caution and Sophistication in the Internet Era

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Jamestown China Brief piece published last week:

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China’s Information Management in the Sino-Vietnamese Confrontation: Caution and Sophistication in the Internet Era

China Brief, Volume 14 Issue 11 (June 4, 2014)

After the worst anti-China violence for 15 years took place in Vietnam this month, it took China’s propaganda authorities nearly two days to work out how the story should be handled publicly. However, this was not a simple information blackout. The 48-hour gap between the start of the riots and their eventual presentation to the country’s mass audiences exemplified some of the Chinese Communist Party’s (CCP) sophisticated techniques for managing information during fast-breaking foreign affairs incidents in the Internet era. Far from seizing on incidents at sea to demonstrate China’s strength to a domestic audience, the official line played down China’s assertive actions in the South China Sea and emphasized Vietnamese efforts to stop the riots, effectively de-coupling the violence from the issue that sparked them. This indicated that, rather than trying to appease popular nationalism, China’s leaders were in fact reluctant to appear aggressive in front of their own people.[1]

By framing the issue in this way, China’s media authorities cultivated a measured “rational patriotism” in support of the country’s territorial claims. In contrast to the 2012 Sino-Japanese confrontation over the Diaoyu Islands, when Beijing appears to have encouraged nationalist outrage to increase its leverage in the dispute,[2] during the recent incident the Party-state was determined to limit popular participation in the issue, thus maximizing its ability to control the escalation of the situation, a cornerstone of the high-level policy of “unifying” the defense of its maritime claims with the maintenance of regional stability (Shijie Zhishi [World Affairs], 2011).

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China-Vietnam clash in the Paracels: history still rhyming in the Internet era?

Vietnamese diplomats are saying Chinese and Vietnamese ships collided today in the disputed Paracel Islands, where China has stationed the massive oil and gas drilling platform HYSY-981. The incident may be in some ways unprecedented as the first time China has attempted to drill for hydrocarbons in a disputed area of the South China Sea. But it also resonates with the past in some surprising ways, from the PRC’s initiation of the incident, to Vietnam’s response, and even the information environment facing the two sides.

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First Luo Yuan, now Liu Yuan: from one “public opinion incident” to another

Liu Yuan

Liu Yuan giving his March 14 interview

...not to be confused with Luo Yuan

Luo Yuan

Over the past few weeks i’ve counted five instances of PLA General Liu Yuan publicly warning against military conflict with Japan over the Diaoyu Islands. If this puzzled the SCMP’s seasoned reporters, who described Liu as “hawkish” in a story quoting him saying, “The friendship between people in China and Japan is everlasting,” it was positively shocking for many of the Chinese internet’s e-nationalists. [1]

Actual serving General Liu Yuan is not to be confused with retired academic “Major-General” Luo Yuan (i’ll continue to put his rank in quotes to distinguish them), who was dumped from the CPPCC this month for being “too outspoken”.

That rationale was a bit ironic given he too has been oddly conciliatory on the Diaoyu issue of late. Not only did “Major-General” Luo categorically refute a Japanese media report that he had called for Tokyo to be bombed, he also seemed to deny he had ever suggested establishing a military presence on Diaoyu. And in one of his earliest Weibos, Luo raised a historical episode that seemed to imply that the US could secretly be trying to fool China into giving it a rationale for military intervention over Diaoyu:

In 1990, as Iraq massed military forces on the Kuwait border, the US ambassador told Saddam, “We do not take a position.” On July 31, US Assistant Secretary of State affirmed that “there is no duty compelling us to use our military”. As a result Iraq invaded Kuwait, under the belief that the US would not intervene, whereupon the US gained a great number of rationales for sending troops. From this we can see, the US wields not only high technology, but also strategic deception.

1990年,伊拉克在科威特边境集结军队时,美大使向萨达姆表示,“不持立场”,7月31日美助理国务卿在众院听证会上肯定“没有义务促使我们使用我们的军队”,结果,伊拉克在确信美不会介入的情况下,入侵科威特,于是,美获得了大量出兵的理由。由此可见,海湾战争,美国不仅玩的是高技术,还玩战略误导

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“Relax wife, the fisheries administration is here!”: triumph, grief and human interest with the fisherfolk of Tanmen

Special total-coverage page in the Zhengzhou Evening News 郑州晚报, May 4, 2012. The headlines read: “We need to watch over this place”/Less than a day after returning, Hainan fishermen return to the “standoff”/”Wife, the fisheries administration is here, so relax!”

This year the PRC media have published a succession of detailed stories on the plight of Chinese fisherfolk through the South China Sea disputes.

On February 22, for example, the Guangzhou-based Yangcheng Evening News 羊城晚报 published ‘More than 95% of licenced Chinese fishermen have withdrawn from the Spratlys, afraid of detention by foreign gunboats‘.

There was no joy in 2011 for Spratly fishing boat captain Chen Songhan 陈松汉 of Taishan in Guangdong Province. He said that harassment from foreign gunboats had led to greatly increasing costs, declining fisheries resources, and decreasing benefits. And on May 9 last year, Beihai (Guangxi) fisherman Li Rixi’s 李日喜 fishing boat was siezed by foreign gunboats, causing economic losses of 1.23 million RMB, and he told the Yangcheng Evening News he was still a long way from recovering his strength.

Following the Chinese fishing boats’ escape from Philippines authorities at the start of the Scarborough Shoal standoff in mid-April, Xinhua put out some rather more rousing stories of triumph. There were numerous interviews with the returnees, apparently all from Tanmen town in Qionghai City, Hainan Province, such as this one, for which a version is available in English here under the headline, ‘Chinese fishermen recall clash with Philippine navy‘.

In early May there emerged the tale of more Qionghainese fishermen who had come home to avoid a typhoon, then turned around the very next day and gone straight back to Scarborough Shoal to “participate in the standoff”. That story contained the rather unforgettable line, as one fisherman’s wife recalled hearing her husband saying:

Relax wife, the fisheries administration is here!

This was splashed across the special total-coverage page in the May 4 edition of the Zhengzhou Evening News seen at the top. According to that story, it was originally taken from the Legal System Evening News 法制晚报.

Mid-May saw the return of Xu Detan 许德潭, the skipper of one of the Scarborough protagonist vessels, Qiong-Qionghai 09099, and who had featured prominently in Xinhua’s stories the previous month. This time he was telling CCTV that he’d just brought back a bumper haul of fish, and that it was all thanks to FLEC and the State Oceanic Administration’s China Maritime Surveillance force. According to the English version (here), Xu said:

Our boats are everywhere around the island, and we are afraid of nothing. The Chinese Marine Surveillance ships kept in contact with us around-the-clock.

Actually, Xu sort-of uttered words to that effect, but he didn’t name either of the agencies. Instead, their names were inserted by a CCTV editor as the subtitles in this frame show:

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“A certain neighbouring country” returns to the South China Sea dispute

14 Vietnamese fishermen detained by China from May 16 to 21 have their first meal following their release

It was as though they were playing tag-team† in a WWF wrestling show. Just as the China-Philippines tensions started to diminish, who should pop up to disturb China’s peaceful claims? Why, “a certain neighbouring country”, of course.

When Philippines President Benigno Aquino III welcomed, and indeed matched, the PRC’s yearly South China Sea fishing ban, Vietnam’s Foreign Ministr labelled it “invalid”.

On May 24 the Vietnamese held another press conference at which spokesman Luong Thanh Nghi said that China had detained two Vietnamese fishing boats in the Paracel Islands on May 16 (for some reason this VietnamNet report says the incident occurred in the Spratlys), and held the 14 crew until May 21. As soon as China officially advised Vietnam about the incident on May 21, according to spokesman Luong, the Vietnamese side lodged a strong diplomatic protest against the “severe violation of the sovereignty, sovereign rights and jurisdictions of Viet Nam”.

There are plenty of details in this English-language Vietnamese media report

Vo Minh Quan, 42, the captain of QNg 50003TS boat, said the fishermen went to sea on May 2. Fourteen days later, at 9 am on May 16, a Chinese ship coded 306 suddenly appeared and seized the boat and the crew.

The foreign ship later captured the QNg 55003TS boat piloted by captain Tran The Anh and then escorted the two boats with all their crewmembers to Phu Lam [永兴, Woody] island for detention.

The Chinese authorities confiscated all fishing tools, maritime equipment, 2,000 liters of oil, five diving cylinders, and a large amount of sea products.

Total value of the seized items of both fishing boats is estimated at VND900 million (US$43,200). Quan said.

At 12 am on May 21, the Chinese captors released all fishermen and the QNg 50003TS but kept the other boat in detention.

….but i have failed to find anything at all in the Chinese media about the incident.

Just two days later, precisely the opposite was the case. The May 19 edition of the Huanqiu Shibao ran an exclusive story headlined ‘Three foreign gunboats pursue and harass Chinese fishing boats, rescued by Yuzheng 310‘, which doesn’t appear to have been reported in the international media. It’s dramatic enough (and strange enough) to translate in full:

From Huanqiu Shibao‘s specially-dispatched journalist in the South China Sea: On May 18, China’s Yuzheng 310 vessel successfully deterred three gunboats from a certain country from pursuing and harassing 追袭 five Chinese fishing boats, protecting more than 100 Chinese fisherfolk from financial loss and personal harm.

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