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.

~

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.


Propaganda as Policy? Explaining the PLA’s “Hawkish Faction” (Part Two)

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Here is Part 2 on the PLA hawkish faction from China Brief, with added links to sources, and a couple of graphs from the utterly awesome Baidu Index (big hat tip to Kaiser Kuo). 

I’d also like to add my thanks to Xuan Cheng, John Garnaut, James Barker, Mark Stokes and Taylor Fravel for discussions and tips on this topic. They don’t necessarily agree with the content of the article.

~

Propaganda as Policy? Explaining the PLA’s “Hawkish Faction” (Part Two)

Publication: China Brief Volume: 13 Issue: 16

August 9, 2013

By: Andrew Chubb

Rise of the hawks: searches for "China hawkish faction" by logged-in Baidu users since 2008. I'm requesting further info from Baidu regarding the extremely low pre-2010 numbers. One point that can be made with confidence is that user interest in the "Chinese hawkish faction" peaked during the Scarborough Shoal and (especially) Diaoyu Islands crises.

Rise of the hawks: searches for “China hawkish faction” by logged-in Baidu users since 2008. I’m requesting further info from Baidu regarding the extremely low pre-2010 numbers. One point that can be made with confidence is that user interest in the “Chinese hawkish faction” peaked during the Scarborough Shoal and (especially) Diaoyu Islands crises.

If outspoken Chinese military officers are, as Part One suggested, neither irrelevant loudmouths, nor factional warriors, nor yet the voice of the People’s Liberation Army (PLA) on foreign policy, and are instead experts in the PLA-CCP propaganda system, then what might explain the bad publicity they often generate for China? This article explores how the activities of China’s military hawks may contribute to the regime’s domestic and international goals. On a general level, the very appearance of a hawkish faction—the “opera” that Luo Yuan has described—serves the domestic purposes of promoting national unity (Global Times, May 4). By amplifying threat awareness and countering perceived Western plots to permeate the psyche of the Chinese populace and army, the “hawks” direct public dissatisfaction with the policy status quo away from the system as a whole. 

In specific crises, such as the standoff at Scarborough Shoal last year or in the wake of the Diaoyu Islands purchase, hard-line remarks from uniformed commentators serve to rally domestic public opinion behind the prospect of military action, instil confidence in the PLA’s willingness to fight over the issue and deter China’s adversary. By amplifying the possibility of otherwise irrational Chinese military action and inevitable escalation should Beijing’s actions be interfered with, they have contributed to a thus-far successful effort to convince the Philippines and Japan to accept the new status quo around Scarborough Shoal and the Diaoyu Islands.

Read the rest of this entry »


“The headline speaks to the Chinese people’s heart!”: Zhong Sheng on Diaoyu patrols, gets a Phoenix twist

‘China needs to stand its ground like this’ by “Zhong Sheng”, Renmin Ribao, October 8, 2012, p.3. Phoenix and Sina changed the headline to ‘People’s Daily: if the territory cannot even be protected, what significance does China’s rapid development have?’, misrepresenting the article as an attack on the policy status quo.

Monday’s “Zhong Sheng” article in the Renmin Ribao set out to tell the world that the People’s Republic’s fisheries and surveillance ships are going to continue their patrols around the Diaoyu Islands.

The basic point was simple (official English translation):

Not only will the ship fleet of the Chinese Fishery Administration continue to stand its ground, but the Chinese Marine Surveillance ships will also stand their ground.

Beginning October 1, Chinese government boats have entered the 12nm territorial zone twice (on October 2 and 3) and patrolled in the 12nm “contiguous zone” every day since then. Zhong Sheng offered an explanation of sorts for the timing:

China needs to stand its ground in this manner. Otherwise, China’s territorial sovereignty and legitimate right and interest could never be truly maintained, and Chinese people wouldn’t be able to celebrate the festive season securely and happily.

So the patrols recorded each day from October 1 to 7 were probably aimed in part at giving China’s holidaying families a sense that their government taking the requisite action to protect the homeland during National Day Golden Week. The Japanese media were of course crucial to the effectiveness of this.(†)

“Zhong Sheng” repeatedly claimed that the patrols were regularized and would not go away, but in so doing, effectively admitted that China had changed the status quo on the waters out there: “Japan is not accustomed to this . . . Japan must learn to adapt to these regular actions of China.” In fact, the writer(s) even went one step further in this direction, nominating the specific date for one significant change in PRC policy:

The Chinese Fishery Administration has normalized the fishery-protection patrol in the waters near the Diaoyu Islands and its subsidiary islands since as early as 2010.

Read the rest of this entry »


Professor Chen Jie explains the Spratly triangle

–Note: apologies to email subscribers for the incomplete draft sent out just now. I didn’t realise the Iphone app could interpret an errant finger swipe as an instruction to “publish now”. I will hopefully finish it off today after i’ve spoken to some more friends.–

In the dispute over the Spratly Islands, a China-Vietnam-Philippines triangle of active claimants has taken shape, with external great powers the US, India, Russia and perhaps even Japan lurking, anxious about possible trouble and eager to seize any strategic opportunity. The interview translated here, recorded in November 2011 following several months of intense diplomatic maneuverings, offers an excellent recap of how we arrived at the more direct competition of 2012, as well as touching on the issues raised in the previous post.

The three sections, indicated by the host’s questions in bold, canvass:

  1. Vietnam’s diplomatic triple-dealings with China, India and the Philippines in October 2011;
  2. The connections between great-power politics and Vietnamese ruling-party politics; and
  3. The difference between the Philippines’ and Vietnam’s approaches.

The interview was broadcast by the multilingual Australian SBS Radio with with Jie Chen 陈杰, Professor of International Relations at the University of Western Australia. Professor Chen is an expert on Southeast Asian and Chinese foreign policy who is supervising my PhD project.

Read the rest of this entry »


“Comfortable with their mistresses, the leaders haven’t gotten out of bed”: perplexing Chinese media coverage of the Scarborough standoff

Yuzheng-310 – the PRC Fisheries Law Enforcement Command ship at the centre of a wave of domestic criticism of the Chinese government

It’s one of the great puzzles of Chinese foreign policy in the 21st century, and particularly when it comes to the PRC’s behaviour in the South China Sea: which of China’s actions are co-ordinated, intentional, directed by the central leadership – and which are the result of individual agencies, political factions, and other actors in competition for resources or policy supremacy?

The International Crisis Group released a report on Monday this week emphasising the former, the “lack of coordination among Chinese government agencies” leading to an incoherent policy on the South China Sea. The same day, James Holmes and Toshi Yoshihara of the US Naval War College published a piece that argued China’s “small-stick diplomacy” strategy in the dispute – principally the use of civilian maritime law enforcement agencies – is likely to succeed.

One of the problems is there are very limited ways of working out what’s actually going on, and one of the principal windows we do have is the Chinese mass media, including online media like news portals, the content of which we know to be shaped by the directives of the State Council Information Office and Ministry(s) of Propaganda. However, the Chinese mass media also operate to a large degree on commercial premises, so it’s a constant challenge to work out whether their coverage is best explained by sensationalism or political direction.

Watching the PRC’s media coverage of the Scarborough Shoal standoff over the past couple of weeks has been nothing short of bewildering. In one particularly strange example this week, the China Youth Daily, online news portals, and decision-makers combined to create a veritable firestorm of outrage against the government – all based on what appear to be false reporting.

Read the rest of this entry »


Scarborough Shoal – a Chinese photo tour

Readers (if there are any) may be wondering exactly what and where the mysterious Scarborough Shoal, where law enforcement ships from China and the Philippines remain engaged in a standoff, actually is. Here’s an annotated gallery of photos from Sohu, giving the Chinese perspective. It’s called “The dispute between China and the Philippines over Zhongsha Huangyan Island”.

Note: The Chinese term for Scarborough Shoal (or Scarborough Reef) is 黄岩岛, meaning Huangyan Island. As you will see, it’s really not an island at all, but i’m making the translation on its own terms.

Here we go:

Huangyan Island Overview

1. Huangyan Island (Scarborough Shoal) is the only one of the Zhongsha group of islands (Zhongsha Qundao) that protrudes above the waterline. It is surrounded by a ring-shaped reef with water depth between 0.5 and 3 metres. The atoll is the shape of a right triangle, and encloses lagoon of 130 square kilometres with water depth of 10 to 20 metres. In the southeastern corner there is a 400-metre-wide channel that links the lagoon with the outside ocean, through which medium-sized fishing boats and small naval vessels can enter. It is an extremely good fishing area and a shelter during storms.

2. In terms of geographical position Huangyan Island is about 800 kilometres from Hong Kong, and about 350 kilometres from the Philippine capital Manila. Like the Spratly Islands, the area around Huangyan is an important shipping lane, at the throat of the main thoroughfare into and out of Subic Bay (Philippines). In addition, the area is super-rich in marine resources, producing plenty of economically valuable species of fish.

3. Scattered pieces of reef appear above the waterline around the Huangyan Island atoll, each piece with a surface area of approximately 1 to 5 square metres.

4. This is the biggest of Huangyan Island’s rocks, R2. According to the relevant rules of the International Convention on the Law of the Sea, islands are naturally formed land areas that are above the waterline at high tide. Confirmed islands can be used to draw baselines for territorial waters, exclusive economic zones and continental shelf areas.

Read the rest of this entry »


“We don’t need surveillance vessels, we need the navy”: the Standoff at Scarborough Shoal

Just as analysts pronounce all is quiet on the South China Sea front, along comes this spanner in the works — easily the most serious incident since the height of the tensions last year:

The Philippines’ largest warship was engaged in a tense standoff with Chinese surveillance vessels Wednesday at a disputed South China Sea shoal, after the ship attempted to arrest Chinese fishermen but was blocked by the surveillance craft.

The “warship” in question is the BRP Gregorio del Pilar, the former US coastguard cutter transferred to the Philippines Navy last year and commissioned in December. That the Philippines is already making “good” use of it does not bode well for the future. But back to the incident:

The current standoff began Sunday when a Philippine navy surveillance plane sighted eight Chinese fishing vessels anchored in a lagoon at Scarborough, the Philippine Department of Foreign Affairs said [. . .]

On Tuesday, Filipino sailors from the warship boarded the Chinese vessels for an inspection, discovering large amounts of illegally collected coral, giant clams and live sharks inside the first boat, the department said in a statement.

Two Chinese maritime surveillance ships, identified as Zhonggou Haijian 75 and Zhonggou Haijian 84, later approached and positioned themselves between the Philippine warship and the Chinese fishing vessels “thus preventing the arrests of the erring Chinese fishermen,” the statement said.

Philippine Foreign Affairs spokesman Raul Hernandez said Wednesday that the situation at the shoal “has not changed as of this morning. There’s a standoff.”

The big 5 Chinese news portals all have the story on their front page, though there is some variation in prominence. NetEase has it in the prime “cover photo” position (the photo above), accompanied by the caption: “Philippines Navy arrests Chinese fishermen at gunpoint at Scarborough Island”, which links to a gallery of photos related to the incident. Phoenix is keeping it among the big headlines at the top, and the other three have let it slip down into the top layer of small headlines.

As far as i can see from my cursory readings, the news that the Philippines has ruled out the use of force and agreed to resolve the situation diplomatically has not been widely reported yet in China.

The top few comments from the 35,000-strong thread attached to NetEase’s photo gallery:

We don’t need surveillance vessels, we need navy vessels (administrator, won’t you please have just enough conscience to display my comment?) [8,495 recommends]

Using maritime surveillance vessels for coastal defence, China really is unique. [5205]

Who does Scarborough Shoal really belong to? Since it’s ours, why are we being so restrained? [3698]

[. . .]

After I read this I was angry at first, but then I thought: if it’s this hard for me to find a place to rest my body, if I’ll work for a lifetime and still not afford a snail’s home to keep the wind and rain out, every day suffering high prices yet not being able to eat anything safely, stress levels that make me think about suicide every day, can’t afford to see a doctor, can’t afford a house, don’t dare consume,,,,,,,,,,,,,,fearing that what money I can save won’t feed a family…. What do I care who owns the South China Sea, whether Little Japan gets given the Diaoyu Islands? [1231]

In the world outside China, the use of China Maritime Surveillance, rather than the PLA Navy, is seen as a key part of China’s strategy in the South Sea: making sure they’re civilian law enforcement agencies rather than the Navy demonstrates that China already exercises jurisdiction, where it actually doesn’t. The top comments reflect a lack of appreciation for, or more likely a lack of awareness of, that strategy.

Also interesting to see a strong expression of apathy getting a gig among the top comments. It is my hypothesis that when I do my offline polling later this year, I will find this to be the mainstream majority Chinese view of the South China Sea disputes.

Censorship appears to be minimal on this topic, too, and it’s probably not as a result of the military’s much-vaunted “rising” engagement with public debate, judging by this top comment over on Phoenix‘s discussion thread:

Why isn’t the PLA Navy protecting our territory? [8812]

…or this, sitting in 5th position on this separate 73,000-strong (and rapidly growing, even at 2.45am) NetEase thread:

Our warships are all fake, all that [military] expenditure’s gone to Moutai. [4119]

It should be noted that this has been an utterly extraordinary day in Chinese domestic politics, with Bo Xilai, until recently the high-profile Party Secretary of Chongqing, officially suspended from the Politburo and placed in the hands of judicial authorities pending an investigation for “serious breaches of discipline”, and his wife, Gu Kailai officially named as the prime suspect in a murder case. In fact, a Chinese friend has suggested that it might be a very bad time for the Philippines to try to play hardball, since the Party might want to divert attention from the domestic scandal by making a move in the South China Sea. However, the Party appears to be mobilising all its media resources towards publicising the Bo Xilai scandal, which would suggest just the opposite – the domestic pressure on the CCP government to use force against the Philippines will be lessened due to people’s attention being primarily focused on Bo Xilai’s disgrace.

One could even imagine a rather hilarious inversion of the all-too-often-invoked (in relation to China at least) theory of diversionary military adventurism, in which ordering the news to be dominated by the Bo Xilai scandal was a tactical decision by the government aimed at diverting people’s attention away from the South Sea standoff. That is not the case of course, because the CCP is not suppressing coverage of the standoff, but i think it illustrates the point that there’s no evidence to my knowledge of the CCP state ever having used that tactic.


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