On July 12, as expected, the UN Permanent Court of Arbitration ruled to uphold the Philippines’ maritime rights in the South China Sea and dashed (no pun intended) – as having no legal basis – China’s “nine-dash-line” sovereignty claim over nearly all of the sea.
And as also expected, China rejected the ruling. President Xi Jinping has reasserted “historic rights” to the resources of the SCS, without rebutting the arbitral tribunal’s two bases for nullifying his government’s claim. The tribunal said:
1) China’s historic rights claim were “extinguished” in 1996 to the extent that they were incompatible with the exclusive economic zones provided under the UNCLOS, many of which were encompassed within the nine-dash line. (China has signed and ratified the UNCLOS along with the Philippines and 65 other nations}; and
2) Although navigators and fishermen from China (and from other states) had used the islands in the SCS, there was no evidence that China had historically exercised exclusive control over the waters, or prevented other states from exploiting their resources. Its past navigation and fishing in the SCS represented the exercise of high-seas freedom, rather than of a historic right.
A lot remains to unfold and to be done, particularly in the context of Chinese and US moves.
In asserting the primacy of its “historic rights” against the court’s findings, China now tries to impugn the integrity of the court’s five judges, who voted unanimously on the Philippine-initiated case. All experts on the law of the sea, they are from Ghana, France, Germany, Poland, and the Netherlands. The Ghanaian judge, Thomas A. Mensah, is considered “one of the world’s foremost experts” on the UNCLOS, according to a report of the International New York Times.
Still, China’s deputy foreign minister, Liu Zhenmin, called them “biased and anti-Asian.” He further claimed that four members of the court were appointed by Shunji Yanai of Japan, president of the International Tribunal on the Law of the Sea (ITLOS) in 2013, when the Philippines initiated the case there. The ITLOS had referred the case to the arbitral court for hearing and ruling. Liu alleged that Yanai, who he said was an ally of Japan’s Prime Minister Shinzo Abe, “totally rigged” the arbitral court.
Per the INYT report, Yanai did appoint the four members upon request by the Philippines, which appointed the judge from Germany. Normally each side of the dispute appoints two judges, while the ITLOS names the fifth (the panel head, as tie-breaker in case of a vote deadlock). Because China refused to participate in the proceedings and wouldn’t appoint two judges, the Philippines asked Yanai to appoint the rest of the panel.
Liu also assailed the five judges because the fees for their services had been paid by the Philippines. However the court explained, on its website, that when China declined to pay its share of the cost for the case the Philippines paid its share and China’s too. It’s normal practice, in commercial and international arbitration cases, for the two sides to pay for the arbitrators’ fees.
Paul S. Reichler, the Philippines’ chief counsel in the case, rebuffed Liu. The court’s bills to the parties had to be paid, he explained, and the Philippines paid to the court, not to the judges. Citing the judges as the “most honorable and distinguished” in the world, he denounced Liu’s insinuations against them as “vicious and mendacious.”
But it’s not only China that is protesting too much. In its own way and for its own reasons, the United States has been talking a lot too.
A Reuters report says that the US is using quiet diplomacy to “persuade the Philippines, Indonesia, Vietnam, and other Asian nations not to move aggressively to capitalize” on the July 12 ruling. It quotes unidentified “several US administration officials” who deigned to say:
“What we want is to quiet things down so these issues can be addressed rationally instead of emotionally. This is a blanket call for quiet, not some attempt to rally the region against China which would play into a false narrative the US is leading a coalition to contain China.” Huh?
Reacting to criticism that his government has no moral authority to speak on the issue since it’s not a signatory to the UNCLOS, here’s US State Department spokesman John Kirby:
“This isn’t about the (US) projecting moral authority. This is an international tribunal which came up with a legally binding decision that the (US) didn’t influence.” Question: in how many instances has the United States influenced decisions of international bodies, starting with the UN Security Council, affecting conflicts that escalated into wars?
On the issue of the US contribution in intensifying militarization and increasing tensions in the South China Sea, Kirby argued that American military operations in the region are meant to protect US national interests, including those of “five of seven treaty alliances.” He stressed:
“We have enormous responsibilities. We have been and remain and will remain a Pacific power. The (US) military has a presence in the Pacific. We are a Pacific power. Five of our seven treaty alliances are in the Pacific. We have enormous security commitments in the region.”
The US, he said, had been protecting and defending American interests in the region long before the SCS issue came up. He concluded: “And I don’t see any change to that presence. In fact, it’s all part of the President’s (Obama’s) rebalance to the Asia Pacific, where you have a majority of the US Navy out there as well as many assets from the other services.”
What he didn’t say is that America’s “rebalance” is a reaction to China’s rapid rise as an economic and military power in the region.
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Published in the Philippine Star
July 16, 2016