Wed, Mar 29, 2017 | updated 05:00 AM IST

Chinese fury continues against South China Sea judgement

Updated: Jul 19, 2016 09:05 IST

Hong Kong, July 19 (ANI): China continues to resolutely oppose the Permanent Court of Arbitration's (PCA) landmark decision handed down on July 12 against its maritime claims in the South China Sea. Indeed, Beijing has redoubled its months-long campaign to invalidate the 2013 case that The Philippines brought against it.

The PCA gave a comprehensive verdict in Manila's favour. In its 501-page report the tribunal found Beijing violated no fewer than 14 United Nations Convention on the Law of the Sea (UNCLOS) provisions, six international regulations preventing collisions at sea and one general rule of international law. China's recalcitrance was highly visible during the Public International Law Colloquium on Maritime Disputes Settlement held in Hong Kong on July 15 and 16, jointly organised by the Chinese Society of International Law (CSIL). Given that the CSIL on July 10 - even before the PCA issued its verdict - issued a statement calling the tribunal "null and void", calls into serious question the colloquium's bias from the outset.

Donald Rothwell, Professor of International Law at the Australian National University, spoke to ANI on the sidelines of the colloquium. "It's important to appreciate the way the case developed. The tribunal was hamstrung because one side only appeared," he admitted. He added that China has "some strong arguments on jurisdiction". Tung Chee-hwa, best known as a shipping magnate and Hong Kong's first chief executive - rather than as a legal expert or historian - delivered the colloquium's keynote address. He argued, "The 12 July decision, I think, is not only not right, but it complicates the situation." He noted, "China's historical relationship with the Spratlys underpin its claims to sovereignty." However, the PCA explicitly denied any such Chinese "historic rights". It said, ".China's claims to historic rights, or other sovereign rights or jurisdiction, with respect to the maritime areas of the South China Sea encompassed by the relevant part of the 'nine-dash line' are contrary to the Convention and without lawful effect to the extent that they exceed the geographic and substantive limits of China's maritime entitlements under the Convention." The fury of Chinese citizens is understandable, for it is drummed into children from a young age that Chinese territory extends as far south as James Shoal (which is administered by Malaysia, incidentally). However, Bill Hayton of Chatham House argued, "If we could trust the Chinese leadership to allow the free flow of information and an open debate about history, we could hope for a new understanding to emerge. For the time being, that is about as likely as China dismantling its giant artificial islands." Despite Tung's assertion that "the Chinese discovered the Spratlys" and "exercised sovereignty over the Spratlys from the Yuan dynasty", there is no legal basis for China's historic claims, especially those encapsulated by its 'nine-dash line'. No matter how strenuously China argues, simply repeating it often enough does not make it true.

Tung further falsely claimed, "I hope.you can appreciate that China's activities in the South China Sea have not been aggressive or assertive, but rather have been restrained. Furthermore, it has indeed adhered to international legal norms." Again, this argument was destroyed by the PCA report's listing of dangerous actions by Chinese law enforcement vessels. China consistently stated it would not participate in PCA proceedings, nor accept or abide by any decision.

China was within its rights to refuse participation, but this does not excuse it, as a voluntary UNCLOS signatory, from being legally bound by the findings. Some see China's refusal to participate as indicative of low confidence in its legal capacities on the international stage.

Certainly, if it had participated, perhaps more would have gone its way. Instead, Beijing chose to launch an acerbic worldwide publicity campaign attacking the validity and impartiality of the PCA. Beijing even pursued a novel form of extrajudicial "non-participation" whereby it individually lobbied judges and used the Chinese ambassador to the Netherlands to make submissions to the PCA.

Chinese reaction to the tribunal's ruling was predictably defiant. On its Weibo account, for example, The People's Daily carried the slogan: "Don't accept, don't participate, don't recognise, don't carry out." Among its campaign to discredit the tribunal are allegations of backhanded US and Japanese bias. For example, aspersions cast by China's vice foreign minister Liu Zhenmin that the Philippines bought off the judges were alarming. "These judges are paid, so who's really behind this tribunal? Who was paying them? Was it the Philippines or some other country?" he asked. When China refused to pay half the costs of the tribunal, the Philippines stepped in and paid full costs so the tribunal could continue.

Rothwell said the tribunal's "legitimacy cannot be undermined" for this reason, however. Whilst fanning nationalism flames, China side-lined realist and moderate voices within the country, and all officials were required to toe the party line. Chinese hardliners are now taking the verdict as evidence of a US and international vendetta against China, an extension of its 'century of humiliation'. Philip Bowring, a Hong Kong commentator, wrote scathingly in the South China Morning Post, "Sometimes humiliation is deserved, as in the case of the arbitration ruling showing the nation as a bully and an environmental despoiler of the very sea which it claims by inventing history and drawing lines on maps." The Chinese government released a statement asserting "China has territorial sovereignty and maritime rights and interests in the South China Sea" that are "consistent with relevant international law and practice". China refuses to give up one inch of "territorial sovereignty", even though sovereignty was not addressed in the PCA ruling. Instead, the tribunal carefully listed what maritime rights the newly classified Spratly rocks (not islands!) provided. Beijing was angered by its lack of maritime rights (merely 12 nautical mile territorial seas) though, interestingly, some assess that it may be backing away slightly from its vague 'nine-dash line' claim. The USA has refrained from inflammatory actions so far. It said in a statement, "As provided in the convention, the tribunal's decision is final and legally binding on both China and the Philippines.

The United States expresses its hope and expectation that both parties will comply with their obligations." Tung mentioned the USA in his colloquium speech too, "Additionally, they [the Chinese] cannot understand why America goes so far as to frequently carry out military exercises in the South China Sea...This helps to consolidate suspicions of many Chinese people that America's pivot to Asia is to contain China. If this suspicion persists, many of us are afraid that the positive sentiments of the Chinese people towards America will be affected." However, Tung muddies the waters. The occurrence of US freedom of navigation operations, or indeed military exercises, is not central to the South China Sea issue, for China opposes foreign naval activities anywhere in its exclusive economic zone (EEZ).

China is extremely sensitive right now, already lashing out at the USA, Japan and Australia to stay out of the dispute. Vice Foreign Minister Liu threatened that China reserves the right to establish an air defense identification zone (ADIZ) over the South China Sea, just as it controversially did over the East China Sea in November 2013. This would be an inflammatory escalation, as well as legally baseless given that it has minimal territorial rights in the South China Sea. General Herbert Carlisle, head of the US Air Combat Command, said the USA would ignore any such action. "If they declared [an] ADIZ then we would continue, over international airspace, to conduct operations that we feel are within the bounds of legality like we do now." Meanwhile, Admiral Scott Swift, commander of the US Pacific Fleet, also commented, "I don't really see any changes in what the Pacific Fleet is doing." It currently averages some 700 ship days a year of operations in the South China Sea, and he could not conceive of any reduction in this.

With China rebutting the PCA decision, it is inconceivable Beijing will desist from its claims. Rothwell said the ability to actively enforce the tribunal's verdict is compromised as there is no "international police force" to back it up. "It's quite a benign award," he said. "There's no cease and desist, no damages." Sebastien Colin, a researcher at the Hong Kong-based French Centre for Research on Contemporary China, told ANI: "The post-arbitration geopolitical situation in the South China Sea will depend mostly on how states, not only China and the Philippines, but also Vietnam, Taiwan and the USA, manage the award." He warned that China could build new facilities, and greater militarization could occur of the features it already occupies, including multiplied military drills. "Such a development would be likely (and this would be perhaps the major impact), amplifying strategic rivalry between China and the USA amid legal disagreement on the application of certain provisions of UNCLOS." We may expect continuing Chinese pronouncements, through every avenue open to it, that the PCA decision remains invalid, as well as military demonstrations such as fly-bys and sail-bys of PLA assets.

The former has already occurred with an H-6K bomber photographed over Scarborough Shoal. One area to watch is activities by Chinese maritime militia, essentially fishing fleets in military service to the nation, against foreign fishing fleets and even naval vessels of powers like the USA. Colin continued, "The affirmation of the Chinese presence in the South China Sea in the last three years is not only a response to the legal initiative of the Philippines but also, above all, a reaction to US policy in Asia and the renegotiation by Washington and Manila of the security agreement facilitating the access of Philippine naval bases to the US Navy." It is not all doom and gloom, however. Colin added, "Beyond this rivalry and some knee-jerk reactions that could be taken by China - and Taiwan - there is nevertheless room for easing tensions. The key is without doubt very largely in the hands of the new Philippine administration led by Rodrigo Duterte, who has the dual mission of managing the heritage of the outcome of an arbitration procedure launched by his predecessor while redefining a policy vis-a-vis China." Duterte is not known for tactful diplomacy, so how will he handle this? Duterte has so far vacillated from promising to bravely ride a jet ski to Scarborough Shoal to defend Philippine sovereignty, to acquiescently promoting joint development of resources. In the wake of the PCA decision, gloating is absolutely the wrong Philippine approach, as is knuckling to Chinese diplomatic pressure. Philippine Solicitor General Jose Calida said "the baseline for any negotiation should be the decision," adding that "we will not concede any awards given to us". Careful to paint Duterte in a more positive light than his predecessor Benigno Aquino, Beijing asserted, "China stands ready to continue to resolve the relevant disputes peacefully through negotiation and consultation with the states directly concerned on the basis of respecting historical facts and in accordance with international law." Yet, simultaneously, China is refusing to negotiate on the basis of the PCA ruling.

Liu said on 13 July, "China will not allow any negotiation based on the ruling." He added, "China expects the new Filipino government to cooperate and recognize that the ruling is nothing more than a piece of waste paper and cannot be enforced. China hopes that the Filipino side will set aside the award and return to the negotiation table." Clearly the two countries need to engage in diplomatic talks, but Rothwell said a lot will depend on how innovative both sides are willing to be in their negotiations. Given China's blinkered negotiating approach above, the process will not be easy. Rothwell agreed that "the Philippines now has the high moral ground and the backing of much of the international community, I suspect". Rothwell said China's current reaction is to be expected and that it will take at least a year to measure its true response. Although the ruling has now been delivered, he likened it to "playing a long game". (ANI)

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