The South China Sea Arbitral Tribunal Hoax

On the ten year anniversary of the arbitral ruling on the South China Sea, CGTN recently released a compelling investigative report showing how the Philippines (acting as a US proxy) fraudulently borrowed the mantle/authority of the International Court of Justice (ICJ) to give an aura of legitimacy to an illegal arbitration against China. The report even shows how they occupied–against tradition and necessity–the actual chambers of the ICJ in order to generate visuals to bolster their pretended legitimacy. The entire process was an elaborately concocted PR stunt–a fifty million dollar PR hoax. However, many people still think the hoax is a real ruling that undermines China’s claims to sovereignty in the South China Sea. 

The main points are important to re-highlight.  

The PCA (the Permanent Court of Arbitration) did not have the right to arbitrate on the South China Sea claims under UNCLOS because China had declined arbitration on the issue, which was their right to do under article 298. Over thirty countries on joining the UNCLOS declined mandatory arbitration under the same clause. The case should have never been allowed to proceed.

However, having accepted a process that should never have been allowed to proceed, the Tribunal attempted, ultra vires (outside of its power/mandate/jurisdiction) to decide on a matter that it–or UNCLOS–had no authority to rule on: the territorial claims of sovereignty of the South China Sea. It attempted to do this by rendering technical decisions on delimitation of various features.

Corrine, a sharp geopolitical blogger makes the key legal points: the ruling was ultra vires (outside of its powers to adjudicate), and therefore null and void. She also gives important geopolitical and historical context. 

I have previously made similar arguments, in particular why the US, through its proxy, the Philippines, initiated this political arbitration. To summarize: 

Geography & History

The South China Sea, bordered by China, Taiwan, Philippines, Malaysia, Brunei is a vital geostrategic thoroughfare, sometimes compared to the Persian Gulf. 5.3 trillion dollars’ worth of goods flow through the South China Sea annually. 10 million barrels of oil, most of it destined for China, flow through it daily, and it is considered a resource rich area for oil and gas exploration, fishing, and mineral extraction. 

It’s also highly contested, in particular, the glittering multitude of small islands and shoals—250 in all–littering the inland sea: the Paracels, the Spratlys, the Pratas, Macclesfield and Scarborough Shoals. All six countries claim different portions and different islands in the area. Their claims bisect, trisect, quadrisect each other. To bolster their claims, all of the claimants have built up structures, installations, and done reclamation work on the islands. All but Brunei have built airstrips.

The key issue is territorial sovereignty–who owns the islands: the Paracels, the Spratlys, the Scarborough shoals, and other sundry reefs, shoals, islands–and by inference, the maritime territorial rights accruing to them:

The Chinese claim these islands back to the 2nd Century BC, to the Han Dynasty. They claim continuous usage, fishing, habitation, travel, mapping of the Islands, intensifying from the Ming Dynasty onward, and produce historical arguments and documents to that effect.

Other countries make other various historical claims: the Vietnamese claim usage from the 17C onward, as well as claiming inheritance from the French colonial period, when the French occupied the islands.

The Philippines claim that the lands were “terra nullius“–uninhabited land–and therefore belong to them, as they fall within their maritime Exclusive Economic Zone of 200 nautical miles. They also claim that Tomas Cloma, a Filipino businessman and adventurer, discovered, and then claimed for himself these uninhabited islands in 1956, before ceding them to the Filipino Government for a single dollar.

These various claims would have been resolved, obviated, or prevented after the Japanese, who took over the entire region, ceded its war territories back to the original owners after surrender as intended in the 1951 San Francisco treaty, and the Cairo and Potsdam declarations. Most likely, a large part of the territory would have gone to the Chinese (the Republic of China) with their historical claims. At the very least, an orderly process of clarification would have been initiated.

The Americans, in their cold war zealotry, however, excluded the Chinese—now newly turned Communist–from the treaty, leaving the mix-up and contestation to grow and expand, like the boundary disputes over Kashmir and elsewhere. The Chinese, at the time, busy with national reconstruction, the Korean war, and weakened with internal strife, protest their exclusion, but otherwise leave the matter alone for decades.

The Red Queen pivots to Asia

All this would still be moot, minor border and island disputes—of which there are hundreds across the globe—nothing rising to the level of military standoff, were it not for the Pacific Pivot. Planned since the turn of the century, and officially declared by Hillary Clinton 2011, the Pivot is the US master plan to contain, stymie, and suppress China’s growth in the region.

Cloaked in dog whistle language, but clear in its intention, it involves moving 60% of all US military materiel and resources into the Asia Pacific area, encircling China with bases, missile systems, and naval forces; pressuring countries in the region into bilateral and multinational military agreements aligned with the US (or undermining them if they refuse); all the while goading China into an arms race, territorial battles, and ultimately war.

To this end, a prefabricated doctrine of war, planned in 2009 and concretized in 2010, called AirSea Battle/JAM-GC and tailored specifically for the South China Sea, is on the shelf, waiting to be operationalized. It has already been rehearsed with US allies through military drills and war games. It derives from the AirLand Battle, the US/NATO doctrine of war against the USSR, itself derived from Israel blitzkrieg tactics of the Yom Kippur War. It is colloquially known as “Shock and Awe”. 

Underlying this is the conceit that the US should remain the unipolar global hegemon—and use all means—including pre-emptive war to maintain its position. In the immortal words of necon Paul Wolfowitz:

Our first objective is to prevent the re-emergence of a new rival… that poses a threat on the order of that posed formerly by the Soviet Union. This..requires that we endeavor to prevent any hostile power from dominating a region whose resources would, under consolidated control, be sufficient to generate global power…We must maintain the mechanism for deterring potential competitors from even aspiring to a larger regional or global role.

A complex and hybrid strategy, involving overt military threat, economic warfare (the TPP), information & cultural warfare, cyber warfare, and legal warfare—of which this lawsuit was key—are all part of this hybrid, multipronged attack—and form the superstructure over this conceit, a dangerous, irrational, and unreconstructed piece of racist, exceptionalist, imperial arrogance.

The Chokepoint

The South China sea in this strategy is one of the key chokepoints of this game plan. Surrounded on three sides by US allies and bases (Vietnam, Philippines, Malaysia, Singapore, Brunei), and thus capable of being closed off in an instant by the US (along with 60% of China’s oil imports and most of its manufactured exports), it is China’s key vulnerability, its windpipe and carotid artery.

Mindful of this risk, the Chinese have, since the announcement of the Pivot and AirSea Battle, to slowly, but steadily claim certain islands, and starting 2014, build installations and resources, with potential geostrategic and military use, while steadily upgrading their naval capacities. They want to maintain at least nominal control and access to the area, keep their options alive, even as they are being strangled and threatened with bases, ships, missiles, patrols, war games, and a newly militarized Japan.

The Philippines is the most important player in this particular gambit: it alone has 5 new US bases (Antonio Bautista AB, right next to the Spratlys; Basa, Fort Magsaysay, Lumbia AB, Mactan-Benito AB) as well as the recently re-claimed Subic Bay, formerly the largest naval base in the world, and Clark Airbase, one of the most powerful global platforms for air power projection. With a long history of US collaboration as a colony and semi-vassal state, it has recently re-ingratiated itself with the US (after kicking it out with its bases), becoming a key pawn in the Pivot, and any impending hostilities.

The Arbitral Farce

And so, a decade and a half’s worth of trust-building, bilateral cooperation agreements, joint statements for peace and development and cooperation between China and the Philippines become flotsam on the shifting diplomatic high seas.

The US-Philippine strategy lies in shoe-horning a complex issue of historical sovereignty and maritime delimitation between multiple states, onto the abstract, isolated technicalities of whether small shoals, reefs, outcroppings can generate certain maritime rights–either a 200 nautical mile Exclusive Economic Zone, a 12 mile exclusion zone, or simply a 500m safety zone. No honest tribunal with any ethics or jurisprudential standards would try to carve out, isolate, and extract the issues in such a prejudicial, artificial, and contrived manner….Features do not generate rights, only States do, and without determining state sovereignty, it’s impossible to determine delimitation in the abstract, especially with multiple state claimants…. 

However, to no one’s surprise, but with very little actual reasoning or proof, the tribunal claims–as it was engineered to do–that no maritime rights are generated by low-lying shoals or insular features, and therefore the Chinese have no historic rights to the South China Sea.  

In and of itself, these findings themselves are astonishing. If enforced, a near dozen US island air bases in the Pacific and Caribbean (Midway, Wake, Howland, Baker, Johnston, Kingman Reef, Jarvis, Palmyra, Navassa) would be downgraded to tide markers around public ocean thoroughfares; Japan would lose its EEZ around Okinotorishima and Minamitorishima Islands; the disputed Senkakus could not be claimed at all, and for that matter, a large part of the land of the Netherlands, one quarter of which would be normally submerged without sea walls, dykes, pumps, and constant human intervention would be subject to expanded ocean territory claims by neighboring countries (Germany and Belgium).

The judgement contravenes international law and commonsense. The world–including China– are within their rights to ignore such a farcical ruling.