Friday, September 9, 2016

South China Sea: Did the ruling sink the rule of law?

Tan Keng Tat For The Straits Times

AUG 31, 2016

Eight reasons why the tribunal ruling was troubling, especially the decision that turned Taiping Island into a "rock" devoid of its own exclusive economic zone.

On July 12, an arbitral tribunal, constituted under Annex VII of the United Nations Convention on the Law of the Sea (Unclos), ruled in favour of the Philippines at the Permanent Court of Arbitration at the Hague (PCA).

The tribunal made a landmark decision that, as between the Philippines and China, there was no legal basis for China to claim historic rights to resources, in excess of the rights provided for by Unclos, within the "nine-dash" line map that China has been using to assert its claims of sovereignty over territories in the South China Sea.

The tribunal also ruled, inter alia, that China had infringed on the Philippines' rights to fish stocks and resources within its 200-nautical-mile exclusive economic zone (EEZ).

China rejected the tribunal's ruling as null and void on substantive and procedural grounds.

Professor Myron Nordquist, of the University of Virginia School of Law, has opined that the ruling was a "huge mistake" and should be "criticised severely".

In my view as a private researcher who has researched the issue for years, the tribunal's ruling was also weighed down by a litany of controversies as there were eight troubling issues arising from the ruling.

First, some media reports wrongly attributed the ruling to a UN-backed PCA to elevate its impact but that ended when UN spokesman Stephane Dujarric confirmed that the PCA "has nothing to do with the UN". He added: "The UN doesn't have a position on the legal and procedural merits of the South China Sea arbitration case."

The PCA is not a court. It only provides a registry and secretarial assistance to "arbitral tribunals constituted to resolve specific disputes" for a fee.

[Wow. this sounds like a death knell: "Not a Court". Damn right it isn't! That's like saying: "the Small Claims Tribunal is not a court". (Factually correct, but irrelevant) Not a good start. To confuse "PCA is not UN-backed" and "PCA is not a court" is a clear indication that the reasoning in this article is going to be questionable.

Oh, and what does the "UN" in UNCLOS stand for?]

Second is the question of sovereignty. In the 1887 Sino-Franco Convention, France agreed that all the isles east of the Treaty Delimitation Line were assigned to China. That included the Spratly Islands, among others. France attempted to occupy the Spratlys in 1930. China protested and reminded France of the 1887 convention.

In 1933, colonial Philippines contemplated annexing the Spratlys, but then US Secretary of State Cordell Hull cautioned that "the islands of the Philippine group which the United States acquired from Spain by the treaty of 1898, were only those within the limits described in Article III". He added: "It may be observed that no mention has been found of Spain having exercised sovereignty over, or having laid claim to, any of these (Spratly) islands."

Japan invaded China in 1937. In the fog of war, France occupied the Spratlys in 1938. Japan evicted the French and colonised the Spratlys in 1939.

After its defeat, Japan ceded its claim to the Spratlys, returning them to China.

According to Professor John Anthony Carty, British archives show that "there is no dispute regarding the Nansha (Spratly) Islands and that China is the sole title-holder."

Yet the tribunal ruled that Mischief Reef and Second Thomas Shoal lie in the EEZ of the Philippines, effectively awarding these two features to the Philippines.

How a pre-Unclos reef and shoal owned by China could be "awarded" to the Philippines this year by a tribunal was never convincingly explained. Unclos is only the law of the sea and it has no power to award any littoral state with sovereignty or extinguish its pre-existing sovereignty over any territory.

[Correct reporting of facts. Incorrect understanding of the ruling. How a country (China) can "own" a reef and shoal outside of its own EEZ is not convincingly explained by this private researcher. His bias is beginning to show. Yes, I know some might say that his bias had been obvious practically from the start. I like to let the evidence reveal themselves rather than let a few initial facts colour my impression.]

Third is the issue of jurisdiction. The tribunal had no jurisdiction on matters involving maritime delimitation or historic titles, already excluded by a declaration by China in 2006, pursuant to Article 298 (1)(a).

Yet the tribunal ruled that China's historic rights were "extinguished by the entry into force of Unclos in 1994".

This begs the question: Why would China bother to ratify Unclos in 1996 if by doing so its historic rights were extinguished? Why not defer ratification indefinitely like the United States did?

[Why? Because China thought the rules did not apply to it? Because China had lousy lawyers? Because the Chinese Govt is used to twisting the law to suit their purpose domestically, and they think they can do the same internationally so they didn't bother to read and understand what they were signing? Why did China do something so stupid? 

Stupidity is its own explanation.

Refer also to the Commentary by Robert Beckman, where he concludes:
China seems to have been unable to understand that Unclos was intended to establish a universal body of rules that is to be interpreted and applied by all state parties in the same manner, notwithstanding their historical and cultural traditions.For example, China did not seem to understand that Unclos provides that coastal states have the sovereign right to explore and exploit all of the living and non-living resources in the 200-nautical-mile exclusive economic zone (EEZ) measured from their mainland coast, and that it was not compatible with the Unclos for China to assert "historic rights" to resources in the EEZ of other states based on its "nine-dash line" map.]

Also, under Article 288(1), the tribunal's jurisdiction was limited to only disputes concerning the interpretation and application of Unclos.

The Philippines asserted that:
The Scarborough Shoal generates no exclusive economic zone.
Five reefs are high-tide elevations.
Two reefs are low-tide elevations.
The International Court of Justice (ICJ) held in 1962, in the South West Africa cases, that to prove the existence of a dispute, it "must be shown that the claim of one party is positively opposed by the other".

Mr Alberto Encomienda, former secretary-general of the then Maritime and Ocean Affairs Centre of the Philippine Foreign Affairs Department, told China's news agency Xinhua that "China has been for the negotiations all along, but from the beginning we are not".

[Can I call him a liar? Never mind. Here are the evidence considered by the Tribunal (documentation of bilateral consultations between China and Philippines on broad issues, including the South China Sea issues):

Government of the Republic of the Philippines and Government of the People’s Republic of China, Philippine-China Bilateral Consultations: Summary of Proceedings (20-21 March 1995) (Annex 175);
Summary of Proceedings: Philippine-China Bilateral Consultations (20-22 March 1995) (Annex 177);
Government of the Republic of the Philippines and Government of the People’s Republic of China, Agreed Minutes on the First Philippines-China Bilateral Consultations on the South China Sea Issue (10 August 1995) (Annex 180);
Department of Foreign Affairs of the Republic of the Philippines, Record of Proceedings: 10th Philippines-China Foreign Ministry Consultations (30 July 1998) (Annex 184);
Record of Discussion: 17th Philippines-China Foreign Ministry Consultations (14 January 2012) (Annex 204);
Department of Foreign Affairs of the Republic of the Philippines, Notes on the 18th Philippines-China Foreign Ministry Consultations (19 October 2012) (Annex 85).
Based on the above, the Tribunal concluded that there were ample evidence that there had been consultation and attempts to resolve a dispute.

Since no substantive negotiation between China and the Philippines took place, there could not be any dispute. The tribunal's ruling on these assertions could be ultra vires (beyond legal power), thus null and void.

[The writer is not very precise in his thought and argument. He starts by arguing about jurisdiction, and then gets pedantic about whether there was a dispute to be resolved. 

He probably has no legal training. Or if he has, he needs more.]

Fourth is the question of bias. The rule against bias has to be strictly applied because justice must not only be done but must be seen to be done.

The Philippines appointed one member of the five-member tribunal. Since China did not participate in the proceedings, four members were appointed by Mr Shunji Yanai, a Japanese judge who was president of the International Tribunal for the Law of the Sea at the material time.

Judge Chris Pinto from Sri Lanka was originally appointed, but since his wife is from the Philippines he gracefully resigned to avoid any controversy.

The Chinese media have voiced a reasonable suspicion that none of the arbitrators were China- friendly. They also pointed out that Mr Yanai is a right-wing nationalist who is a close adviser to Japan's Prime Minister Shinzo Abe and should have recused himself, as Japan has a serious territorial dispute with China over the Diaoyu/Senkaku islands.

[Apparently the extent of the author's research into the question of possible bias consisted of reading the opinions of the Chinese media. Impeccable research. So who are these biased Arbitrators?

Philippines appointed Judge RĂ¼diger Wolfrum, a German national, As Philippines' appointee, he is not reasonably expected to be China-friendly. 

As China did not appoint an arbitrator, the President of the International Tribunal for the Law of the Sea, appointed Judge Stanislaw Pawlak, a national of Poland, Ideally, he should be "China-friendly". Well, ideally from China's perspective. In principle, he should be learned and impartial. 

In accordance with Articles 3(d) and 3(e) of Annex VII, the President of the International Tribunal for the Law of the Sea also appointed the remaining three arbitrators:
Judge Jean-Pierre Cot, a national of France; Professor Alfred H.A. Soons, a national of the Netherlands; Judge Thomas A. Mensah, a national of Ghana. 
The reader can now search for evidence that the 4 arbitrators appointed by the President are not China-friendly. Note that the media accusation is not that the arbitrators are ANTI-China and therefore biased. But that they are not PRO-China. That's like a criminal saying he can't get a fair trial because the judge is not crime-friendly.

Yes, China, you are right. The ruling was never going to be in your favour because you could not fix the appointment of Arbitrators to ensure only China-friendly ones are appointed. Even the Chinese media's understanding and expectation of how things are done in China has leaked into their commentary, revealing the corruption within the Chinese system. ]

Fifth is the issue of reclamation on disputed features. The tribunal rebuked China for reclaiming land in reefs it considers its own. But according to Mr Encomienda, the Philippines "was the first to do reclamation in the South China Sea, so we cannot demonise China for reclamation". He revealed that their airfield situated on China's Zhongye Island, which the Philippines now occupies, "was built on top of live coral reefs".

[Ah! The classic, if childish, "Ah Seng also do what!" defence.]

Sixth, the tribunal rebuked China for blocking supplies from reaching some Philippine sailors staking a claim on Second Thomas Shoal by grounding a ship. But this shoal was itself one of eight features annexed by then President Ferdinand Marcos on June 11, 1978, using presidential decree No. 1596, which violated the United Nations Charter. That decree created the Kalayaan Island Group, whose boundary illegally extended over the Spratlys.

[I'm not sure what this point or defence or rebuttal is. Apparently, something along the lines of "China is allowed to be inhumane if you act "illegally" (as in against China's wishes). Or something. I'm sure this is a valid legal argument. Somewhere. Probably China.]

Seventh is the issue of conflict of interest over the tribunal's ruling on islands and rocks.

The Philippines' gambit was that no feature in the Spratlys could generate a 200-nautical-mile EEZ and therefore there is no overlapping of its own EEZ.

The tribunal stated that its jurisdiction over some of the Philippines' claims was barred "if a feature claimed by China in the South China Sea were found to be an island, entitled to a 200-nautical- mile EEZ".

In 2012, in the case of Nicaragua v Colombia, the ICJ ruled that an island was defined "by reference to whether it is 'naturally formed' and whether it is above water at high tide and would generate a (12-nautical-mile) territorial sea", and to qualify for a 200-nautical-mile EEZ, "it would need to be able to sustain human habitation or economic life on its own" under Article 121(3) of Unclos.

Taiping Island, occupied by Taiwan since 1946, is a naturally formed, 480,000-sq-m island which is able to sustain human habitation or economic life on its own as it has plenty of fresh water, lush vegetation, locally grown produce, buildings, a hospital, an airport, a harbour and a meteorological station, all supporting over 200 people.

Since the Philippines' entire raison d'etre and the tribunal's own "legitimacy" hinged on a "game changer" decision on whether Taiping Island is an island or a rock, under the rule of fairness the tribunal should have appointed an independent UN agency to make an impartial judgment, after proper field and hydrographic surveys.

Instead, the tribunal ignored the ICJ ruling in Nicaragua v Colombia, studied historical documents and maps, and ruled narrowly that Taiping Island is a rock, validating its own "legitimacy". An invitation to visit Taiping Island was rejected by the Philippines and ignored by the tribunal.

[That is some amazingly convoluted reasoning, and some fantastic logical gymnastics to make an argument for "Conflict of Interest". Must be how he got to be a Private Researcher. Because I don't understand "conflict of interest" the way he is applying it. Maybe it's just me. So I will leave it. I certainly do not know how to argue against something like this.]

In my view, this ruling was not only absurd, it also violated the legal principle of Nemo judex in causa sua, meaning "no persons can judge a case in which they have an interest". To add insult to injury, Taiwan, which lost a 200-nautical-mile EEZ, was not even consulted. Taiwan rejected the ruling as baseless.

[On the "interest" argument, I think this researcher should take his own advice (to the tribunal) and consult a lawyer as to his interpretation and application of the legal principle. As for consulting Taiwan... that is... I leave it to the online comment at the end to summarise.]

Former ICJ judge Abdul Koroma said such a complicated decision takes years to conclude. But here it took only a week during the merits stage in November last year.

[They did? It was decided in November? Then why oh why did the judgement only come in July? Oh they were writing the judgement? And what did they do before November? What did they do since Jan 2013? Over 3 years ago? When Philippines initiated the arbitration proceedings? Well, it is described in their almost 500 page written award (judgement). And the "one week decision"? That was the week during which the hearings were conducted. Apparently, the author is under the impression, that the hearing comprise the entirety of the testimony and evidence considered by the arbitrators and that they, like him, can nimbly jump to conclusions with the most superficial of understanding.]

Eighth is the implication if Taiping Island is not really a rock but can be classified as an island.

[That sounds like a argument from consequence. Along the lines of "you MUST believe in God or you will go to Hell." Whether it is a "rock" or and "island" as defined by UNCLOS is a matter of applying the definitions in UNCLOS in as objective and rational a manner as possible.] 

Taiping Island is about 204 nautical miles from the Philippines. If it is rightly ruled an island with a 200-nautical-mile exclusive economic zone under Unclos, Taiping's EEZ will reach the Philippines' coast and overlap with the latter's EEZ.

If Taiping Island, now occupied by Taiwan, has a 200-nautical-mile EEZ and is considered a part of China under the one-China policy, it would validate the nine-dash line map that shows China's sovereignty claims over the Spratly, Pratas and Paracel Islands, Macclesfield Bank and the Scarborough Shoal in the South China Sea.

[No it won't validate ALL the area within the nine-dash line. ]

Under Article 15 of Unclos, the new maritime boundary between Taiping Island and the Philippine coast is equidistant or about 102 nautical miles, revealing the eight features, annexed by president Marcos, are from China's Spratly Islands.

The tribunal defied conventional wisdom, overreached and arbitrarily ruled that Taiping Island is a rock. The coast was then clear for the tribunal to invalidate China's historic rights within the nine-dash line without the inconvenience of delimitation.

[I would suggest that the author read from page 179 of the Award/decision of the tribunal to page 254. That's 75 pages for an arbitrary decision. The section on Taiping Island runs from page 237 to 253 or about 16 pages (over 50 paragraphs) and covers the scope of their deliberation and considerations.

So how did the author conclude that it was arbitrary? Oh because it was an Arbitral Tribunal carrying out an Arbitration? It is only logical that the Arbitrators make arbitrary decisions right? That's why they are called "Arbitrators" right? Of course. How silly of me.

This is from a commentary by the Head of Ocean Law in NUS on China's "loss" of their "historic rights":
The tribunal stated that the root of the disputes at issue between the Philippines and China lies in fundamentally different understandings of their respective rights under Unclos in the waters in the South China Sea, and not in any intention by one of the parties to infringe the rights of the other.
It can be argued that this has indeed been the essence of the problem. Although China participated in the nine years of negotiations leading to the adoption of Unclos, and became a party to Unclos in 1996, China has interpreted and applied the provisions of the Unclos in the light of its own historical and cultural traditions. ]

Some analysts have dismissed this as a political decision, which could undermine the integrity of Unclos because Japan now says the verdict's legal ramifications apply only to China and the Philippines. Japan insists that Okinotorishima, which is "a collection of tiny specks that are barely visible at high tide, located about 1,740km south of Tokyo, is an island with a 200-nautical-mile EEZ".

But despite the eight areas of controversy which will keep maritime lawyers and law students busy for many years to come, the good news is that China and Asean issued a joint statement in Vientiane on July 26 without mentioning the divisive arbitration case.

They have reached a new modus vivendi to resolve the South China Sea disputes "through friendly consultations and negotiations by sovereign states directly concerned".

The writer is a Singapore-based commentator on Asian affairs and a private researcher on the South China Sea disputes.

[Online Comment:
Interesting opinion. From a private researcher. 
I too can claim to be a "private researcher". I too have an opinion. 
First, the authority of the PCA. Just because it is NOT part of the UN does not mean it has no authority. Interpol is NOT part of the UN. So it has no standing? 
So what is the source or "legitimacy" of the PCA's "authority"? The members who agree to arbitration. AHA! you say. China did NOT agree to arbitration. Wrong. China acceded to UNCLOS. UNCLOS provides for arbitration, even if unilaterally initiated by one party (as Philippines has done).
Second, Sovereighty. The pte researcher asked: "How a pre-Unclos reef and shoal owned by China could be "awarded" to the Philippines this year by a tribunal was never convincingly explained."  
Well, that is because this pte researcher either a) did not do enough research or b) does not understand what he found. In the PCA's judgement: “Conscious that the Convention is not concerned with territorial disputes, the Philippines has stated at all stages of this arbitration that it is not asking this Tribunal to rule on the territorial sovereignty aspect of its disputes with China. Similarly, conscious that in 2006 China made a declaration, in accordance with the Convention, to exclude maritime boundary delimitations from its acceptance of compulsory dispute settlement procedures under the Convention, the Philippines has stated that it is not asking this Tribunal to delimit any maritime boundaries.” 
So what was the tribunal asked to decide? 1) That the South China Sea features (islands, rocks, waters, seabed, etc) are governed by the Convention.2) That the features are “islands”, “rocks”, or “low tide elevations” as defined by UNCLOS3) That China’s actions (land reclamation) violated UNCLOS (interfered with the rights and freedoms of Philippines under UNCLOS), and have damaged or harmed the environment (Part XII of UNCLOS). 
So in accordance with the articles of UNCLOS, the tribunal agreed that a) the Spratly/Nansha islands WERE covered by UNCLOS, and found that b) they were rocks or low tide elevations.that generated no Exclusive Economic Zone of themselves. 
The rest of the 8 points are equally suspect, based on flawed reasoning, cherry-picked examples, "testimony" by media/social media, or are subset/subsidiary points of each other. Or plainly childish.
For example his 4th point is based on media suspicion: "The Chinese media have voiced a reasonable suspicion that none of the arbitrators were China- friendly". Really? Oh well, as a private researcher that the Chinese media is suspicious is good enough right? No need to find corroborative independent evidence.  
Or his fifth point about reclamation, which is a childish: The Philippines did it first. 
And as for Taiwan being consulted over Taiping Island - excuse me, who has been blocking the formal internation[al] recognition of Taiwan as a "country"? And if it has no status as a country, how can it consulted. This is a hypocritical red herring. If Taiwan had been consulted, it would have been another point of contention for China.  
Overall the article, is just hodge-podge of childish, amateur research and opinion.
I recommend the much better analysis by Robert Beckman on the implications of the ruling. Or if you like the original 500 pages of of the Award (without pesky commentary). And if you are a glutton for further mental punishment (or if you life is so exciting you need to read dull text to calm down), here is the Award of Jurisdiction, where the PCA considers if the case falls within its jurisdiction.]

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