On July 12 a specially-selected five judge arbitration panel issued a determination on conflicting claims between China and The Philippines to portions of uninhabited islands, largely barren rocks, in the South China Sea. China declined to participate in the arbitration process or to acknowledge it as having jurisdiction. The specific decision in this case regards conflicting claims between China and the Philippines in what China calls the Nine-Dash Line. It involves the Spratly and the Paracel Islands in a larger domain where Beijing’s territorial claims to the islands partly overlap those of the Philippines, Vietnam and Taiwan.
It also involves rights in what is arguably the world’s most economically and therefore, militarily, strategic sea passage lanes. The South China Sea is transit to about half of the world’s daily merchant shipping, a third of global oil shipping, two-thirds of all liquid natural gas shipments and more than a 10% of the world fish catch. Some $5 trillion in trade passes through the waters annually. In a sense it is potentially China’s Achilles Heel in any future military or sanctions clash with Washington, something a Hillary Clinton presidency in 2017 would make quite plausible.
Since the UN Convention on the Law of the Seas (UNCLOS) came into effect in 1994, the Permanent Court of Arbitration in The Hague has acted as registry in all but one of the cases that have been arbitrated under UNCLOS. It is not a sitting court in any traditional sense. Rather, it is a bureaucracy under the President of the International Tribunal for the Law of the Sea (ITLOS) that facilitates selection of arbitrators in specific disputes, in cooperation with both disputing parties, something absent here.
Non-binding
The arbitration panel, whose rulings are non-binding, determined that, “the Tribunal finds that China has in the course of these proceedings aggravated and extended the disputes between the Parties through its dredging, artificial island-building, and construction activities. In particular, while these proceedings were ongoing: China has aggravated the Parties’ dispute concerning their respective rights and entitlements in the area of Mischief Reef by building a large artificial island on a low-tide elevation located in the exclusive economic zone of the Philippines…”
Their ruling was that China’s “nine-dash-line” is invalid; that reclaimed islands have no exclusive economic zone (under Chinese sovereignty-w.e.); that China has behaved unlawfully in interfering with Philippine fishing and mineral activities and constructing artificial islands; and that Beijing has damaged the environment.
In their concluding remarks, the Arbitration Panel members admit, “The root of the disputes presented by the Philippines in this arbitration lies not in any intention on the part of China or the Philippines to infringe on the legal rights of
the other, but rather—as has been apparent throughout these proceedings—in fundamentally different understandings of their respective rights under the Convention in the waters of the South China Sea.”
Then, in the last sentence of their conclusion, they write, “The Tribunal considers it beyond dispute that both Parties are obliged to comply with the Convention (on Law of the Sea-w.e.) including its provisions regarding the resolution of disputes, and to respect the rights and freedoms of other States under the Convention. Neither Party contests this, and the Tribunal is therefore not persuaded that it is necessary or appropriate for it to make any further declaration.”
Skillfully hidden amid the somber judicious-sounding language of the tribunal is the fact that their entire process is illegal. Arbitration requires that both parties seeking a resolution to conflicting claims agree to turn to a neutral arbitrator to resolve their mutual conflicting claims. In this case, the Washington-friendly regime of former President Benigno Aquino III, unilaterally, on Obama Administration urging, pressed arbitration claims in The Hague despite the fact that the second party, China, refused that arbitration in favor of continuing diplomatic bilateral talks.
Typically, the US State Department is demanding now that China respect the PCA ruling in terms of the UN Convention on the Law of the Seas regarding the islands and abandon them, though the US itself never ratified the Law of the Seas Convention.
The case never should have come to a hearing.
When the Aquino government unilaterally went ahead with Washington support in 2013, Beijing realized the malicious intent of Washington and NATO to militarize the South China Sea conflicting territorial claims as they had just done in the East China Sea with promotion of Japanese claims to the barren islands calls the Senkaku Islands near Taiwan.
China calls the Senkaku the Diaoyu Islands, and argues that they have been Chinese since at least 1534. In a 2015 meeting with Japan Prime Minister Shinzo Abe, who is pushing Japan to become a military power again despite its constitution, US President Obama said the US would back Japanese claims to the strategic Senkaku Islands with military force, hardly a neutral gesture of peace and good will on the part of Washington.
Dramatis Personae
As the events in the South China Sea are being very carefully planned on the side of China’s hostile opponents in the region, above all by Washington, not only, but also Abe’s Japan, it is important to know the Dramatis Personae or key actors in this tragi-comedy being staged under what is called the UN Convention on the Law of the Sea.
First we begin with the party who initiated Tribunal action against China in 2013, the government of the Philippines. President then was the US-tied scion of the very wealthy Philippines sugar plantation dynasty, Benigno Aquino III. Under Aquino’s six-year term in office which ended this June 30, he re-invited the US Armed Forces to use the former US navy base at Subic Bay as well as the former US Clark Air Base twenty years after the Philippine Senate forced the US to leave. Aquino’s tenure also saw the Philippines included in an emerging new US-led Asian military alliance, forming in the Asia-Pacific region, to date consisting of the Philippines, Australia, and Japan. And this April, in one of his last acts as President, Aquino agreed with US Defense Secretary Ash Carter to begin US troops and military equipment rotations in the Philippines and joint patrols in the South China Sea.
In June 2012, the Aquino government, after months of negotiations with the US Government, said that the United States military could use the former bases. The US moved back to its Naval Base at Subic Bay, from which it had been forced out twenty years before by the Philippines. In September, 1991, despite the willingness of Aquino’s mother, then-President Corazon Aquino, to renew the expiring bases treaty with Washington, a hostile Philippines Senate refused, amid widespread popular outrage against repeated clashes including countless rape incidents between US military personnel and the local Philippine civilians. The bases were ordered closed.
The US move back to the bases in the Philippines was an integral part of the Obama “Asia Pivot” which, as is now clear, is an ill-disguised US-led “China Pivot” to contain the growing global influence of China. In April, 2014 the Aquino government signed an Enhanced Defense Cooperation Agreement with the United States.
The decision of the Aquino government, in office until June 30, 2016, to initiate, against the wishes of China, The Hague arbitration on the Spratly Islands dispute, was a calculated provocation against China, fully backed by the Obama Administration, as usual these days, “leading from behind.”
Japan’s Dirty Role
Once the pro-US Aquino regime agreed to unilaterally go ahead, knowing China would reject arbitration, the trap could be set. Instead of adhering to the legal procedures in the UNCLOS treaty for mutual naming of a five-person arbitration panel in the islands dispute, the Philippines named one judge and, extraordinarily, the then-President of the International Tribunal for the Law of the Sea (ITLOS), Shunji Yanai, himself, named the other four members. None were China friendly.
Yanai, a former Japan Ambassador to Washington, is an adviser to right-wing Japanese Prime Minister Shinzo Abe. Yanai, who was forced to leave the Japanese Foreign Ministry amid an embezzlement scandal some years back, in 2014, soon after leaving the ITLOS, presented a report to Abe advocating lifting the ban on Japan sending its military overseas. In August 2013 as he was still choosing arbitrators, Yanai told Japan’s national NHK TV that Japan’s islands were “under threat” and that Japan has “enemies” and needs to improve its military strength for safeguarding security.
Notably, Yanai is also consultant to Japan’s huge Mitsubishi Group, Japan’s leading defense industry group, the major industrial advocate in the 1920’s and 1930’s for Japan’s military turn, which today stands to reap billions in military contracts from a constitutional change such as Yanai advocates and Abe backs.
Washington’s Asia Pivot
Until 2013 China and the Philippines had been in diplomatic dialogue on the island dispute. Once the unilateral 2013 Philippine formal request for Hague arbitration of the disputed islands was filed over China’s objections, other increasingly hostile US military actions surrounding China took place. These included US covert interference in China’s Xinjiang Province to foment Uyghur unrest and US National Endowment for Democracy-sponsored Hong Kong “Umbrella Revolution” protests in September, 2014. Beijing began to take very seriously the growing hostility towards China coming from Washington. The Obama Administration free-trade push with Japan and other Asian nations, deliberately excluding China from a new Trans Pacific Partnership trade agreement in late 2015, also made clear for Beijing that future relations with NATO and especially Washington would become ever more conflicted. However nothing made that more clear than Washington’s 2011 decision to implement the Asia Pivot military strategy to encircle China.
In 2011, the Obama Administration announced that the US would make “a strategic pivot” in its foreign policy to focus its military and political attention on the Asia-Pacific, particularly Southeast Asia, that is, China. During the final months of 2011 the Obama Administration clearly defined a new public military threat doctrine for US military readiness. During a Presidential trip Australia, the US President unveiled the so-called Obama Doctrine. The following sections from Obama’s speech in Australia are relevant to the present islands dispute:
“With most of the world’s nuclear power and some half of humanity, Asia will largely define whether the century ahead will be marked by conflict or cooperation…As President, I have, therefore, made a deliberate and strategic decision — as a Pacific nation, the United States will play a larger and long-term role in shaping this region and its future…I have directed my national security team to make our presence and mission in the Asia Pacific a top priority…we will allocate the resources necessary to maintain our strong military presence in this region. We will preserve our unique ability to project power…We see our new posture here in Australia…I believe we can address shared challenges, such as proliferation and maritime security, including co-operation in the South China Sea.”
In August 2011 the Pentagon presented its annual report on China’s military. It stated that China had closed key technological gaps noting that China’s military investments had “allowed China to pursue capabilities that we believe are potentially destabilizing to regional military balances, increase the risk of misunderstanding and miscalculation and may contribute to regional tensions and anxieties.”
The Pentagon strategy against China that the Asia Pivot is preparing is called “Air-Sea Battle.” This calls for an aggressive, coordinated US attack in which American stealth bombers and submarines knock out China’s long-range surveillance radar and precision missile systems located deep inside the country. The initial “blinding campaign” would be followed by a larger air and naval assault on China itself. Crucial to the advanced Pentagon strategy is US military navy and air presence in Japan, Taiwan, Philippines, Vietnam and across the South China Sea and Indian Ocean. Australian troop and naval deployment is aimed at accessing the strategic Chinese South China Sea as well as the Indian Ocean. The stated motive is to “protect freedom of navigation” in the Malacca Straits and the South China Sea.
Little wonder that some in Beijing began to look very seriously at the waters around the South China Sea in terms of its very survival in a potential future conflict with NATO and the United States, one with Japan playing a dirty vassal role for Washington.
The 2005 US intelligence Annual Report to the US Congress on China described what they saw as Chinese military strategy to defend her access to vital oil from the Persian Gulf and elsewhere:
“…a growing dependence on imported energy resources needed to sustain its economic development exposes China to new vulnerabilities and heightens its need to secure new energy sources and the sea lines of communications from East Asia to the Persian Gulf and Africa needed to move energy supplies to China.”
Those China growing vital sea supply line vulnerabilities, China’s economic Achilles Heel, are precisely what Washington and NATO today are targeting in the islands disputes. The US prodding of the Aquino government in the Philippines in 2013 to unilaterally initiate The Hague arbitration procedure is de facto illegal, unabashedly so as Washington refuses to ratify the UN Convention it uses to beat China with.
As China has repeatedly pointed out in explaining why it refused to partake, arbitration of an international dispute, by definition, can only take place when both parties—in this case, the Philippines and China—would agree to turn to a mutually-agreed arbiter or panel of neutral, mutually-chosen arbiters, recognized experts on international maritime law, to resolve matters.
In comments to the press, Motofumi Asai, a former Japanese Foreign Ministry official specializing in China relations, stated after the July 12 Hague ruling, “From the result of the arbitration, people can see that it was conducted by a bunch of people who knew very little about the South China Sea issues.” Japanese political analyst, Jiro Honzawa, stated in his blog, “The Philippines was abetted by the US and Japan to apply for arbitration, because the latter two want to contain China…
The arbitration was a trap set up by Japan and the US.”
At this point it remains to be seen how the newly-elected President of the Philippines, Rodrigo Duterte, reacts to pressures from Washington to escalate the conflict with China. By the Philippine Constitution, Aquino was barred from re-election in the May, 2016 elections that saw Duterte win by a landslide margin, and Max Rojas, Aquino’s choice, soundly trounced in an election where 81% of eligible voters turned out. In early June, before the arbitration decision but after his victory had become official, Duterte told press that under his presidency, the Philippines would not rely on the United States, indicating an inclination to greater independence from Washington in dealing with China and the South China Sea.
The international differences between China and the Philippines, as between China and Japan over wet, barren islands in the South China Sea and in the East China Sea are not about grabbing potential offshore oil and gas, nor about catching a few million more fish for Chinese fishermen. It’s all about the security of China and the security of her most vital shipping lanes. It would be interesting to see how readily compromises among various parties, especially between China and the Philippines, might arise were Washington to get its dirty nose out of the matter along with Japan’s Abe government.
F. William Engdahl is strategic risk consultant and lecturer, he holds a degree in politics from Princeton University and is a best-selling author on oil and geopolitics, exclusively for the online magazine “New Eastern Outlook”
