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Making a Mockery of International Law: the Arbitral Tribunal on the South China Sea Prepares the Way for War

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A car is stolen.  It’s a car that has been in the family for generations: picnics, road trips, weddings, funerals, accidents.  There are pictures, memories, indelible life events.

Then there is a series of violent robberies in the neighborhood. The house is ransacked, family members are taken hostage, others killed, children—young daughters–are kidnapped, and in the confusion, mayhem, and distraction, the car also disappears.

A while later, a neighbor turns up with the car.  The neighbor claims it’s their car.  They say that they bought it–for a single dollar from a Tomas, a well-known car thief, who claims it was abandoned. (Tomas is subsequently arrested).  Alternatively, they say they found it on their property, and that they claimed it as their own, since it was on their property, and clearly abandoned.

The owner, busy with tidying up the mess and dealing with tragedy, lets the issue slide for while. But finally, the two parties get together. They disagree on ownership, but attempt to reach an agreement about the car.  They agree to negotiate amongst themselves, and are in the process of doing so, when a developer, a friend of the neighbor, with a racist eye on taking over the first person’s house, decides to sow some discord.

Why bother negotiating? He asks the neighbor.  You will have to give something up.  Why don’t you go to my friend’s shop over here–he’s an expert–and he can decide for you, who the owner is.

How will they do that, asks the neighbor?

They will find out who the car parts belong to.  The rightful owner of the car parts is the owner.

The car parts, asks the neighbor?  Isn’t the owner of the car, the owner of the car parts?  How will determining the car parts help, asks the neighbor?

Yes, we’ll look at some very specific of parts of the car.  Parts, says the developer, with a sly wink.

The neighbor, now emboldened, decides to take it to the shop to determine the owner of the “parts”.  The original owner, sensing a rat, declines to participate.

The neighbor pays for the assessment.  The original owner objects, saying that the “expert” is not qualified to determine ownership, that there is nothing in his “expertise” that could allow him to make the determination, and that he has papers proving his ownership anyway.

The neighbor, with the prompting of the developer, goes ahead anyway.

The “expert”, looks at the tires, and determines that tires have been used on several cars and cannot be owned by any one person.  He then sniffs the air in the tire on the car, examines the air in the tire, and then declares loudly that the air in the tires cannot generate a title of ownership to the original owner.  The air does not belong to the first owner.

He goes on with 14 other “parts”, and makes the same determination. None of these parts generate a title of ownership.

Therefore, by inference, the car cannot belong to the first owner.

The car therefore belongs to the person on whose property it was found.

The first owner, if they do not abide by this ruling, must be a criminal, and must abide by it or face global approbation and punishment.

At this point, the developer pulls out a gun, cocks it, and aims it in the owner’s face.

This in a nutshell, is the Court of Arbitration’s South China Sea ruling on the China-Philippines case.

The details are as follows.

The Chess Board

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 rights accruing to them:

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

Other countries make other various historical claims: the Vietnamese claim usage from the 17C onwards, 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, 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.   The Chinese, at the time, busy with national reconstruction, the Korean war, and weakened with internal strife, protest, but otherwise leave the matter alone for decades.

The Red Queen

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.   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.

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, economic warfare (the TPP), information & cultural warfare, cyberwarfare, and legal warfare—of which this lawsuit is 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, 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 started, since the announcement of the Pivot, to slowly, but steadily claim certain islands, building 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 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-opened Subic Bay, 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 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.

You don’t have to be conspiracy theorist to surmise the following dialogue from the US to the Philippines: “We can’t go directly at the Chinese—not just now–but you can. If you escalate the conflict, get their goat, we’ll help you. It’s simple: if they come after you, they are bullies, and if they don’t they’re pussies. Either way they lose face. And when they do come after you, we can take them to court. We specialize in litigation. We can do lawfare like no-one’s business.

And we’ll do it in a special court. Not just any court. Not a public international court like the UN International Court of Justice, which is where these things really get hashed out. If we go there, they will thrash our butts over sovereignty. But, we can get a little known private star chamber with a pretentious title, originally created to render judgments in favor of corporations, where the judges are rented, that should give us a favorable decision. The Chinese won’t know what hit them. How good is that? And we will set it up so we will win”.

So, in 2012, Philippine armed Naval vessels confront, and attempt to arrest Chinese fishermen in the Scarborough Shoal. In retaliation, the Chinese prevent fishing in the shoal. Words and actions escalate. And so, as the Philippines and the Chinese relations are pushed to disintegration, the Philippines Aquino III administration takes the Chinese to arbitration. As both parties are signatories to the United Nations Convention on the Law of the Sea (UNCLOS), under annex VII of the convention, the pretext looks plausible. The trap is sprung.

The Boston-based white-shoe law firm–Foley Hoag, which has close ties to the US Military-allied think tank, CSIS, one of the key architects and strategists of the Pacific Pivot, and one of the key power brokers in US foreign policy, is the instrument of this action. The battle unfolds.

There’s a minor problem though.

The Chinese don’t agree to arbitration, and arbitration requires the consent of both parties.  The Chinese have signed an agreement with the Philippines–the 2002 ASEAN-China Declaration of Conduct for Parties in the South China Sea–that it will negotiate bilaterally between each party any territorial claims. This binds the Philippines into negotiating directly with the Chinese.

The Chinese have also signaled, in 2006, that they will exclude disputes concerning maritime delimitation from UNCLOS’s 3rd party dispute settlement procedures. Article 298 states, “When signing or ratifying, or acceding to this convention, a state may declare in writing that it does not accept any one or more of the procedures provided for in Section 2 (Arbitration) with respect to a) a sea boundary dispute which is to be settled in accordance with a bilateral or multilateral agreement binding on both parties…etc.”.  There is nothing unusual in this exclusion clause–30 other countries–including the UK, France, Australia, Spain, Italy, Canada– that are signatories to the UNCLOS have made similar declarations.

So when Chinese do not agree to arbitration, as they have declared 10 years ago, that should be the end of the story: no agreement between parties, no arbitration, since arbitration only works if parties agree to it.  End of story.  Game over before it starts.

Down the Rabbit Hole: Alice in Pivotland

The Philippines, using Foley-Hoag & CSIS, strategize otherwise.   They insist that China be taken to the woodshed through the tribunal.  They insist that the refusal to arbitrate signals a dispute that has to be adjudicated by the Ad hoc Arbitral tribunal itself. The tribunal, oh, so conveniently, gives itself the right to adjudicate the dispute, and cherry-picking Chinese public comments from the media, uses that as the Chinese argument in absentia, to create a semblance of “arbitration” between parties. From then on the die is cast.

A far-right hawk, the Japanese politician–Shunji Yanai, the President of the International Tribunal on the Law of the Sea, a supporter Japanese imperial restoration (and the Pivot against China)–and chair of Shinzo Abe’s committee to gut Japan’s peace constitution, appoints four “neutral” arbitrators.  The Philippines appoints the other.  The Philippines pays for the whole damn thing, the arbitrators, clerks, lawyers, xerox fees, coffee, tea, juice, and bottled water. Since it’s a bought and paid-for private arbitration, not a public international court of law, it costs a pretty penny.  Politics by proxy doesn’t come cheap.

15 “charges” are filed against the Chinese:  these are carefully structured to delegitimate Chinese territorial claims, even though the Ad hoc Tribunal has no authority–in fact the entire body of the UNCLOS–has no authority to adjudicate territorial claims whatsoever.  Territorial sovereignty can only be determined by International Court of Justice–a legitimate UN Body–or through bilateral negotiations, and according to customary international law, not UNCLOS.  UNCLOS has no authority whatsoever to make the judgment for the simple reason that “land sovereignty determines maritime rights”, and it has no authority to adjudicate land rights.  (As if to underscore the point, the UN will release a statement disavowing the tribunal the following day).

It’s also clear that of the 15 charges, few have been actually opposed by the Chinese, since they have never even been presented with them until the start of the tribunal.  The Ad hoc Arbitral Tribunal just doesn’t care.

The tribunal takes matters ass-backwards, using maritime rights to avoid and void land sovereignty claims.  It’s fraudulent, and illegal, but who cares. It’s a land grab by other means, warfare by proxy and paper, and they deliver the entire kitchen sink to the Philippines, ingeniously using a sea tribunal to delegitimate claims to land, and in doing so, discredit the entire Chinese nation.

For legal scholars out there, it’s actually a fiendishly clever little piece of legal sophistry, a rendering–or rather a sundering–of sovereignty by technicalities.  The 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, nor try to resolve them in such an ass-backwards approach.  Features do not generate rights, only States do, and without determining state sovereignty, it’s impossible to determine delimitation in the abstract.

Furthermore, given that the Chinese have not actually made any specific (“granular”) opposition to Philippine claims, counterclaims have to be inferred and stitched together to even generate a pretext for arbitration.  It’s quite the Alice-in-Wonderland mock tribunal, arrayed against a non-existent opponent—with sentence before verdict. It would be hilarious if it were not so serious.

And so 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 the shoals, 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 Carribean (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, and for that matter, a large part of the Netherlands, which would be normally submerged without walls, dykes, pumps, and human intervention would be part of Belgium. But logic be damned, and proof be damned.

If any further evidence of the arbitral tribunal’s deny-China-at-any-cost agenda is in doubt, the downgrading of Taiping Island (Itu Aba), clearly an island by any commonsense standard, to a rock, is clear proof of this. Taiping Island is 1.3 km long, and 12 ft above sea level at its highest point, but no matter: it’s a rock, and down the rabbit hole, the words means only what the tribunal says it means. The livid Taiwanese, who claim the island, invite the arbitrators to visit the island to see the evidence of their own eyes, but the craven arbitrators refuse, already having decided 14 impossible things before breakfast, and rush off in coat tails to other appointments.  Like Citizen’s United, or the Florida Vote decision, when politics is primary, and the geopolitical stakes rarified–the supremacy and continuity of Empire–the evidence of the senses can be discarded, and legal logic transformed into sad simpering prostitution to power.

Endgame: Off with Heads

The final “judgement”, claims the hoary NY Times, pathetic in its decrepitude, but still a faithful instrument of State propaganda, is a “sweeping rebuke” of Chinese claims: there is no legal basis for claims to sovereignty, nor for the construction of islands in South China Sea.  China has caused “irreparable harm to the marine environment”, endangered ships and people, interfered with fishing and oil exploration.  It is bad, bad, bad.  China must “reconsider its tactics or be labelled an international outlaw”. The ruling is “binding”.

The Times fails to mention arbitral tribunal judgments are rarely if ever followed.  Yet western media goes on a braying jag, shouting “international criminal!” from the battlements, towers, and marketplaces, “if you don’t follow the ruling!”   “Lawless!  Shameless! Deceitful!” a thousand right wing online trolls bray.  They omit to mention that the rulings of the UNCLOS have no enforcement mechanism and are uniformly disregarded.  A dozen recent adjudications, and not one of them followed.  Most recently, the British, who lost in their attempt to keep the Chagos Islanders from returning to Diego Garcia, in one of the most flagrant acts of depopulation and ethnic cleansing.  The ruling scoffed at by the British.   No matter.  It’s okay when the West does it, they follow the rule of law, even when they don’t. But these are Chinese, and by definition, they must be evil law breakers.  The Chinese must learn to follow “the rule of law” otherwise they are international scofflaws”, and must be called to task. There are strident calls for military action to enforce and teach the recalcitrant Chinese a lesson.   They can only learn at the end of a stick or a muzzle.  Little matter that the US is not even a signatory to the UNCLOS, repudiating not merely its judgements but the entire concept and apparatus of international judicial arbitration.  A small detail, never mind what we do.  The naughty Chinese must be taught a lesson in global civics, to follow a “rules-based” global order.

Of course, this is just legal warfare used to generate information warfare for the Pacific Pivot.

Any teenager knows, it’s not hard to turn a playground shoving match into a full scale brawl. First invite bystanders, and encourage them to jeer and take sides. Turn the small dustup into a theatrical spectacle, bring in global opinion, and have them turn up the heat and the stakes. Surround, enclose, humiliate and insult. Do a little surreptitious shoving yourself. Second, bring weapons into mix—wear colors, carry arms in the crowd, threaten retaliation, make it a matter of pride and manhood. Third, put down a little trip wire near the opponent’s ankles, so that a minor stumble will lead to dangerous escalation.

This judgment is the legal tripwire, a good one, if a tired old trick, a variation on the tricks used to depose and delegitimate competition or resistance to Empire everywhere.  Find some pretext—preferably a nicely legalistic one and trap the opponent in a bind. Find the opponent guilty of something (weapons of mass destruction, murdering babies, soiling coral reefs, looking at the master’s wife, of trampling on the British flag–of anything), and shout up and down, until blue in the face, criminal, evil, outlaw.  Punish. Discipline. Destroy. Above all, “catapult the propaganda” until something sticks.  If they disagree, they must be guilty, and must be taught a lesson.  Remind them, as the Red Queen said in her FONOP, “all the ways about here belong to me.” War is a good lesson. War builds character, rights all wrongs, puts things back into place.  Let this be the run up to war, a good one, a long time overdue for one to put them back in their place.

The Chinese know a thing or two about war and about peace.  5000 years of history have schooled them to the sorrows of war, and seared in their bones the value of peace.  If they move to war, they move reluctantly, hesitantly, regretfully towards it: Every dynasty embroiders and carves its capitals, palaces and streets with calls and summons for peace: the gate of heavenly peace, gate of earthly peace, the long peace.  A century and half of exploitation and deceit by colonial powers has taught them a thing or two about “global order” and “rule of law” as well: its brutality, violence, treachery, and now its self-serving sophistry and hypocrisy.  They also know a few things about history, about justice, legalism and humanity.   They also know about thing or two about fighting, and when pushed to the wall, will not back down.

Phillippe Sands, who has bloviated widely on the iniquities of his profession, is one of the hotshot Anglo-American lawyers for the Philippines in this case. He was once cautioned by the writer John LeCarré:  “A desk is a dangerous place from which to watch the world”.  LeCarré could equally have warned him, “A bench is a dangerous place from which to engineer history”.  Sands, Foley-Hoag, the arbitral judges, and the architects of the Pivot could learn a thing or two from the spymaster.  Engineering a pretext for war is a terrible thing to do. To contrive so from a bench, while ravaging international law, is unforgivable.

K.J. Noh is a long time activist, writer and teacher.  He can be reached at k.j.noh48@gmail.com

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