Tuesday, 18 October 2016

China, the South China Sea, and UNCLOS - References and Resources

The Chinese Media - actually, just one, the Global Times - has continued their campaign of disinformation and distortion of facts to present their delusion (or illusion) of persecution by global and regional players. Their latest was to accuse SG of trying to put on record the status of the South China Sea dispute, in opposition to the views of "many"  at the Non-aligned movement (NAM) meeting.

It is interesting that the Chinese media (which in this case was just the Global Times, and apparently a mouthpiece of the Chinese Govt), felt it necessary to a) "target" SG for acting against Chinese interests, b) completely misrepresent (i.e. lie) about the proceedings, and c) fabricate from whole cloth the entirely fictitious narrative in order to do so (i.e. they didn't even try to lampshade it with some semblance of facts).

By targeting SG, they are either trying to blackmail us, get us on the defensive, put us on notice that they require us to fall in line. And in case we missed THAT point, they mentioned their disappointment as SG is the country coordinator for ASEAN-China relations.

By fabricating a lie out of whole cloth, they are basically displaying their arrogance and assumed ability to warp reality as they so dictate. If they were referencing an actual incident and putting a spin on things, or their perception of SG's actions, that's one thing. In this case, they don't even care to have any tenuous link to facts or reality.

It's almost like they are channelling Donald Trump.

I have been "debating" with random "Defenders of China" or Chinese "Ultras" or simply "China Apologists" online on the PCA UNCLOS-based South China Sea ruling. 

Here are some of the factual references that I consult to ensure that my position is supported factually (as opposed to idiosyncratically, ideologically, or prejudicially).

UNCLOS - the United Nations Convention on the Law Of the Sea. In arguing about the applicability of UNCLOS to the dispute and in particular the arbitration initiated by the Philippines (acceded to UNCLOS 8 May, 1984), UNCLOS and the articles of UNCLOS are often referenced in argument, often without relevance, accuracy, or even comprehension. Feel free to read the original document, or failing that (it is thick with legalese), depend on these experts and informed commentators to summarise the issues for you.
About the Arbitral Tribunal.
About the claims and counterclaims, and the position of various parties.
About China's Historical Perspective and Inclination.
About the implication of acceding to UNCLOS, specific to the South China Sea issue.

The PCA Award 12 July 2016 - the award/judgement of the PCA. Again this is the target of much animus (and angst) of the China Apologists/Chauvinists/Nationalists, but most got their "facts" from second- or even third-hand interpretation of the judgement. Many argue based on logical fallacies or ideological (or even political) assumptions as to the rightness or wrongness of the award/judgement. And of course, some even dismiss the authority of the PCA to hear the case. Which brings us to the next reference.

The Award on Jurisdiction - the judgement by the PCA as to whether the questions put to the Tribunal was within their authority under UNCLOS to hear and decide. This was because China claimed that the Tribunal had no authority to hear the case. Of course the China Apologist will claim that asking the PCA to decide if they have jurisdiction is a conflict of interest, and OF COURSE, the PCA will rule that they have jurisdiction.


Instead, we should simply take China's opinion that the PCA has no jurisdiction.

I would call that a double standard, but that would give "standard" a bad name.

Here is what an impartial observer would do. China (acceded to UNCLOS, 7 June 1996) claims that the PCA has no jurisdiction. That is within China's right to assert. What are China's arguments for such a position? Listen and assess the weight of their assertion based on the evidence that they present.

Then, hear or rather read the PCA's reasoning and how they address the various points of fact, argument or "evidence" that China raised in defence of China's position. Now, you may well decide after reading the Award on Jurisdiction that the PCA was indeed biased and acted in conflict of interest. That would be your opinion. But at least it is an opinion arrived after considering the views and evidence from BOTH sides. If you are a lawyer, or have some training in law, that opinion may have some weight. If your specialty is in International Law and Conventions, your opinion would have even greater weight. And if you are the Head of Ocean and International Law and teach at NUS, then your opinion would certainly be worth listening to.

Here is an excellent (IMHO, you may disagree) analysis and explanation by Robert Beckman. And an excerpt which summarises the procedure:
The Philippines initiated the arbitration proceedings on Jan 22, 2013. Although China decided that it would not appear or participate in the proceedings, the arbitration proceeded in its absence in accordance with the provisions of Unclos. After almost three years of proceedings, the five-member tribunal issued its award on jurisdiction on Oct 29 last year. A hearing on the merits of the case was held late last November. The award on the merits was issued on Tuesday [July 12]. The awards on both jurisdiction and the merits were by a unanimous decision of the five members of the tribunal.
So sure, even with the 3 year process, and after reading the 500 page award on merits, the 150 page award on jurisdiction, you can still decide that China is right, the PCA has no jurisdiction, and the award was arbitrary (it is after all an Arbitral Tribunal - "arbitrary" is in its name!). Because, well, not everyone is law-trained, logical, rational, unbiased, and convinced by facts.

But the point is, if you are going to argue that China was given short shrift, then you need to make a logical and rational case based on a factual rebuttal of the award on jurisdiction, and merit.

Much like this pathetic attempt. Here is an excerpt:
The Chinese media have voiced a reasonable suspicion that none of the arbitrators were China- friendly. They also pointed out that Mr Yanai [President of ITLOS, and empowered by UNCLOS to appoint arbitrators in the event that a party to the dispute refused to participate] 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. 
And the rebuttal within the post:
[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. 
... 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... 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. ]

So how is this of relevance or importance or significance to SG?

As SG has stated many times, we are not a claimant to the South China Sea Dispute, and we do not take any position on the merits of the various claims. We are, and intend to be, neutral.

Our only concern, as a small country, is that the world is ruled by law and legal processes and not by might. So as far as we (SG) are concerned, it does not matter who eventually is the "owner" of the various features of the SCS, as long as that is determined by a legal process.

China's actions in the South China Sea has been predominantly based their ability to back those actions with military force and coercion. They have declined to be subjected to international law. Their excuse is that other large powers have also been equally recalcitrant and intransigent. Even if that were true (and it is not), that is a childish argument.

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