Legal Warfare Between Philippines and China
/China's Nine Dash Line (Source: Stratfor)
Chinese coast guard ships in early March prevented Philippine government vessels from bringing supplies to a detachment of Filipino marines on Ayungin shoal. But in its second attempt on March 29 a small Philippine boat managed to elude the bigger Chinese ships and dramatically succeeded in its supply mission.
On March 30, the Philippines submitted a memorial or detailed legal brief to an international arbitral tribunal in The Hague. The memorial, consisting of ten chapters and almost 4,000 pages, detailed the Philippines legal arguments against China, backed by evidentiary documents and maps.
The Philippines is seeking to clarify its maritime entitlements under the UN Convention of the Law of the Sea (UNCLOS), in particular its 200-mile Exclusive Economic Zone (EEZ). Manila is specifically asking the tribunal to declare Beijing’s 9-dash-line, which intersects with the EEZ of the Philippines and other ASEAN countries, as invalid and illegal under UNCLOS.
As expected, China reacted in anger and reiterated its position that it will not participate in the arbitration, nor will it abide by the tribunal’s decision. But it went further, describing the Philippine action as a political provocation that severely damaged bilateral relations and warned of unspecified consequences.
The relations between the two countries have been on a downward trajectory since the standoff at Scarborough shoal in April 2012, when Chinese government ships prevented Philippine authorities from arresting Chinese fishermen who allegedly were engaged in illegal fishing. The two-month standoff ended with the shoal under the effective control of the Chinese ships after the withdrawal of Philippine coast guard boats.
Mutual Distrust
Mutual distrust has increased significantly between the two sides. According to survey data based on random sampling in both countries, China is now the least trusted foreign country in the Philippines while the Philippines is the second least trusted country by the Chinese public. And the mutual suspicion continues to grow.
A survey conducted by the Manila-based Social Weather Stations (SWS) last December showed that China had a negative trust rating of -17, which is the result of comparing the percentage of people who have much trust in China with those who have little trust.
China was the lowest among the countries included in the survey, the only one with a negative net trust rating, followed by Malaysia (+8) and Taiwan (+11). The US (+82) had the highest net trust, followed by Australia (+53) and Japan (+47).
“The common complaint about negotiating with the Chinese: The talks usually end up as a dialogue of the deaf.”
Meanwhile, a survey conducted by the Peking University Research Center for Contemporary China and jointly sponsored by the Carnegie Endowment for International Peace and the China Strategic Culture Promotion Association showed that Japan was the least trusted foreign country by the Chinese public, followed by the Philippines. Only 6 % of the Chinese surveyed said they had trust in Japan, while 9% had trust in the Philippines. The US came in third (13%), followed by Vietnam (16%) and India (17%).
It is worth noting that in the same survey the Chinese respondents considered US as the country posing the greatest threat to China (63%), followed by Japan (17%) while the Philippines hardly registered as a threat (1%). But with the new agreement on enhanced defense cooperation between the US and the Philippines, it is quite likely that the Philippines will rise in the Chinese threat perception scale.
In a sense, it is not surprising that there is a huge perception gap between the two sides. The Philippine media often portray China as an arrogant bully engaged in coercion and harassment of Filipino fishermen while the Chinese media depict the Philippines as a troublemaker and provocateur as well as a pawn and trojan horse of the US.
Legal Warfare
Even if China has rejected the arbitration process, it continues to present its arguments and state its case in public. This effort appears to be aimed at influencing the outcome of the arbitration, as well as preparing the Chinese public and the international community for any eventuality. For the Chinese, this is a form of warfare known as legal warfare. ”
China summarized its position on the South China Sea in a note verbale to the UN Secretary General in May 2009. According to the document, China has indisputable sovereignty over the islands in the South China Sea and the adjacent waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil there of. The controversial nine-dash-line map was attached to this note verbale.
Moreover, in a separate note verbale submitted to the UN in April 2011, China stated its controversial position that Nansha [the Chinese term for the Spratlys] is fully entitled to territorial sea, exclusive economic zone and continental shelf. ”
Thus, from the Chinese perspective, they count their 200-mile EEZ from the Spratlys, not from the Chinese mainland. Hence, the Chinese are making their case that their national territory, which includes the islands in the South China Sea, as well as the East China Sea, and their EEZ overlap with those of the Philippines and other neighboring countries.
It is proceeding from this viewpoint that the Chinese foreign ministry spokesman described the so-called illegal occupation by the Philippines of some islands and reefs in the Spratlys as the direct cause of the bilateral dispute
There are basically two types of disputes between the Philippines and China: the territorial dispute over the sovereignty of the Spratly islands and Scarborough shoal, and the maritime dispute over the entitlements based on the UN Convention of the Law of the Sea (UNCLOS).
Chinese Coast Guard ships prevented Philippine supply ships from reaching the BRP Sierra Madre, the Philippine Navy's outpost in the Ayungin Shoal (Photo by AFP/Jay Directo)
UNCLOS as the Constitution of the Oceans deals with maritime issues and not with territorial issues over sovereignty. Thus, China argues that the arbitration case deals with issues regarding maritime boundary delimitation and thus will involve territorial sovereignty of the Spratlys.
China is also a signatory of UNCLOS, but it issued a declaration in 2006 opting out of the dispute settlement mechanism with respect to several issues, including maritime boundary delimitation and historic title or rights.
Hence, China takes the position that the arbitration tribunal has no jurisdiction over the case since it precisely involves issues that China has opted out of in its 2006 declaration.
From the Philippine perspective, the case submitted to the arbitration tribunal only deals with issues related to the interpretation or application of UNCLOS. From the Chinese viewpoint, the case deals with issues beyond the interpretation or application of UNCLOS and, in fact, is outside the scope of UNCLOS. The tribunal will have to make the final decision on this legal issue.
Scholarly Articles
There is another tactic used by China in its legal warfare against the Philippines: publishing scholarly legal articles to influence the international legal community and thus the members of the arbitration tribunal. After all, the members of the tribunal are themselves legal luminaries in the field of international law, particularly UNCLOS.
One example is the article published in January 2013 by two Chinese scholars in the American Journal of International Law, entitled The Nine Dash Line in the South China Sea: History, Status and Implications. What is worth noting is that one of authors, Zhiguo Gao, is not only a prominent legal scholar in China and abroad, he is also a sitting judge of ITLOS and a Chinese government official with the position of executive director of the China Maritime Affairs Institute under the Chinese government’s State Oceanic Administration. Moreover, China’s official Xinhua News Agency reported last July that he briefed the members of the Politburo when the top leaders held a study session on China’s maritime policy.
In his article, Prof. Gao seeks to clarify the meaning of the nine-dash-line. Its ambiguity has been the source of deep misunderstanding between China and its neighboring countries and led the Philippines to seek a ruling on it by the arbitral tribunal. Gao argues that the nine-dash-line only represents a sovereignty claim to the islands and reefs, and not to the waters, within the lines. According to him, within the nine-dash line in the South China Sea, China has sovereignty over the islands and other insular features and has sovereignty, sovereign rights and jurisdiction in accordance with UNCLOS over the waters and seabed and subsoil adjacent to those islands and insular features. ”
“The Chinese point out that 14 countries surround their country on its land borders, and that border disputes with 12 countries have been solved through direct negotiations since 1949.”
Moreover, he points out that the nine-dash-line preserves Chinese historic rights in fishing, navigation, and such other marine activities as oil and gas development in the waters and continental shelf surrounded by the line. ”
Lastly, he adds that the line can serve as potential maritime delimitation lines for China when it negotiates with its neighboring countries, including the Philippines.
But though Gao provides an authoritative explanation of the nine-dash-line, it remains to be seen if the Chinese government will officially adopt the same position.
Another example in China's legal warfare is the publication this year of a book co-edited by Prof. Stefan Talmon of the University of Bonn’s Institute of Public International Law and Prof. Bing Bing Jia of Tsinghua University. An anthology of legal essays, the book is entitled The South China Sea Arbitration: A Chinese Perspective.
Prof. Talmon argues that since the Chinese position will go unheard in the tribunal, his article serves as an amicus curiae brief advancing legal arguments in favor of the absent respondent. After giving the Chinese arguments, he concludes that the tribunal should refer the dispute back to the parties in order for them to reach a negotiated settlement.
Cultural Factor
Does culture have any role in China's view of the arbitration process? According to some Chinese scholars, China is still influenced by Confucian culture wherein a saying goes as follows, to sue a neighbor is to humiliate a neighbor. Thus, the importance of saving or losing face and the stress on quiet diplomacy to resolve disputes.
Given this mindset, the filing of the arbitration case was viewed as an unfriendly act, as some Chinese diplomats have pointed out. Hence, the Chinese anger and pushback against the Philippines for what is perceived to be an attempt to publicly shame China.
Explaining the Chinese mentality, Prof. Junwu Pan wrote in his essay on Chinese Philosophy and International Law that it was common [for Chinese] to regard adjudication as a kind of shame and loss of face. According to him, There are many vivid Chinese proverbs related to the general aversion to adjudication, such as in death, avoid hell; in life, avoid the law courts, To enter a court of law is to enter a tiger’s mouth, and it is better to be vexed to death than to bring a lawsuit. ’
The BRP Sierra Madre, which is the Philippine Navy's outpost in the Ayungin Shoal (Source: NY Times)
Thus, China insists on direct bilateral negotiations to solve dispute of sovereignty over islands and maritime demarcation, according to its foreign ministry spokesperson.
The common complaint about negotiating with the Chinese is this: The talks usually end up as a dialogue of the deaf due to their stubborn insistence on undisputable sovereignty, thus resulting in an endless stalemate.
Vietnam and Russia
But have direct negotiations with China solved similar controversial issues in the past?
The Chinese point out that 14 countries surround their country on its land borders, and that border disputes with 12 countries have been solved through direct negotiations since 1949. The exceptions have been the unresolved border disputes with India and Bhutan.
But over the past two decades the most significant resolution of border disputes have been with Vietnam and Russia. In the case of Vietnam, which became a unified country after the defeat of the US-backed South Vietnamese regime in 1975, its relations with China were very tense for more than a decade following its close alliance with the Soviet Union and its 1978 invasion of Cambodia, which even led to a limited punitive Chinese attack on Vietnam in 1979.
But negotiations on longstanding border issues eventually started after high-level visits to Beijing by Vietnamese leaders in 1991. Following almost a decade of intense negotiations, Vietnam and China finally resolved their land border dispute in July 2000. More significantly, the two countries reached an agreement on the demarcation of their maritime boundary as well as a fishery cooperation agreement on the Gulf of Tonkin in December 2000.
In the case of Russia, the relations between China and the former Soviet Union deteriorated during the Sino-Soviet ideological rift in the 1960s and erupted into border skirmishes in 1969. Negotiations over their bitter border disputes only gained momentum after the normalization of bilateral relations following Gorbachev’s 1989 summit meeting with Deng Xiaoping in Beijing.
After more than a decade of talks, the two sides finally resolved their border issue in 2004, including the sensitive dispute over Ussuri Island along the Amur River, which had led to fears of a possible Sino-Soviet war in the late 1960s.
But the key ingredients for the political settlement of such border disputes are good political relations, strategic patience in negotiating sensitive issues and a significant degree of statesmanship on both sides.
The relations between the Philippines and China are now in a very difficult phase and the challenge is how to keep the channels of communications open and maintain economic and other types of cooperation while managing the bilateral disputes and preventing any miscalculation that could result in military conflict.
Chito Sta. Romana
Chito Sta. Romana, an independent analyst based in Manila, covered China for ABC News from 1989 to 2010. This article is based on a talk he gave at a recent forum on Understanding 21st Century China held at the Asian Institute of Management.