by F. William Engdahl, New Eastern Outlook:
Perception is something we often take for granted. That’s very much the case in the world’s perception of the actions of the Peoples’ Republic of China regarding its claims to a number of offshore uninhabited rocks in the South China Sea and beyond. For the most of the collective Western mind, the perception is that Beijing has become hysterical, obsessive—in short, a bit mad—over its asserted claims of territory under various precepts of international law. The Permanent Court of Arbitration (PCA) at The Hague has now ruled against any and all claims of China to various islands or even rocks inside what is known as the “Nine Dash Line” between China’s coast and The Philippines. Washington has piously stepped up, demanding China “respect international law.” At the same time the Pentagon has started international naval war maneuvers in the region, “RIMPAC 2016,” provocatively involving the Navy of the Federal Republic of Germany for the first time since World War II, and largely excluding China. This is getting ugly and not at all what it appears in the general perception to be.
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.
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.
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.
Please follow SGT Report on Twitter & help share the message.