The US-PH hoax on 2012 South China Sea arbitration
First of three parts
With the us still the hegemonic power ruling the planet since world war ii, we have been under the spell of its hoaxes, manufactured to justify its control over most of the world.
That the vietnamese nationalists’ war of liberation was an act of chinese aggression was one such hoax. That iraq under saddam hussein had weapons of mass destruction, that the us needed to invade it, was another hoax, a horrific one that resulted in 1 million iraqis killed, and that turned the middle east into a cauldron of violence.
America’s most recent hoax is that russian leader vladimir putin simply woke up on the wrong side of the bed three years ago and invaded ukraine. Such a false narrative hides the fact that russia four years ago had given the us-led north atlantic treaty organization (nato) an ultimatum — that if they pursued of its neighbor ukraine becoming a nato member (which would mean that country can host nato military bases), it would attack and occupy it, for russia’s self-defense.
In the case involving us, i continue to be amazed at the endurance of the hoax that “china had gobbled up our territory, which an international court had ruled illegal 9 years ago on july 12, 2016.”
A prime example of us brainwashing over our disputes with china is a piece by philstar columnist andrew pasigan, who presents himself as a geopolitical expert but who appears to be mainly in the hospitality business, published july 9. The first two sentences of his column read:
“on july 12, nine years ago, the permanent court of arbitration delivered its final ruling on the case filed by the philippines against china over territorial disputes in the south china sea. The court affirmed that china’s claim, as embodied by its nine-dash line, has no basis under international law.”
It is amazing that in just two sentences, pasigan writes three huge fallacies, which shows he hasn’t even read the arbitral ruling.
Fallacy no. 1: it wasn’t the “permanent court of arbitration” (pca) that made the ruling. It was a five-man ad hoc panel set up on the basis of the united nations convention of the law of the sea (the unclos treaty). The pca merely provided the office space, the cavernous hall where the hearings were undertaken to dramatize the suit, the clerical support and the filing cabinets to store the documents — with the technical term for such services being the “registry.”
Philippine and us propagandists, however, have deliberately exploited this crucial distinction to portray the ruling as being that by a “court of law” since the pca is a 51-year-old institution that has established a reputation of fairness.
What undertook the philippine-china arbitration — which the superpower did not agree to participate in — was merely an ad hoc panel, not a court of law, as is the practice in arbitration. This also means that the alleged “finality” of its decision is only due to the fact that the panel would never meet again. The parties involved though, even china, could decide to file another suit on the same issue but undertaken by a different panel.
The arbitration’s rules of procedure explained this:
“article 5: the international bureau of the permanent court of arbitration at the hague shall serve as the registry for the proceedings. It shall maintain an archive of the arbitral proceedings and provide appropriate registry services as directed by the arbitral tribunal.
“article 6: the arbitral tribunal consists of five members appointed in accordance with article 3 of annex vii to the convention.”
Fallacy no. 2: pasigan wrote: “the pca delivered its final ruling on the case filed by the philippines against china over territorial disputes in the south china sea.” I’m convinced that the philstar’s janitors know more about this issue than pasigan.
Unclos is a treaty of 166 countries that took effect in 1994, decades and even centuries after most of the world’s nations had defined their sovereign territories (ours was by the us in the 1898 treaty of paris). It does not have anything to do with, and does not have any authority to rule on territorial disputes.
Unclos merely defines countries’ maritime claims, such as the extent of its territorial sea (12 nautical miles from a nation’s baselines, roughly its land borders), the exclusive economic zone (200 nautical miles) as well as the rights nations may exercise over these (absolute sovereignty in its territorial sea, limited control of the resources in the eez). The unclos lays down guidelines and procedures to determine which country has the legitimate eez, for instance if this overlaps with another’s.
Pasigan’s claim that the pca dealt with “territorial disputes” reveals his total, shameless ignorance of this issue. Nobody in the world, not even the united nations, has the authority to deal with territorial disputes. The exception is if both disputing parties agree to submit the matter for adjudication by an international court, usually the international court of justice.
Pasigan has not read the arbitral decision. If he did, he wouldn’t have made that colossal error that it ruled on territorial disputes between china and the philippines. The award itself emphasized this crucial point, in fact in the very first pages of its ruling:
“unclos, however, does not address the sovereignty of states over land territory. Accordingly, this tribunal has not been asked to, and does not purport to, make any ruling as to which state enjoys sovereignty over any land territory in the south china sea, in particular with respect to the disputes concerning sovereignty over the spratly islands or scarborough shoal. None of the tribunal’s decisions in this award are dependent on a finding of sovereignty, nor should anything in this award be understood to imply a view with respect to questions of land sovereignty.” (pages 1 and 2 of the award). My emphasis.
Repeated
The tribunal repeated this important point several times in its ruling:
– “the question of sovereignty over scarborough shoal will remain entirely unaffected by the tribunal’s determination.” (page 176 of the award)
– “the tribunal records that this decision is entirely without prejudice to the question of sovereignty over scarborough shoal.” (page 318)
– “the tribunal has not addressed — and will not address — the question of which state has sovereignty over sandy cay, thitu or scarborough shoal and would thus have an entitlement to the surrounding territorial sea.” (page 296)
The us propaganda tack that it got the philippines to undertake was this: the philippines asked an ad hoc panel to rule on the validity of the philippines’ exclusive economic zone. The panel indeed upheld this claim as it was so obvious it conformed with unclos guidelines.
However, it did not ask the tribunal to rule on china’s territorial claims on the three outlying archipelagos, which included the spratlys — nansha qundao to the chinese — which overlap with the eez the philippines has declared.
Fallacy no. 3. The nine-dash line is not the basis for china’s claim of sovereignty over south china sea islands and reefs.
China had claimed this archipelago as theirs centuries ago, and in the modern era in its 1947 map of its territories, the 1958 declaration on its territorial sea, and its 1992 law of the people’s republic of china on the territorial sea and the contiguous zone. None of these laws say that it is the “nine-dash line” that is the basis of china’s claims. China has never explained what this dashed line represents. (common sense should prod us to ask “why the hell is it dashed, and not a solid line, which cartographers normally use to mark off territories in maps.”)
The philippine eez overlaps with nansha qundao’s territorial sea, and even land territory. This dispute remains unsettled.
It was retired jsustice antonio carpio, who first launched a massive disinformation campaign in 2012 to rally public support for the arbitration suit that the philippines filed against china in 2012, that china had no legitimate claims in the south china sea and was merely an expansionist power.
However, carpio, in 2023, changed his mind. In a lecture at the up law center, he said that our disputes with china “remain unresolved since the unclos governs only maritime disputes and not territorial disputes. There is no treaty providing for a compulsory dispute settlement mechanism for the territorial dispute in the scs.” (see my column “carpio: just wait for sea levels to rise,” tmt, oct. 23, 2023).
Pasigan’s three factual errors in his first two sentences are just the first of his string of boners. I will discuss these in subsequent parts of this series. He should read the 500 words first — [ojo!!! Surely, it’s more than 500 words long, even the summary would be longer than that] — arbitral ruling no matter how long it is, before he writes another word on it.
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The US-PH hoax on 2012 South China Sea arbitration
Source: Breaking News PH
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