PRESIDENT Duterte’s comments on our disputes with China over the South China Sea in his recent State of the Nation Address (SONA) have resuscitated Yellow zombie ideas.
That phrase was coined by Nobel laureate Paul Krugman, who titled the latest collection of his columns, Arguing with Zombies: Economics, Politics, and the Fight for a Better Future.
“Zombie ideas,” he explained, are “ideas that should have been killed by contrary evidence, but instead keep shambling along, eating people’s brains.”
Such a huge zombie idea is the Yellow claim that the arbitration suit against China that the Aquino 3rd government filed in 2013, the award for which was handed down in 2016, was a victory in that it upheld our territorial and maritime claims in the South China Sea.
It is a testament to the power of the United States and its media, and its local minions, that this zombie idea has been kept alive. Ironically, the communists, who claim to be enemies of US imperialism, have been one of the noisiest propagandists for what has been America’s very clever strategy to demonize China that is challenging its hegemony in Asia.
Because of the failure of President Duterte’s officials to unravel for him this Yellow zombie idea, the Yellows have pounced on his statements on the issue in his SONA as defeatist: “China is claiming it. We are claiming it. China has the arms; we do not have it. So, it is as simple as that.”
The missing sentences here should have been right after the first two: “The past administration even sued China to assert our claims, but totally failed. The next step could only be military action.”
Among the zombie ideas in the overarching fallacy that the arbitration asserted our claims in the South China Sea are as follows:
President Benigno Aquino 3rd’s Foreign Affairs secretary Albert del Rosario’s zombie idea: “Most countries want the arbitral verdict enforced.”
The reality: seven countries oppose the award, which include Russia and Taiwan; 33 nations — including those of European Union — “acknowledge the ruling but do not call for compliance”; and 147 countries have simply ignored it.
Only seven countries out of 194 surveyed are demanding that China comply with the award. Except for Vietnam, all of these seven, especially Australia and Japan, have always followed slavishly the US line in foreign relations — so that they were at the forefront of America’s colossally illegal invasion of Iraq in 2003 on grounds that it had “weapons of mass destruction.”
Vietnam has had many of its troops killed and vessels sunk in its skirmishes with China over territory in the South China Sea and has had oil exploration ventures with the US in the Spratlys blocked by China. It would be strange if it did not support something that demonizes China.
The US is so hypocritical to ask for the enforcement of an arbitration award that is based on the United Nations Convention on the Law of the Sea (Unclos): it does not recognize it, as it has not ratified the treaty that took effect in 1994 when 60 nations signed it.
These figures are according to the Asian Maritime Transparency Institute, a think-tank/propaganda platform that the Washington-based Center for Strategic and International Studies set up to disseminate the US views on the South China disputes.
Oxford academic Stefan Talmon, one of the most respected experts in international law, even strongly put it: “The award in the South China Sea arbitration did not receive the rousing endorsement some had hoped for. For example, the 28-member European Union only ‘acknowledged’ the award. No State expressly endorsed the substance of the award.”*
A Philippine Star columnist’s zombie idea: “The Hague arbitration outlawed China’s grab of Scarborough Shoal,” and upheld our sovereignty over it.
The reality: the award (please, please read it) in several places emphasized that it cannot rule on the issue of Scarborough Shoal’s sovereignty:
– “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.” (p. 296)
Aquino 3rd’s solicitor general Florin Hilbay’s zombie idea, another proof he didn’t know what the suit was all about, even if officially he was the one who filed it: “We already have legal title to the West Philippine Sea because we won in the Philippines vs China suit.”
The reality: the arbitration simply upheld that it is the Philippines that has an exclusive economic zone which encompasses a big part of the Spratly islands. But China, Vietnam and Taiwan each claim the entire Spratlys as their sovereign territory, established long before Unclos and the delineation of our exclusive economic zone (EEZ).
The tribunal furthermore emphasized that it cannot rule on claims of sovereignty. The tribunal wasn’t even a court, and no international court can give “legal title” for any territory in the world. This bar topnotcher is astoundingly ignorant of international law.
In the summary of its rulings (called the Dispositif) the panel emphasized that these are “without prejudice to any questions of sovereignty or maritime boundary delimitation.” (p. 471)
Former Supreme Court justice Antonio Carpio’s zombie idea: “The core of the Philippines’ case is that China’s 9-dash line, under which China claims 80 percent of the waters of the South China Sea, are contrary to Unclos.”
The reality: while the arbitral tribunal indeed ruled that the nine-dash line was without basis in international law, China’s claims over the Spratlys is not based on this line, which was drawn by a minor Kuomintang Party official in the main Chinese map in 1947 but which China has never defined.
China, setting aside its claims from ancient times, argues that it is part of its territory, declared so in its maps in the 19th century. France however grabbed it in 1933, while Japan invaded and claimed it in World War 2. China claims that Japan surrendered it to its original owner, which is China. Vietnam, however, claims it was surrendered by France to its succeeding owner which is Vietnam, its former colony. Our real territorial claim is based on Marcos’ Presidential Decree 1596 issued in 1978 which declared a major part of the Spratlys as the Kalayaan Island Group, and made a municipality of Palawan. Marcos claimed that it had belonged to no state at that time or that it had been abandoned.
That is the gist of the territorial disputes in the Spratlys, not “EEZs vs no-EEZs.”
A Yellow zombie idea inexplicably eating the brains of an official of the current administration: “The award is a milestone in the corpus of international law.”
The reality: the award was not handed down by a court, but by a mere arbitration panel. That Oxford international law expert explained:
“Arbitral awards are not a source of international law. There is no formal system of precedent in international law. Judicial and arbitral decisions are thus not binding on other parties in future cases. No other court or tribunal, be it the International Court of Justice, the International Tribunal for the Law of the Sea or another Annex VII arbitral tribunal, is bound to follow the arbitral tribunal in the South China Sea arbitration.”
Indeed, Talmon narrated a dozen decisions by the International Court of Justice, the International Tribunal on the Law of the Sea, and a similar arbitral panel, which were amended or reversed by other courts.
Zombie idea of our ambassador to the US, Jose Manuel Romualdez, who echoed so well US Secretary of State Michael Pompeo’s recent tirade against China that he fits the post of US State Department spokesman: “The arbitral ruling is final, binding and not subject to appeal.”
The reality: that is such an inane interpretation of the arbitral panel’s statement. It simply meant that as far as that particular specific panel is concerned, it has done its job, it doesn’t want to review the case, and just want to go home. The panel members’ in-between-the-lines message here is: “We’re not stupid or malleable to change our minds. Go to another arbitration or court if you want to change our decision.”
As Talmon explained in his article on the arbitration, arbitral awards and even international court decisions can be reversed, as had been done in the past in many cases through four means: 1) an international treaty; 2) actual practice by other states; 3) other international courts and tribunals or by domestic courts adopting a different view on a certain legal question; and 4) subsequent agreements between the parties concerned.
If only Romualdez and other similarly intellectually lazy but noisy commentators bother to read the arbitral award, they’d be happy that for the sake of our country, the award is not final and binding.
Kalayaan Rock Group
The following particular ruling of the tribunal is the reason why I’ve been writing so much to expose it not as a victory for us, but a disaster. Its other rulings, like that on the nine-dash line is useless for us. And the Aquino government spent nearly P1 billion for the suit.
The award ruled: “None of the high-tide features in the Spratly Islands, in their natural condition, are capable of sustaining human habitation or economic life, therefore none of these generate entitlements to an exclusive economic zone or continental shelf.” (Dispositif, Section B (7) p 474 of the Award.”
The Yellow knuckleheads of course were ecstatic over this decision since it meant that the seven Chinese-occupied reefs couldn’t have EEZs, not even the biggest island in the Spratlys, Taiping, which Taiwan occupies.
Guess what? The ruling also meant our eight islands in the Kalayaan Island Group, are no longer islands, but mere rocks, and we lost over 430,000 square kilometers — an area four times Luzon’s area — as EEZ just for our Pag-asa island. If we comply with the arbitral ruling, we have to rename it as “Kalayaan Rock Group” and our Isla ng Pag-asa as Bato ng Pag-asa.
Guess what? China refused to participate in the arbitration and by definition it could only be an arbitration between two parties, so the “no-islands-in-the-Spratlys” ruling applies only to us, and not to Vietnam’s and Taiwan’s islands.
And del Rosario insists we bring the award to the UN General Assembly and ask it to enforce it? Hilarious.
What a colossal hoax for the Yellows to call the arbitration award a victory of the Filipino people. Zombie ideas indeed. I’ve been killing them in over a dozen columns (and no rebuttal at all from the Yellows) but they’re still alive — because of the massive propaganda machine of the US and its local lackeys, and the intellectual indolence pervading in this country.
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