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SCS hoax No. 3: ‘Court’ ruled vs China’s claims

You are currently viewing SCS hoax No. 3: ‘Court’ ruled vs China’s claims

Third of four parts

THE third-biggest lie over our South China Sea (SCS) disputes with China has been disseminated in the Hitlerian tactic that a fallacy repeated again and again would be believed as truth.

Indeed, nearly all media reports on our SCS quarrel contain versions of the following statement: “The Philippines sued China before the Permanent Court of Arbitration in The Hague in 2013 over the country’s claims in the West Philippine Sea. In July 2016, the court ruled in favor of the Philippines and rejected China’s nine-dash claim, covering almost the entire South China Sea.”

That’s from a May 24, 2024 report in the Daily Tribune, ironically a paper financed and put up by the officials and supporters of former president Rodrigo Duterte, who called that “court’s” ruling a worthless piece of paper.

Even Ranhilio Aquino, a law school dean and a columnist in this paper, makes the same mistake as the Tribune’s less-schooled reporter, and wrote in a recent column: “China has taken over features and zones rightfully ours, from which we have been unable to eject it. But that we have gone to court and have obtained a judgment declaring what is ours remains one major obstacle to China’s ambition to widen even more its already absurd, exaggerated claims over the West Philippine Sea.” For an academic to make the same mistake as intellectually lazy reporters is a testament to the success of the US portrayal of China as “disregarding international law in its expansionist drive.”

That Tribune’s and Ranhilio’s sentences are chock-full of fallacies. It wasn’t the Permanent Court of Arbitration (PCA) that heard and ruled on the Philippines’ claim but merely an ad hoc tribunal. The PCA was merely the registrar undertaking the documentation functions for the suit and providing the venue for the hearings. The anti-China propagandists however disseminated the fallacy that it was the PCA that heard and ruled on the case in order to make it seem as if it was a court of law, which on the basis of “international law” issued the decision against China. This is equivalent to confusing an arbitration panel with a regional trial court.

Ad hoc

The arbitration panel was an ad-hoc body of five purported experts on international law designated by the Philippines and by the International Tribunal on the Law of the Sea’s president, a Japanese whom China accused of long having an anti-China bias.

The panel indeed ruled that China’s “nine-dash line” (a dashed line drawn around most of the South China Sea) has no basis in international law. But this was a straw-man argument that the Philippines advanced as China’s basis for its claim of sovereignty in the South China Sea.

Philippine EEZ (yellow line) overlaps Spratly Islands, which China and Vietnam claim is their sovereign territory. Red circle if China ever declares an EEZ emanating from the Spratlys, or just from its occupied islands.
An example of an outlying archipelago whose sovereign is so far away. The red-shaded area is the Faroe Island’s EEZ.

China, however, has never declared such, instead, its sovereignty claims over the Spratlys (Kalayaan Island Group to us) and three other archipelagos in that sea are based not on that nine-dash line, as I explained in the second part of this series. China’s claim is based on their exercise of sovereign power made at latest in the 18th century, reflected in its official maps starting 1933, and formalized in its 1958 Declaration on China’s Territorial Seas.

On the other hand, the Philippine claim involves its exclusive economic zone (EEZ), an area 200 nautical miles from its territorial sea, where the coastal state has rights to explore for its natural resources but doesn’t have sovereignty over. The extent of such a maritime zone and the rights of the coastal country was agreed upon by treaty between most countries in the world (notably except the US) and took effect only in 1994. It cannot impinge on a country’s established sovereignty of its land and territorial seas.

The Philippines’ EEZ encompasses the Spratly Islands China has occupied and claimed sovereignty over, which it calls Nánshā Qúndǎo and the Vietnamese, Quần đảo Trường Sa. The Philippines though has never recognized, nor even acknowledged, the claims of the two countries.

An analogy of what the EEZ is as follows: There’s a vacant lot beside your property. You get the homeowners’ association (“Unclos”) to make a rule that property owners like you have the exclusive right to plant a garden up to 20 meters from their fence — and call it “exclusive garden zone.” You asked for this rule so that other homeowners far away from it won’t use it. However, there’s a property owned by another person 10 meters from your fence. Your garden zone, however, cannot overlap with the titled lot of the other owner. The Philippine claim is that the “exclusive garden zone” should extend even to that owner’s land.

Ruling

The Philippine claim and the tribunal’s ruling, in fact, do not mention at all that China and Vietnam have “titles” as it were, of areas encompassed by these two countries, as if these didn’t exist. The tribunal justifies such a stance by invoking the fact that it was constituted only under the United Nations Convention on the Law of the Sea (Unclos), which has no authority in deciding conflicting claims of sovereignty.

The US and Philippine propaganda tack was not to mention at all that China and Vietnam claim to have the (conflicting) “titles” (i.e., sovereignty) to their lots which the Philippine EEZ encompasses.

And what is the kind of “arbitration” the Philippines undertook? Mr. X and Mr. Y each claim to own a piece of land. Instead of going to a court to settle who legitimately owns it, Mr. X demands instead an arbitration by a panel. Mr. Y disagrees and instead asks for negotiations. Mr. X goes ahead with the arbitration, setting up its own panel of arbitrators with Mr. Y refusing to participate. That is essentially what the Philippine arbitration suit against China was.

The tribunal itself emphasized that nothing in its ruling involves which country has the legitimate sovereignty over the features in the Spratlys.

Sovereignty

In the very first pages of the “award,” the tribunal pointed out:

“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).

The tribunal repeated this important point several times in its award:

– “The question of sovereignty over Scarborough Shoal will remain entirely unaffected by the Tribunal’s determination.” (Page 176)

– “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 tribunal’s ruling, however, was a masterpiece in deception by omission, as when one sold property without mentioning there’s another party claiming to own it.

For instance, it declared that Mischief Reef and Second Thomas Shoal are within the exclusive economic zone and continental shelf of the Philippines. However, it did not consider the fact that these two areas are part of what China calls its Nansha archipelago, what is called an “outlying archipelago” whose features, reefs and shoals are considered as one unit.

Archipelagos

Not a few archipelagos are treated as such under international law. The Faroe archipelago, for instance, is 900 kilometers from its sovereign Denmark, nearly as far as China (Hainan) is from the Spratlys. But it became Denmark’s territory in 1948 after the British occupation, and Denmark consequently declared a 200-nautical mile EEZ around the entire islands as a unit (Image 2). Hawaii, another example, is a unit, not a collection of islands. So are Ecuador’s Galapagos Islands, Spain’s Canary Islands and France’s New Caledonia.

China had declared its Nansha archipelago as part of its territory, even before World War II. Mischief Reef, Second Thomas Shoal and its other features are considered as one unit of its Nansha archipelago. (China, however, has not yet declared a 200-NM EEZ around it, which would overlap with the Philippines EEZ).

Neither did the tribunal rule that Scarborough Shoal (Bajo de Masinloc) was not part of Chinese territory, which the Aquino III government abandoned in 2012 after a nine-week stand-off with Chinese vessels. A report of the Center for Naval Analyses — a think tank for the US Navy — in November 2014, that is, two years before the tribunal handed down its ruling, pointed out: “From its perspective, China resolved the sovereignty dispute with the Philippines over Scarborough Shoal in 2012 when it established control over the shoal. Again, it is unlikely to relinquish it.”

The tribunal did not rule that Chinese claim of sovereignty was invalid but merely admonished China that since it was traditional fishing grounds, it must allow Filipino fishermen and those from other countries to fish there. But that has been what China has been doing until the Philippine Coast Guard arrested its fishermen there in April 2012 and even sent a warship there to assist the apprehension.

The three hoaxes I have described strengthen each other’s power to deceive, which partly explains why the SCS issue is so misunderstood even by academics one would expect would really study it so as not to be deceived. The EEZ lie strengthens the deception of the nine-dash-line falsehood, which buttresses the fabrication that a “court” ruled that China has been violating international law in its actions in the SCS. Indeed, the dominant anti-China views on the SCS issue have reached a level of national insanity.

Sinophobia and jingoism further pushes people of little or weak minds to even become emotional about it, as the Philippines Coast Guard spokesman has been when he calls those who disagree with him as “traitors” agents of China.

This is not surprising though. The 19th-century existentialist philosopher Soren Kierkegaard hit the nail right on the head: “Truth always rests with the minority … because the minority is generally formed by those who really have an opinion, while the strength of a majority is illusory, formed by the gangs who have no opinion.”

We cannot let an anti-China foreign policy be based on lies which the US fabricated to demonize its rival superpower.


Facebook: Rigoberto Tiglao

X: @bobitiglao

Website: www.rigobertotiglao.com

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