China’s media on the South China Sea ruling

not-one-bit-less

A People’s Daily image that was one of the most widely shared posts on Chinese social media the day of the ruling. Text reads: “China: We can’t lose a single bit.”

Matt Schrader completed undergraduate degrees in international affairs and economics at The George Washington University in 2007 and subsequently spent eight years working in Beijing, among other things, as an editor, translator, and social entrepreneur. Now Chengdu-based, he has recently begun publishing analysis and commentary on Asia-Pacific strategic issues. He is a contributor to the China Story Yearbook 2015: Pollution. He will be returning to the United States in 2017 to begin a master’s degree in international relations. Matt is on Twitter at @tombschrader — The Editors

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The 12 July 2016 arbitration ruling handed down by the Hague-based tribunal convened to hear the case of The Republic of the Philippines v. The People’s Republic of China was much-anticipated by governments and news organisations around the world. In the wake of the tribunal’s emphatic ruling against China’s claims, the reactions of Chinese officials and ordinary Chinese citizens, expressed through both traditional and social media channels, attracted international notice as much for their vehemence as for their near-unanimous agreement with the Chinese government’s refusal to be bound by a ruling born of what it views as an illegitimate process.

However, the specific arguments the Chinese government has marshaled to support its claim that the tribunal’s proceedings were without legal merit have attracted less international notice. In the mainland press, the government has sought to present itself as a cool-headed honest broker seeking to protect international law from debasement by The Philippines and its backers (most notably the United States). Closer examination of these arguments is an illuminating exercise for anyone seeking to understand the genuine sense of grievance expressed by many Chinese netizens post-ruling, as well as for anyone wishing to understand how the Chinese government cultivates such sentiment through the selective representation of facts around the tribunal, its ruling, and the South China Sea generally.

On 13 July, one of the several public WeChat accounts controlled by the Caijing 财经 Publishing Group published an article titled ‘Why the “South China Sea Arbitration Ruling” Is Invalid: The Only Essay You Need to Read!’ 为什么南海仲裁无效?看这篇就够了!Less an essay than a roundup of various official and semi-official statements on the ruling from sources such as Xinhua 新华社 and Foreign Ministry press briefings, the article serves as a fairly comprehensive summary of the Chinese government’s views on the tribunal’s proceedings, as well as a microcosm of how these views were packaged and reproduced for public consumption as part of a concerted campaign to delegitimise the tribunal in the eyes of China’s domestic audience.

The article begins with a lengthy comic dialogue between China—represented by a panda—and the arbitration panel—represented by a fox. The use of cartoons to address such a weighty topic might seem unconventional. However, the Chinese government has frequently employed cartoons in its public education campaigns (and in this, it is hardly unique).

comic-1

The fox opens the dialogue by pointing out that ‘As China is a member state of the United Nations Convention on the Law of the Sea (UNCLOS), it should abide by international arbitration rulings!’ The panda replies, ‘According to the Convention, arbitration tribunals have no jurisdiction on questions of territorial sovereignty!’

This reading of the tribunal’s ruling, while common in Chinese media and official pronouncements, is problematic. The statement that arbitration tribunals convened under UNCLOS are not authorised to rule on questions related to territorial sovereignty is true. However, both The Philippines and its counsel (American law firm Foley Hoag) went to great lengths in constructing their case to avoid asking the tribunal to rule on which state exercised sovereignty over the disputed features in the South China Sea. Indeed, there would have been little point in bringing such a case, as questions of territorial sovereignty are perforce outside of UNCLOS’s scope. [1] This misreading of the nature of the tribunal’s ruling continues in the next dialogue: between the arbitration tribunal and an ‘international law expert’, represented by a hippo.

comic-2

The tribunal claims that ‘The Philippines is asserting its maritime right to a 200 nautical mile Exclusive Economic Zone. That’s permissible under UNCLOS!’ The international law expert replies, ‘Ah, well, those 200 nautical miles extend into the zone of sovereignty [created by] China’s islands and reefs, so it is still a question of territorial sovereignty!’

This exchange, as with the previous one, misrepresents the nature of the case brought by The Philippines, and the ruling issued by the tribunal. Rather than asking the tribunal to rule on who exercised sovereignty over a vast array of disputed features in the South China Sea, The Philippines simply asked it to rule on what sort of features they are, in a bid to dramatically reduce the scope and size of any possible Chinese claim. In no case did The Philippines or its legal counsel ask the tribunal to rule on which state exercised sovereignty over a particular land feature.

To cite an illustrative example, The Philippines asserted in its filings before the tribunal that Mischief Reef—recently the site of intense Chinese land reclamation work—was prior to its reclamation a ‘low-tide elevation’—that is, a land feature that was only above water at low tide [2]. If this were the case, it would nullify the question of territorial sovereignty, as UNCLOS stipulates that low-tide elevations cannot be claimed unless they are inside a country’s twelve nautical-mile territorial sea, and cannot themselves generate territorial seas or exclusive economic zones.

In another example, The Philippines asked the tribunal to find that Cuarteron Reef—which has also seen significant land reclamation work in the last two years—was a ‘rock’, a term with a very specific legal meaning under UNCLOS; namely, a land feature that remains above water at all tides but which is not itself capable of supporting continuous human habitation. Under UNCLOS, rocks generate a twelve nm territorial sea, but no 200 nm Exclusive Economic Zone.

Map showing 'rough indication of SCS areas China could plausibly have hoped to claim under UNCLOS, before & after the arbitration' by Andrew Chubb.

Map showing ‘rough indication of SCS areas China could plausibly have hoped to claim under UNCLOS, before and after the arbitration’ by Andrew Chubb.

In nearly every case, the tribunal sided with arguments made in The Philippines’ filings, resulting in a striking reduction in the potential maximum size of China’s claim in the South China Sea, illustrated in a pair of images produced by Andrew Chubb, a PhD student at the University of Western Australia and author of the blog South Sea Conversations.

comic-3

In the next panel, China and the arbitration panel are joined by The Philippines, represented as a monkey. As online references to ‘Filipino monkeys’ abound in Chinese nationalist discourse, the Caijing cartoon clearly intended to derogate The Philippines.[3]

The Chinese panda says, ‘As per Sino-Filipino bilateral agreements and the “Declaration on the Conduct of Parties in the South China Sea”, the issue of the South China Sea should be resolved through bilateral consultation by the concerned parties, not by bringing in third parties!’ To this, the arbitration panel fox replies, ‘That … you’ll have to ask The Philippines.’ The Philippines replies, ‘Well … you’ll have to ask [former Filipino president Benigno] Aquino III.’

The Declaration referred to in the cartoon is not a legally binding agreement. Moreover, China’s unilateral, non-consultative decision to build a series of artificial islands covering a total surface area greater than downtown Washington DC is itself a clear violation of the Declaration’s injunction that its signatory parties ‘undertake to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability’.[4] Leaving aside these issues, steps were nonetheless taken by the tribunal in its ‘Award on Jurisdiction and Admissibility’, issued in October 2015 as a response to public objections raised by China, to consider whether The Philippines had an obligation to consult or negotiate with China prior to initiating arbitration proceedings.

In this intermediate award, the tribunal found that neither UNCLOS nor the UN Charter requires The Philippines to engage in substantive negotiations prior to initiating arbitration. Rather, it found clear precedent for the position that the only precondition to initiating arbitration under UNCLOS is an exchange of views between the relevant parties with the aim of clearly delineating areas of disagreement and discussing possible means of resolution. The tribunal concluded that this precondition had been fulfilled by bilateral discussions between China and The Philippines in 1995, 1997, 1998, and 2012.

Misrepresentations of the dispute in China’s official statements and state-controlled media went beyond the nature of the arbitration proceedings and the circumstances under which they were initiated, extending to the tribunal’s standing as an international legal body qualified to hear the case.

In a widely publicised press conference held by China’s Foreign Ministry the day after the ruling’s issuance, cited by the Caijing article among many other media outlets, Vice Minister Liu Zhenmin 刘振民—one of the Foreign Ministry’s top experts on international maritime law and treaties—stated that ‘the arbitration tribunal is in no way an international court. The tribunal has no relationship whatsoever with the Hague as the international court system of the UN. It does have a relationship with the International Tribunal for the Law of the Sea (ITLOS) in Hamburg, but it is not a part of that tribunal.’[5]  Later on, he continued: ‘The arbitration tribunal and the Hague-based Permanent Court of Arbitration aren’t of the same system, but they do have a bit of a relationship [with one another]. Why is that? Because the Permanent Court of Arbitration offered secretarial services to the tribunal, and the tribunal used the PCA’s [arbitration halls] for its hearings. That’s all! … In reality, the tribunal is a temporary body established as a result of The Philippines’ unilateral initiation of arbitration proceedings … In reality, the tribunal’s formation was the result of political manipulation.’

Although Liu’s statements about the PCA are definitionally correct, he has used his understanding of the relationships between UNCLOS, ITLOS, the PCA, and the tribunal, to make an unsubstantiated claim about ‘political manipulation’ and thereby to discredit the tribunal in the eyes of a domestic audience. His intention was neither to explain the complexity of the UNCLOS arbitration process nor to consider what an effective and ‘non-manipulative’ multilateral approach to the initiation of international arbitration proceedings between China and The Philippines might look like.

Specifically, Liu is correct that the tribunal was not a UN court, nor was it part of ITLOS, one of two bodies specifically empowered by UNCLOS to hear arbitration cases (the other being the International Court of Justice, ICJ). It is likewise true that the services offered by the PCA to the tribunal were largely administrative in nature, although in light of Liu’s dismissive comments later in his press conference about the manner in which the tribunal’s costs were covered, the importance of the PCA’s administrative role should not be minimised. His assertion that the tribunal was ‘a temporary body established as a result of The Philippines’ unilateral initiation of arbitration proceedings’ is also correct.

However, the overall thrust of Liu’s statements, implying as they do that the tribunal was a rogue institution operating outside the bounds of customary international law, are entirely off the mark. The tribunal was, above all, an UNCLOS tribunal, brought into being with the full authority of and in accordance with the procedures laid down by that Convention, to which China and The Philippines are both signatories. Put differently, the tribunal’s ultimate legal authority derives from the UN Charter through UNCLOS. Although Liu is technically correct that the tribunal was not an international ‘court’, it is hard to imagine an arbitrating body with greater international legitimacy. That said, Liu’s statement does raise an important question. If ITLOS and ICJ are the bodies properly empowered by UNCLOS to hear arbitration proceedings, what motivated the PCA’s involvement in this case?

Article 287 of UNCLOS gives parties to arbitration the right to choose the body that will hear the case—the options provided are ITLOS, the ICJ, and ‘an arbitral tribunal constituted in accordance with Annex VII [of the Convention]’. Although the language of Article 287 encourages the parties to make their selection through mutual agreement, it also contains provisions for instances where such agreement is not possible. If the parties to a case cannot agree on the arbitrating body, jurisdiction defaults to an Annex VII tribunal, or what experts on international maritime law sometimes refer to as ‘ad hoc arbitration’. China’s steadfast refusal to engage at any phase of the arbitration process made ad hoc arbitration the only feasible option.

Once Annex VII procedures are initiated, it is a near certainty that the case will be heard under the auspices of the PCA; indeed, PCA-based tribunals have heard every instance of Annex VII ad hoc arbitration but one since UNCLOS came into force in 1994.[6]  Because the authority of these tribunals derives from UNCLOS, Convention signatories such as China and The Philippines are bound by their rulings, just as they would be had the case been heard by the ICJ or ITLOS. Facts such as these, which would have cast Liu’s assertions in a more questionable light, were not presented in Chinese media commentaries and reports.

In questioning the neutrality of the tribunal, Liu acknowledged that ‘the salaries of judges in international courts, and ITLOS judges, are paid by the United Nations. The goal is to guarantee their independence and impartiality.’ However, he promptly attacked the arbitration tribunal in question as ‘a money-making operation. The money it is making comes from the Philippines and perhaps from some other sources too. It’s not clear [whose money it is] but the tribunal is repaying a service.’

Liu came close to insinuating that the tribunal was involved in some form of bribery. The PCA’s Rules of Procedures require the parties to an arbitration procedure to pay the cost of the proceedings—including the salaries of judges and the advisory fees of any experts called to testify—divided equally between the parties. In its October 2015 ‘Award on Jurisdiction and Admissibility’, the tribunal described China’s stance on payment:

Article 33 of the Rules of Procedure states that the PCA may from time to time request the Parties to deposit equal amounts as advances for the costs of the arbitration. Should either Party fail to make the requested deposit within 45 days, the Tribunal may so inform the Parties in order that one of them may make the payment. The Parties have so far been requested to make payments toward the deposit on two occasions. While the Philippines paid its share of the deposit within the time limit granted on each occasion, China has made no payments toward the deposit. Having been informed of China’s failure to pay, the Philippines paid China’s share of the deposit.

In other words, China was given every opportunity to assume responsibility for its portion of the arbitration costs, payment of which was undertaken by The Philippines only after China failed to do so. This fact, undercutting as it does Liu’s claim that the tribunal was ‘repaying a service’ rather than abiding by pre-established procedure, was likewise not publicised in the mainland Chinese media.

However, as the Caijing article rightly points out, China is clearly not the first great power to disregard a ruling by an international tribunal that was not to its liking. In 1984, the United States withdrew its consent for the International Court of Justice’s compulsory jurisdiction when it became clear that the ICJ would rule against it in a case brought by the Sandinista government of Nicaragua, with then-US ambassador to the UN Jeane Kirkpatrick famously referring to the ICJ as a ‘semi-legal, semi-juridical, semi-political body, which nations sometimes accept and sometimes don’t’. Kirkpatrick’s remark has been quoted in several media commentaries on China’s response to the arbitration tribunal and its ruling.

Where China does differ from the United States and other great powers is in its aggressive control of its domestic information environment, and in the effectiveness of this control in creating  domestic consensus around China’s foreign policy objectives. Narratives running counter to the official position on the South China Sea—namely, that China is mounting a principled, legally unimpeachable defense of its territorial rights in the face of a disingenuous foreign assault—are rigorously suppressed, as are the facts and analysis that might be used to develop them. In such an information environment, the widespread outcry sparked within China by the tribunal’s ruling is eminently understandable. Beijing has in the past shown itself willing to make foreign policy that flies in the face of nationalist objections. However, the extent to which the party-state apparatus has staked its domestic credibility on a hard line in the South China Sea, and the lengths to which it has proven it will to go to discredit countries and institutions impinging on its claims there, should give pause to those who might predict a softening in Beijing’s position at any point in the near term.

Notes

[1] Paul Gewirtz of Yale’s China Center provided an excellent overview of the legal questions surrounding The Philippines’ case, including its admissibility under UNCLOS, in a recent edition of the Brookings Institutions’s East Asia Policy Paper series: https://www.brookings.edu/wp-content/uploads/2016/07/Limits-of-Law-in-the-South-China-Sea-2.pdf

[2] For further reading on the different types of land features defined by
UNCLOS see this primer by the Center for Strategic and International Study’s Asia Maritime Transparency Initiative (AMTI): https://amti.csis.org/what-makes-an-island-land-reclamation-and-the-south-china-sea-arbitration/

[3] A thread on the ‘Diaoyu Islands Discussion Bar’ 钓鱼群岛吧 addressing the question “Why do people say The Philippines is a Monkey?” 为什么说菲律宾是猴子 on Baidu Tieba 百度贴吧 is one such example of this sort of discourse: http://tieba.baidu.com/p/2332548924. This post was the third result for a Chinese-language Google search for “Why is The Philippines a monkey?” (为什么菲律宾是猴子?) on September 12, 2016.

[4] The AMTI keeps a running track of the amount of land reclaimed in the SCS by all parties: https://amti.csis.org/island-tracker/. The Washington DC comparison was the author’s own calculation, based on a rectangle whose sides are 23rd Street NW, the National Mall, North Capitol Street, and W Street NW.

[5]  The Caijing article contains both these and other remarks by Vice Minister Liu.

[6] More information on the PCA’s long association with ad hoc UNCLOS arbitration can be found here: https://pca-cpa.org/en/services/arbitration-services/unclos/