Making a Mockery of International Law: The Arbitral Tribunal on the South China Sea Prepares the Way for War

A car is stolen. It’s a car that has been in the family for generations: picnics, road trips, weddings, funerals, accidents. There are pictures, memories, indelible life events. There is a huge robbery of the entire house, in the confusion, mayhem, and distraction, the car also disappears.

A few days later, a neighbor turns up with the car. The neighbor claims it’s their car. They say that they bought it–for a single dollar from someone, a Tomas, a well-known car thief, who is arrested. Alternatively, they say they found it on their property, and that they claimed it as their own, since it was on their property, and clearly abandoned.

The two parties disagree, but attempt to reach an agreement. They decide to negotiate amongst themselves, and are in the process of doing so, when a developer, a friend of the neighbor, with a racist eye on taking over the first person’s house, decides to sow some discord.

Why bother negotiating? He asks the neighbor. You will have to give something up. Why don’t you go to my friend’s shop over here–he’s an expert–and he can decide for you, who the owner is.

How will they do that, asks the neighbor?

They will find out who the car parts belong to. The rightful owner of the car parts is the owner.

The car parts, asks the neighbor? Isn’t the owner of the car, the owner of the car parts? How will determining the car parts help, asks the neighbor?

Yes, we’ll look at some very specific of parts of the car. The air in the tires, says the developer, with a sly wink.

The original owner smelling a foul odor, declines. The neighbor, now emboldened, decides to take it to the shop to determine the owner of the “parts”.

He pays for the assessment. The original owner objects, saying that the “expert” is not qualified to determine ownership, that there is nothing in his “expertise” that could allow him to make the determination, and that he has papers proving his ownership anyway.

The neighbor, with the prompting of the developer, goes ahead anyway.

The “expert”, looks at the tires, and determines that tires have been used on several cars and cannot be owned by any one person. He then sniffs the air in the tire on the car, examines the air in the tire, and then declares loudly that the air in the tires cannot generate a title of ownership to the original owner. The air does not belong to the first owner.

Therefore, by inference, the car cannot belong to the first owner.

The car therefore belongs to the person on whose property it was found.

The first owner, if they do not abide by this ruling, must be a criminal, and must abide by it or face global approbation and punishment.

At this point, the developer pulls out a gun, cocks it, and aims it in the owner’s face.

This in a nutshell, is the Court of Arbitration’s South China Sea ruling on the China-Philippines case.

The details are as follows.

The South China Sea, bordered by China, Taiwan, Philippines, Malaysia, Borneo is a vital geopolitical hub, sometimes compared to the Persian Gulf. Five trillion dollars worth of goods flow through the South China Sea annually, it’s the key traffic route for oil headed for China, and it is considered a resource rich area for oil and gas exploration, fishing, and mineral extraction. It’s also highly contested, in particular, the glittering multitude of small islands and shoals littering the inland sea. The Paracels, the Scarborough Shoals, the Spratlys. All six countries claim different portions and different islands in the area. Their claims bisect, trisect, quadrisect each other. To bolster their claims, all of the claimants have built up structures, airstrips, installations, and done reclamation work on the islands.

Xisha Islands (Paracels), South China Sea

Xisha Islands (Paracels), South China Sea

The key issue is over territorial sovereignty–who owns the islands–and by inference, the maritime rights accruing to them: the Paracels, the Spratlys, the Scarborough shoals, and other sundry reefs, shoals, islands.

The Chinese claim these islands back to the 2nd century BCE, to the Han Dynasty. They claim constant usage, fishing, habitation, travel, mapping of the Islands, intensifying from the Ming Dynasty onwards, and produce historical documents to that effect.

Other countries make other various historical claims: the Vietnamese claim usage from the 17th century onwards.

The Philippines claim that the lands were terra nullius–uninhabited land–and therefore belong to them, as they fall within their maritime Exclusive Economic Zone of 200nm. They also claim that Tomas Cloma, a businessman and adventurer discovered, and then claimed for himself these islands in the 1956, before selling them to the Filipino Government for a single dollar.

The Chinese see the area as a vital strategic chokepoint. With the US encircling it on all sides in the Pacific Pivot–bases, missiles, armies–to choke it off, subjugate it, militarily, economically, politically, it sees the necessity of keeping control of the corridor, of keeping its vital interests open, and they have started to build installations and resources, with potential geostrategic and military use. They want to keep control of the area, keep their options alive, as they are being strangled with bases, ships, missiles, patrols, war games, and a newly militarized Japan.

As the Philippines and the Chinese come to loggerheads about the islands, the Philippines, decide to take the Chinese to arbitration over the United Nations Convention on the Law of the Sea (UNCLOS), which both parties are a signatory to. They do so through the Boston-based white-shoe law firm–Foley Hoag, which has close ties to the US Military think tank, CSIS, one of the key architects and strategists of the Pacific Pivot, and one of the key power brokers in US foreign policy. There’s a problem though.

The Chinese don’t agree to arbitration, and arbitration requires the consent of both parties. The Chinese have signed an agreement with the Philippines–the 2002 ASEAN-China Declaration of Conduct for Parties in the South China Sea–that it will negotiate bilaterally between each party any territorial claims. The Chinese have also signaled, in 2006, that they will exclude disputes concerning maritime delimitation from UNCLOS’s 3rd party dispute settlement procedures. Article 298 states, “When signing or ratifying, or acceding to this convention, a state may declare in writing that it does not accept any one or more of the procedures provided for in Section 2 (Arbitration) with respect to a) a sea boundary dispute which is to be settled in accordance with a bilateral or multilateral agreement binding on both parties…etc.”. There is nothing unusual in this exclusion clause–30 other countries–including the UK, France, Australia, Spain, Italy, Canada– that are signatories to the UNCLOS have made similar declarations.

When Chinese do not agree to arbitration, which they have declared 10 years ago, that should be the end of the story: No agreement between parties, no arbitration, since arbitration only works if parties agree to it. End of story.

The Philippines, using Foley-Hoag, with a likely assist by the CSIS, strategize otherwise. This is part of the larger pattern of “lawfare”–hybrid, proxy warfare through legal, juridical means to delegitimate and demonize a target–for the Pacific Pivot, so they insist on taking China to the woodshed through the tribunal. They insist that the refusal to arbitrate signals a dispute that has to be adjudicated by the Ad hoc Arbitral tribunal. The tribunal, oh, so conveniently, gives itself the right to adjudicate the dispute, and taking “public comments” from the media, uses that as the Chinese argument in absentia. From then on the die is cast.

A far-right hawk, the Japanese politician–Shunji Yanai, the President of the International Tribunal on the Law of the Sea, clearly a supporter of the Pivot–and chair of Shinzo Abe’s committee to gut Japan’s peace constitution, appoints four “impartial” arbiters. The Philippines appoints the other. The Philippines pays for the whole damn thing, the arbiters, clerks, lawyers, xerox fees, coffee, tea, and juice. It’s a bought and paid-for arbitration, not a public international court of law. Politics doesn’t come cheap.

Fifteen “charges” are filed against the Chinese: these are carefully structured to delegitimate Chinese territorial claims, although the Ad hoc Tribunal has no authority–in fact the entire body of the UNCLOS–has no authority to adjudicate territorial claims whatsoever. Territorial sovereignty can only be determined by International Court of Justice–a legitimate UN Body–or through bilateral negotiations, and according to customary international law, not UNCLOS. UNCLOS has no authority whatsoever to make the judgment for the simple reason that “land sovereignty determines maritime rights”, and it has no authority to adjudicate land rights.

It’s also clear that of the 15 charges, few have been actually opposed by the Chinese, since they have never even been presented with them until the tribunal. The Ad hoc Arbitral Tribunal just doesn’t care.

The tribunal takes matters ass-backwards, using maritime rights to void land sovereignty claims. It’s fraudulent, and illegal, but who cares. It’s a land grab by other means, warfare by other means, a clever way of using a sea tribunal to delegitimate claims to land, and in doing so, discredit the entire Chinese nation.

For legal scholars out there, it’s actually a fiendishly clever little piece of legal sophistry, a rendering–or rather a sundering–of sovereignty by technicalities. The strategy lies in shoe-horning a complex issue issue of historical sovereignty and maritime delimitation between multiple states, onto the abstract technicalities of whether small shoals, reefs, outcroppings can generate certain maritime rights–either a 200 Exclusive Economic Zone, a 12 nautical mile exclusion zone, or simply a 500m safety zone. No honest tribunal with any ethics or jurisprudential standards would try to carve out and extract the issues in such a prejudicial, artificial, and contrived manner, nor try to resolve them in such a backwards approach. Features do not generate rights, States do, and without determining state sovereignty, it’s impossible to determine delimitation in the abstract. Furthermore, given that the Chinese have not actually made any specific (“granular”) opposition to Philippine claims, counterclaims have to be inferred and stitched together to even generate a pretext for a tribunal. It’s quite the Alice-in-Wonderland courtroom, hilarious if it were not so serious.

And so to no one’s surprise, but with very little actual reasoning or proof, the tribunal claims–as it was mandated–that no maritime rights are generated by the shoals, and therefore the Chinese have no historic rights to the South China Sea. In and of itself, these findings themselves are astonishing. If enforced, a half-dozen US island bases in the pacific (Midway, Wake, Marshalls) would be downgraded to tide markers around public oceans; and for that matter, the Netherlands, which would be normally submerged without walls, dykes, pumps, and human intervention would be part of Belgium. But logic be damned, and proof be damned. The livid Taiwanese government invites the arbiters to visit Itu Aba, one of the habitable islands downgraded by them to the status of a rock, but the craven arbiters refuse. Like Citizen’s United, or the Florida Vote decision, when politics is primary, and the geopolitical stakes rarified–the supremacy and continuity of Empire–the evidence of the senses can be discarded, and legal logic transformed into sad simpering prostitution to power.

The final “judgement” is claimed to be a “sweeping rebuke” of Chinese claims: there is no legal basis for claims to sovereignty, nor for the construction of islands in South China Sea. China has caused “irreparable harm to the marine environment”, endangered ships and people, interfered with fishing and oil exploration. It is bad, bad, bad. China must “reconsider its tactics or be labelled an international outlaw”. The ruling is “binding”.

The press fails to mention arbitral tribunal judgments are rarely if ever followed. Yet western media goes on a braying jag, shouting “international criminal!” from the battlements, towers, and marketplaces, “if you don’t follow the ruling!” “Lawless! Shameless! Deceitful!” a thousand right wing online trolls bray. They omit to mention that the rulings of the UNCLOS have no enforcement mechanism and are uniformly disregarded. 16 adjudications, and not one of them followed. Most recently, the British, who lost in their attempt to keep the Chagos Islanders from returning to Diego Garcia, in one of the most flagrant acts of depopulation and ethnic cleansing. The ruling scoffed at by the British. No matter. It’s okay when westerners do so, they follow the rule of law, even when they don’t. But these are Chinese, and by definition, they must be evil law breakers. The Chinese must learn to follow “the rule of law” otherwise they are international scofflaws”, and must be called to task. There are calls for military action to enforce and teach the recalcitrant Chinese a lesson. They can only learn at the end of a stick or a muzzle. No matter that the US is not even a signatory to the UNCLOS, repudiating not merely its judgements but the entire concept and apparatus of international judicial arbitration. A small detail, never mind what we do. The naughty Chinese must be taught a lesson in global civics, to follow a “rules-based” global order.

Of course, this is just legal warfare used to generate information warfare for the Pacific Pivot. It’s a legal tripwire, a good one, a tired old trick, a variation on the tricks used to depose and delegitimate competition or resistance to Empire everywhere. Find some pretext–a nicely legal one–trap them in a bind, break all the rules, find them guilty (of something–weapons of mass destruction, of murdering babies, of soiling coral reefs, of looking at the master’s wife, of trampling on the British flag–of anything), and shout up and down, until blue in the face, criminal, evil, outlaw. Punish. Discipline. Destroy. Above all, “catapult the propaganda” until something sticks. If they disagree, they must be guilty, and must be taught a lesson. War is a good lesson. War builds character, rights all wrongs, puts things back into place. Let this be the run up to war, a good one, a long time overdue for one to put them in their place.

The Chinese know a thing or two about war and about peace. 5000 years of history have schooled them to the sorrows of war, and seared in their bones the value of peace. If they move to war, they move reluctantly, hesitantly towards it: Every dynasty embroiders and carves its capitals, palaces and streets with calls and summons for peace: the gate of heavenly peace, gate of earthly peace, the long peace. A century and half of exploitation by colonial powers has taught them a thing or two about “global order” as well, its fickleness, brutality, venality, and treacherousness. They also know a few things about history, about justice, legalism and humanity.

Phillippe Sands, one of the hotshot Western lawyers for the Philippines in this case was once cautioned by John LeCarre: “A desk is a dangerous place from which to watch the world”. “A bench is a terrible place”, he could have added, “from which to engineer history”. Sands, Foley-Hoag, the arbitral judges, and the architects of the Pivot could learn a thing or two from the spymaster. Engineering a pretext for war is a terrible thing to do. To contrive so from a bench is unforgivable.

K.J. Noh is a long time activist, writer, and teacher. He is a member of Veterans for Peace and works on global justice issues. He can be reached at: Read other articles by K.J..