On July 12, an international tribunal in the Hague set up under the United Nations Convention on the Law of the Sea, is expected to deliver a long-awaited ruling on China’s actions in the South China Sea, where it has claimed ownership of a series of reefs and rocks in disputed territory, reclaiming many of them to build landing strips and islands. Reuters outlines the legal basis of the ruling:
The law under which the Philippines has made its claim is the UN’s Convention on the Law of the Sea, known as UNCLOS, which outlines what can be claimed from different geographic features such as islands and reefs. China is a signatory of the convention, one of the first international agreements it helped negotiate after joining the UN.
But Beijing says the issue is beyond the remit of UNCLOS and The Hague court because China has undisputable, historic rights and sovereignty over much of the South China Sea.
China’s claims are expressed on its maps as the so-called nine dash line, an ill-defined U-shaped demarcation drawn up after the defeat of Japan in World War II.
Manila’s case is based around 15 points that challenge the legality of China’s claims and its recent reclamations on seven disputed reefs in the fishing and energy rich region. [Source]
The Chinese government has already stated it will not abide by the tribunal’s decision, which is widely expected to rule in favor of the Philippines. Jane Perlez of The New York Times reports on how Beijing has responded so far:
For more than three years, China has refused to participate in the proceedings of an international tribunal considering a challenge to its expansive claims in the South China Sea, arguing that the panel has no jurisdiction to rule on the dispute with the Philippines.
But with a decision scheduled to be announced next week, Beijing seems to be getting nervous. In a show of strength, it kicked off a week of naval exercises in the South China Sea on Tuesday near the disputed Paracel Islands, where the Chinese military has installed surface-to-air missiles.
And in recent months, it has mounted an arduous campaign outside the courtroom to rebut the Philippines and undermine the tribunal, enlisting countries from Russia to Togo to support its claim to waters that include vital trade routes and may hold oil and other natural resources.
The flurry of activity is a sign of how much is at stake in what was once an obscure legal case before an obscure arbitration panel. The outcome could alter the dynamics of the South China Sea conflict, shifting it from a race to establish physical dominance over the waters to a conspicuous test of Beijing’s respect for international law and multilateral institutions. [Source]
In the South China Morning Post, M. Taylor Fravel analyzes the factors that will guide Beijing’s response:
Given these limits, the first factor that will shape China’s response is the content of the award. The Philippines asked the tribunal to rule on 15 unique submissions. As a result, the content of the award is likely to be mixed and complex, perhaps without definitive answers on some issues.
[…] The second factor shaping China’s response is how other states will respond. Under the Law of the Sea treaty, the judgment of arbitral proceedings is binding on the parties. This holds even if one party has chosen not to participate. At the same time, it is not enforceable.
[…] A third and final factor shaping China’s response is the regional diplomatic calendar. The Asean Regional Forum will be held later this month, while the East Asia Summit is in early September and the Asia-Pacific Economic Cooperation meeting in November. Land reclamation at Scarborough Shoal or establishment of an air defence identification zone in the South China Sea would guarantee that the disputes dominate regional discussions and likely increase security cooperation between the US and other claimants, an outcome China very much wants to avoid.
How China will actually respond to the tribunal’s award, of course, is uncertain. Apart from continued public diplomatic efforts to delegitimise the tribunal, whether China takes bold action on the waters of the South China Sea is likely to depend on the content of the award and how other stakeholders respond themselves, especially the Philippines and the US. [Source]
China would not be the first government to reject an international tribunal’s ruling—in 1986, the U.S. government rejected the findings of the International Court of Justice that ruled against the U.S. in a case brought by Nicaragua over American support for Contra rebels. As in that case, the current tribunal’s judgment would only be enforceable through international pressure, but even without enforcement could still damage China’s international standing. Paul Reichler, the lead lawyer for the Philippines who also represented Nicaragua in the earlier case, told the Wall Street Journal that the Nicaragua v. U.S. case marked a, “blemish on the U.S. moral posture and its ability to project itself as a promoter of a rules-based international order.” In an apparent effort to avoid a similar fate, Beijing is working to galvanize as much international support as possible for its position before the decision is announced.
Beijing authorities are trying to win support for their side through a propaganda arsenal that includes a diplomatic “charm offensive,” cute animated videos, and full page ads in foreign media that look deceptively like news reports:
(1/2) Beijing's two-page spread in Wall Street Journal on its position re: South China Sea, arbitration. pic.twitter.com/kw40aVaLqr
— Carl Minzner (@CarlMinzner) July 8, 2016
(2/2) Beijing's paid WSJ ad has comments, photos of US experts. Unclear if context accurate, permission obtained. pic.twitter.com/pF6j2X6Knq
— Carl Minzner (@CarlMinzner) July 8, 2016
— Dhruva Jaishankar (@d_jaishankar) July 7, 2016
CNBC’s Hailing Tan gives an overview of China’s propaganda efforts:
From official pronouncements to press editorials, China’s propaganda machine has gone into overdrive.
Most recently, state-run news agency Xinhua reported a call between Chinese foreign minister Wang Yi and U.S. secretary of state John Kerryon Wednesday during which Wang repeated China’s rejection of The Hague’s jurisdiction over the territorial claims.
The State Department confirmed the call, Reuters reported.
[…] That’s on top of numerous meetings with diplomats and journalists, as well as the lobbying individual countries—even those with no stake in the disputed territories including Belarus and Pakistan. [Source]
Reuters’ Greg Torode reports that China’s “propaganda overdrive” aims to send one message: that China will not accept the tribunal’s ruling. Part of that effort includes denouncing and belittling the tribunal itself, as the government has sought to do. From Steve Mollman at Quartz:
Last week state-controlled media ran articles describing the PCA as a “law-abusing tribunal” with “widely contested jurisdiction.” In May, senior diplomat Xu Hong said the tribunal of acted unjustly by taking up the case.
While promoting its own view on the South China Sea, official Chinese media are also lashing out at Western media’s coverage of the issue. Jesse Johnson at Japan Times reports on efforts to use English language publications and social media to promote China’s position while slamming foreign media for their reporting:
China has also criticized Western media for their coverage of the South China Sea dispute, claiming it is a U.S.-backed campaign designed to discredit Beijing while ignoring the lighthouses and meteorological forecast facilities that have been built by China for the “public good.”
“Uncle Sam and its friends are good at staging biased media publicity campaigns, confusing different concepts and applying double standards,” the official Xinhua News Agency said in a June 17 editorial. “The farce, led by the U.S. and supported by its allies, was intentioned to make China the scapegoat for the tense situation in the South China Sea region.” [Source]
Yet, these propaganda efforts seem so far to be bearing little fruit, as the example of the only Washington-based Chinese think tank shows. For Foreign Policy, Isaac Stone Fish reports on the Institute for China-American Studies (ICAS), whose scholars focus on the issues surrounding the South China Sea, but which has had very limited impact in getting its message out, for a variety of reasons:
And yet, Beijing has been mostly unsuccessful in building international support for its South China Sea claims. One reason is the perceived weakness of its legal case. Most experts, at least outside of China, seem to agree that the Permanent Court of Arbitration will rule in the Philippines favor. “China’s claim that it can legally ignore the pending arbitral award is not only wrong, it is legally insupportable,” Julian Ku, a professor of constitutional law at Hosftra University, wrote on the blog Lawfare. The other reason is Beijing’s misunderstanding of how U.S. public opinions and institutions work. Just as Beijing disparages Washington’s ignorance of China, the various parts of the Chinese system can be surprisingly daft in their understanding of U.S. institutions and the media ecosystem that surrounds them.
And that is the context in which ICAS — an organization whose main reason of existence is to attract attention, influence policymakers, and join the D.C. conversation — has had so little impact. Glaser, a senior adviser for Asia at the think tank Center for Strategic and International Studies (CSIS), doesn’t think it’s because they are spies — a plausible explanation for a Chinese organization that gathers and disseminates information. “Obviously people will suspect that they’re playing some intelligence role. But they’re not very aggressive,” she said. Rather, most of those interviewed for this story — roughly a dozen academics, think tank staff, and China watchers, the kind of people who traffic in acronyms and appreciate the intricacies of relevancy in Washington — have concluded that the problem is ineffectiveness.
ICAS, in other words, is not doing what a think tank should do: convening major events with respected scholars and politicians, publishing influential research, and challenging and improving government policy. Scholars say that their papers rarely get circulated, and they have not held a major event since their opening conference. “I wouldn’t say it’s a sophisticated operation at this stage,” said a member of the D.C. China policy community, who asked to speak anonymously because she wasn’t authorized to speak to the media. Jim McGann, the founder of the Think Tanks and Civil Societies Program at the University of Pennsylvania, which publishes an influential ranking of think tanks around the world, said ICAS seems “underfunded and not very well focused.” Even those more sympathetic to the idea of ICAS have been underwhelmed by its performance. “I’ve been a little surprised that it’s flown under the radar the way it has,” said one American South China Sea expert at a D.C. think tank, who asked to speak anonymously in order to not criticize ICAS on the record. “I figured this would be an enterprise we engage with, or fairly controversial; but it hasn’t moved the needle hard in either direction.” [Source]
[This post was corrected to clarify that the ruling was issued by a tribunal set up under UNCLOS, not by the Permanent Court of Arbitration.]