China documentary: What's in store for Philippines, ASEAN? By: Prof. Jay L. Batongbacal

5/27/2018 China documentary: What's in store for Philippines, ASEAN? By: Prof. Jay L. Batongbacal

1/8

China documentary: What's in store

for Philippines, ASEAN?

By: Jay L. Batongbacal*

The stark contrast between China's diplomacy and its domestic publicity on the SouthChina Sea only serves to support, rather than blunt, the Philippines' case

In a few days, the Philippines is expected to file its Memorial with the Permanent Court ofArbitration that acts as the Registrar for the arbitration panel established under Annex VII of the1982 UN Convention on the Law of the Sea. The act represents the first major milestone eversince the Philippines launched its arbitration case against China over the disputes in the WestPhilippine Sea.

It is expected that the Memorial will contain an extensive treatment of the legal status of China'sclaim to sovereignty and exclusive jurisdiction over the entire South China Sea, represented bythe so-called Nine Dashed Lines map (9DL).

Among the main issues that must be squarely addressed is the nature of China's claims in theSouth China Sea, and the precise contours of sovereignty and jurisdiction which they claim tohave in the entire area.

For decades, China has implemented a policy of ambiguity with respect to these claims, not fullycommitting to any specific legal principles or uncontested factual circumstances to buttress itsposition. Even when it formally communicated the (9DL) to the international community for thevery first time in 2009 through a Note Verbale addressed to the United Nations, it maintained its

legal ambiguity through a clever play on words in describing its claims, saying that it only ...hasindisputable sovereignty over the islands in the South China Sea and the adjacent waters, andenjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed andsubsoil... Such a general phraseology actually can accommodate the system of maritime zonesdefined in UNCLOS, which recognizes sovereignty over land and the adjacent territorial sea,and sovereignt rights and jurisdiction over the EEZ and continental shelf. A subsequent NoteVerbale in 2011 again impliedly adopted the UNCLOS framework, by claiming that the SpratlyIslands group ...is fully entitled to Territorial Sea, Exclusive Economic Zone, and ContinentalShelf.

The policy of ambiguity was important for legal and diplomatic purposes.

First, it gave China plausible basis to assert that it was acting consistently with international law,including UNCLOS, and that the problem was only due to competing claims to sovereignty overislands that generated maritime zones. With this, China was able to maintain legally anddiplomatically that it was not necessarily claiming absolute sovereignty over the South ChinaSea.

This allowed China to avoid being seen as acting in violation of international law, particularlyfundamental principles of customary international law binding on all States, such as the principlethat no state can place areas of the high seas under its sovereignty.


2/8

High seas in this instance refer to the oceans beyond the territorial sea which the internationalcommunity universally holds to be no more than 12 nautical miles from its shores.

Second, it blunted direct and express criticism by the rest of the international community, andprobably prevented other States from making clear and unambiguous positions regardingChina's claims, since they could not precisely determine what China was claiming.

However, since 2009 China's policy of ambiguity has been eroded, not by the actions of otherstates, but by China itself through its maritime activities. Certain actions of China within theSouth China Sea were simply not consistent with the principle of giving due regard to the rightsof other states in the seas, such as the freedom of navigation, and recognition of the rights ofcoastal State rights to the 200 nautical miles EEZ and continental shelf adjacent to their shores.Its interference with the navigation of US Navy ships in the high seas, prevention of seismicsurveys of Vietnam and the Philippines in their own waters, and sending of law enforcementships to prevent the arrests of Chinese fishermen illegally fishing in the waters of Indonesia,Vietnam, and the Philippines could only be justified if China were claiming absolute sovereigntyover the entire area of the 9DL, not merely the maritime zones under UNCLOS.

Documentary ends policy of ambiguity

From the end of February, Western military and defense analysts have been abuzz over theboon of information revealed by China's state-run media. From December 24-31, 2013, China'sstate-owned television channel CCTV-4 ran an 8-part documentary, loosely translated intoJourney in the South China Sea.

The full series was eventually uploaded to the Internet (on both CCTV and Youtube) and hasreceived quite a bit of attention. It is clearly meant to enlighten the Chinese people aboutChina's interests in the South China Sea: it extolled the beauty and importance of the SouthChina Sea from the Chinese perspective and attempted to rally the Chinese people to supportthe government's policies.

But it also reveals much about China's civilian and paramilitary operations in this sensitivemaritime region. The documentary apparently hits the final nail in the coffin of the policy ofambiguity, and ominously presents what previously had been officially hidden from public view:China's intentions for the South China Sea, including all the littoral states around it.

Some episodes are particularly enlightening because they present and interpret, from China'sown perspective and through statements of its own officials, certain important events that tookplace in Vietnamese, Indonesian, and Malaysian, and Philippine waters. The documentaryobligingly illustrates China's viewpoint with with maps, geographic coordinates, and Englishsubtitles that leave little room for doubt as to China's intentions and plans for this entire maritimeregion. They also clearly demonstrate and in fact extol what China is quite willing and waiting to

do whenever they encounter ships and citizens of these countries even in their own waters.

Episode 4 reveals that China's Bureau of Fishery Adminitration was tasked with a top secretproject to build the installations on Mischief Reef in August 1994 for purpose of safeguardingChina's maritime sovereignty. The site was chosen because of its strategic location as a baseto supply and protect Chinese fishermen from foreigners, and is ominously presented as aniron rod which serves as a solid foundation to solve the South China Sea dispute. Thisinformation clashes with the official explanation given by Chinese diplomats at the time, whichdescribed that the installations were only fishermen's shelters in case of inclement weather.


3/8

The full extent of China's strategic investment in the Mischief Reef installation goes beyondeconomic and military, as Episode 5 showcases its human investment: one soldier has beenstationed on the isolated reef for the last 16 years. No wonder China argued back in 1999 thatthey needed to install satellite TV dishes on Mischief Reef in order to respect the human rightsof their soldiers stationed there.

Episode 8 showcases how far China's nominally civilian maritime agencies are willing to go inenforcing their maritime claims. It celebrates in great detail a glorious battle againstVietnamese civilian ships that took place on 29-30 June 2007, which began when Vietnamesenaval auxiliary ships (basically supply vessels) prevented China National Petroleum Corporationfrom conducting a seismic survey in waters west of the Paracel Islands, on the Vietnamesecontinental shelf. Although China portrays the Vietnamese as over 30 armed vessels, noarmaments can be seen mounted on either of the two Vietnamese vessels that were visiblyinvolved. China sent two of its civilian maritime law enforcement vessels to the area to repulsethe Vietnamese ships, to the point of actually ramming the Vietnamese upon orders of the ChinaState Oceanic Administration.

These offensive, and highly dangerous, maneuvers are seen by defense analysts, such as ScottBentley of the Australian Strategic Policy Institute in one article, as indicating that China maynow be promoting offensive operations. After all, as one Chinese official puts it, it is mucheasier to attack than to defend.

The 2007 incident is also significant because it took place at a time when Vietnam, together withthe Philippines, was still party to the now-defunct Joint Marine Seismic Undertaking (JMSU)which was hailed as a major step toward confidence-building in the region in step with the spiritof the 2002 Declaration of Conduct of Parties in the South China Sea. Prior to the broadcast ofthe documentary, practically no one knew that such a clash took place.

If the intention of the cover-up by both sides was to at least keep the peace, CCTV's revelation

seems to pointedly discard any pretensions that all was ever well between the two states underthose agreements.

Pressuring Indonesia, others

Although Indonesia has consistently held itself to be not party to the disputes in the South ChinaSea, China clearly considers the opposite to be untrue.

Episode 4 opens with a standoff that took place on May 12, 2010, in Indonesian waters west ofthe Natuna Islands, when a lone Indonesian frigate attempted to arrest a Chinese fishingvessel. Two Chinese maritime enforcement vessels arrived to protect the Chinese vessel,pressuring the Indonesian vessel to withdraw. In another article on the incident, Bentley sheds

light on the fact that the Indonesian vessel was actually a small fast patrol vessel with superiorlong-range weaponry that could have easily defeated the larger Chinese vessels' deck guns;however, its satellite communications had been jammed, and without instructions fromIndonesian command it wisely chose not to engage despite the fact that the Chinese wereillegally fishing well inside the Indonesian EEZ.

Like the 2007 incident with Vietnam, information about the 2010 standoff involving Indonesiahad been suppressed by both sides.


4/8

Indonesia, after all, had never considered itself as a party to the South China Sea disputes andprojected neutrality as the core of its foreign policy for the region. Keeping this and otherstandoffs under wraps (there were at least two others, in 2011 and 2013) was essential forIndonesia to maintain a diplomatic and moral high ground that enabled it to lead a decades-longeffort to seek and promote cooperative solutions for the South China Sea disputes.

But CCTV's revelation only brings home the point, quite bluntly, that Indonesia's efforts to act asa mediator to bridge the gap between ASEAN claimant states and China have had little or novalue. Observers question why China would discard its main friend in promoting cooperativeand negotiated solutions for the disputes.

The Philippines also features repeatedly in two episodes as the documentary refers to theScarborough Shoal standoff of May 2012 as a mere case of rescue of stranded fishermen,whom the Philippines had been purportedly seizing and arresting at the shoal since 1997. Itasserts the Chinese vessels had repeatedly confronted the Philippine fleets since April 2012,to safeguard fishermen and the maritime sovereignty of China.

In Episode 4, the documentary film crew gleefully raises Chinese flags over the small rock they

are precipitously perched upon, and point out where the two countries set previously up theirown signs and blew up the other's. It ends patriotically by praising the China's fishermen forgaining the South China Sea and the fishery administration for protecting the maritimesovereignty of China.

Even Malaysia, which has kept a low profile in these disputes all these decades, is pointedlytargeted by the documentary, when Episode 1 showcases the flag-raising ceremony in 29 April2013 over James Shoal, a little over 50 kilometers north of the coast of Sarawak. Even moreinteresting is the fact that the coordinates supplied appear to be outside the 9DL!

The rest of the documentary highlights China's interests in the key resources, particularly fishing(Episode 7), shipping (Episode 5), and seabed resources (Episode 6) such as minerals and

petroleum.

What China is willing to do

Interpersed throughout these episodes is China's imaginatively revisionist interpretation ofhistory through which it asserts the facts that underlie its claim of historic title or historic rightsto the South China Sea. Amid the rhetoric and nationalistic fervor with which the narrator, andunderstandably the subjects, of the documentary are brimming with, one gets a sense in nouncertain terms how China officially regards the South China Sea: an area of maritimesovereignty over which it presently claims and eventually seeks to exercise absolute control.

This is even accompanied by an unmistakeable attempt at patriotic symbolism, which shines

through the documentary exactly like the gigantic torch that the shape of the South China Seaand the land territory of China imaginatively form, as highlighted in Episode 1. From whateverangle, the viewer will get a very clear and vivid sense of what China has been and will be willingto do to enforce its will against other States in the region.

And it is clearly not directed against the Philippines only, but and and all other neighboringstates claiming any significant portion of the South China Sea's minute lands or vast waters.


5/8

Philippines-China arbitration and ASEAN

The fact that the documentary comes on the heels of the arbitration launched against China,and amid calls for a clarification of precise nature of Chinese claims to the South China Sea,has some very important implications.

First, as explained above, China's legal position on the South China Sea has for decades beenprotected by a policy of ambiguity that allowed it to dodge and sidestep accusations of acting orstanding opposed to contemporary international law. Through astute and carefully-crafteddiplomatic statements and communications such as the Note Verbale of 2009, China hasalways been able to arguably stay within the penumbra of plausible interpretations andapplications of UNCLOS. Such ambiguity would have been useful as a defensive shield againstthe Philippines' argument that China has been asserting sovereignty, rights, and jurisdictionsbeyond those permissible under international law.

Absolute sovereignty, particularly, is limited by UNCLOS to internal waters and the territorial seaextending 12 nautical miles from one's baselines, but all locations indicated in the documentarywhere Chinese maritime law enforcement are protecting maritime sovereignty are clearly

beyond this distance. And even though UNCLOS recognizes that fisheries and petroleum rightswithin the EEZ and continental shelf can pertain to both mainlands and islands of coastal states,the small islands and rocks within the South China Sea are not likely to receive suchentitlements, so only the mainlands of littoral States around the South China Sea can generatesuch zones.

China Central Television Channel 4 being a state-owned and state-run media outlet directlyunder the State Administration for Radio, Film, and Television, which in turn is under the StateCouncil of the People's Republic of China, a very plausible argument could be made thatJourney in the South China Sea expresses an official, public, and legally-attributable position.

Like a declaration against interest, it is definite proof of China's policy and position that the

South China Sea is not merely an area over which it claims only sovereignty over land andmaritime zones around them consistently with international law, but rather a zone of absolutesovereignty unattached to any land territory. And the repeated references to its revised historyestablishes the point that its claim is rooted in a concept of historic title to the seas, that wasflatly rejected in the over 30 years of multi-lateral negotiations that preceded UNCLOS.

This position definitely contravenes the general principles of customary international law, that nostate can place the high seas under its sovereignty and that la terre domine la mer (the landdominates the sea), basic principles that underlie the treaty framework of maritime zonesestablished by UNCLOS. In other words, the documentary could be presented and appreciatedas positive and indubitable proof of the fact that, as argued by the Philippines, China is claimingsovereignty, rights and jurisdictions in excess of that permissible in international law, marked by

events China has itself highlighted at the very periphery of the 9DL.

Second, China's most formidable argument against the Philippines' case have consistentlyrevolved around its objection that the relief sought by the Philippines require maritimedelimitations. All analyses of China's possible positions, whether from official statements of itsMinistry of Foreign Affairs, to commentaries by Taiwanese, Vietnamese, and other foreign policyscholars and advisors, including probable counter-arguments simulated by the Solicitor Generaland/or foreign counsel, have identified this as a keystone of China's hypothetical legal defence.


6/8

But such a defence depends fundamentally on the assumption that it concerns a maritimedelimitation under UNCLOS: there is no provision in UNCLOS for a delimitation betweenmaritime zones and such an expansive claim to historic title to the seas as that represented bythe 9DL.

Although UNCLOS and general international law recognize that history, equated with long

usage, may play a role in defining and establishing title, such recognition has been of limitedapplication. Historic title can refer only to land territories and not the seas; UNCLOSrecognizes only historic bays which are a very limited form of waters; and historic rights toresources refer only access to fisheries in another State's waters (e.g., the EEZ). In fact, thesystem of maritime zones under UNCLOS clearly evince that if history is regarded as anyindication of title, it can legitimately refer to no more than the internal waters within, andterritorial seas within 12 nautical miles beyond, a coastal State's baselines. Law of the Seascholars like Clive Simmons and Pierre Dupuy consistently view UNCLOS has havingintentionally and systematically restricted the concept of historic waters to only this very specificinstances, if not eliminated it altogether. The Philippines itself initially claimed historic watersunder the 1898 Treaty of Paris, 1900 Treaty of Washington, and 1930 US-UK Convention,during the initial discussions of the law of the sea back in the 1950s, but agreed to the package

deal under UNCLOS when it became clear that the international community would not accept it.

Third, Journey in the South China Sea actually could serve as the final wake-up call for ASEANand reinforce the groundwork for a unified position, even if only among the ASEAN claimantcountries (plus Indonesia), on the South China Sea. The documentary proudly explains whatChina is willing to do and intends to do in its future maritime enforcement. It actually and directlycontradicts the objective of China's recent good neighbourliness and friendship initiative in itsforeign policy, employed to successfully convince Vietnam, Malaysia, and Brunei to sign on topolitical declarations of cooperation and joint development. The CCTV documentary doesnothing to reinforce China's diplomacy, and in fact completely undermines it by unfortunatelyand perhaps unintentionally lending the latter a sense of duplicity.

China's assertions that it aims to develop in a way that does not negatively impact itsneighbours is plainly contradicted by the manner in which it portrays them as foreign invasive oraggressive forces with whom they engage in glorious battle, and against whom they haveproudly and deliberately directed, since 2007, a steadily increasing number of ever-moreforceful fishery protection missions that effectively deny them of their own EEZs andcontinental shelves at present, and can potentially shut them out of the South China Seaaltogether in the future.

There are already indications that aside from the Philippines and Vietnam, both Indonesia andMalaysia are subtly shifting policy vis-a-vis China on account of the latter's increasinglyassertive maritime posture. China's attempt to enhance its own maritime security is actuallycreating an opposite effect, as its outward maritime thrust causes the littoral States to seek help

from the only other major powers they can ask from, Japan and the United States, both of whomChina clearly distrusts and would much rather have pulling back rather than pushing in.

Taken separately, the potentially dangerous clashes at sea that Chinese maritime forces seemto be eager to engage in can actually form the basis of specific legal cases that could be filed bythe littoral States against China under UNCLOS Annex VII. Unless it changes its basic policy onthe South China Sea, China could actually find itself facing multiple legal challenges from all thelittoral States for its maritime behaviour coupled with provocative and legally problematic publicpositions such as those expressed in Journey in the South China Sea.


7/8

The unreachable star

When the initial broad outlines of the legal approach to China's actions were quietly proposedand debated among Philippine legal luminaries sometime back in 2011, it was already accepted

that it would be an uphill battle that would be fraught with many difficulties. But three years on,certain elements seem to have shifted and the dynamic and fluid situation in the South ChinaSea has again merit a re-examination of strategies and next-moves. There is still quite a bit ofuncertainty as to the future of the Philippines' cause when one considers the procedural andsubstantive details; but in terms of broad strokes there is room for optimism and at least someassurance that the Solicitor General and foreign counsel will certainly give it their best shot.

The stark contrast between China's diplomacy and its domestic publicity on the South ChinaSea only serves to support, rather than blunt, the Philippines' case.

Certainly, even the Philippines-China arbitration is not a magic bullet that will definitely solve theentirety of the complex maritime disputes that comprise the South China Sea; that remains the

veritable impossible dream until we witness a sea-change in all of the competing States' legal,political, and diplomatic positions. Most important is the need for a major upheaval in China'scurrent spirit: giving its people the benefit of the doubt, the differences in its policies andpositioning could also be interpreted as evidence of much deeper fissures in contemporaryChinese society.

China, after all, is not a monolithic super-State, but a delicately balanced conglomeration ofcontending social forces that increasingly press against the Communist Party's iron rule, itselfthe object of contesting internal political factions. One possible reason why China does not wantthe Philippine-China arbitration to proceed could be that it presents a danger not to its externalposition, but rather to its internal security: an open and uncontrolled discussion of the 9DL andall its intricacies and ramifications might be something that the Chinese government is simply

not yet prepared to rationally and effectively deal with, at a time when seething domesticdiscontent could be ignited by the smallest of sparks.

At present, the Chinese leadership is struggling to keep these forces in check, which isbecoming more and more difficult as the gap between rich and poor widens and the benefits ofrapid economic growth seem to be constrained to a smaller urbanized elite. This happens at atime when information is flowing more freely and uncontrollably, thus sowing or unearthing theseeds of discontent which, in a society of over 1.35 billion people, translates into truly seriousproblems of social cohesion.

Even as the next major milestone in the arbitration is passed in the next few days with the filingof its Memorial with the arbitral panel, the Philippines must necessarily brace for impact against

the potential backlash expected from China. Whether the Philippines wins or loses its case,China's actual intentions and future actions have been questioned by its own publicity, and itsactions speak much louder than its words.

It seems that in the coming months or years, the important question will increasingly turn fromwhat the Philippines will do next, to what will the other states in the region will do in light of howChina is changing and evolving in responding to regional challenges.


8/8

For better or for worse, the Philippine challenge is a symbolic leap of faith that might be exactlywhat's needed for those responses to be drawn. Sometimes, to reach for the unreachable staris precisely what one needs to do in order to spur any kind of change at all.

*The author is Assistant Professor, UP College of Law and Director, UP Institute for MaritimeAffairs and Law of the Sea. The opinion stated in this article are given in a personal capacityand do not represent the positions or opinions of the national government, or any of its officesand instrumentalities.

Source: http://www.rappler.com/thought-leaders/53897-china-documentary-philippines-asean

China documentary: What's in store for Philippines, ASEAN? By: Prof. Jay L. Batongbacal

Documents

Transcript of China documentary: What's in store for Philippines, ASEAN? By: Prof. Jay L. Batongbacal