China’s strategy vs PH: Trial by publicity

Paterno Esmaquel II
(UPDATED) Out of court, China wages 'legal warfare' against the Philippines
DAVID VS GOLIATH. A Chinese coast guard ship (top) and a Philippine supply boat engage in a standoff as the Philippine boat attempts to reach Ayungin Shoal, a reef claimed by both countries, on March 29, 2014. Photo by Jay Directo/AFP
MANILA, Philippines (UPDATED) – Even as it strongly criticized the Philippines for “hyping up” the West Philippine Sea (South China Sea) issue, China’s recent statements against its challenger show that it has taken the same tack by subjecting the Philippines to trial by publicity.

This legal but out-of-court battle against the Philippines becomes clearer days after the latter submitted a nearly 4,000-page written pleading against Beijing on Sunday, March 30. It sent the pleading, called a memorial, to an arbitral tribunal at the Permanent Court of Arbitration, which will hear the case filed in January 2013. 

China rejects this arbitration process but, as veteran China analyst Chito Sta Romana said, continues “to argue in their media and in their statements.”

“This effort appears to be aimed at influencing the outcome of the tribunal, as well as preparing the Chinese public and the international community for any eventuality,” Sta Romana said in a forum at the Asian Institute of Management on Wednesday, April 2.

A Filipino journalist who worked for more than 3 decades in China, Sta Romana explained: “What they’re trying to do is that on the one hand, they will not participate in the process. On the other hand, from the outside, they present their case, hoping to influence the arbitrators.”

China, he said, is ready for “legal warfare.”

“They’re trying to meet our legal arguments with legal arguments. In other words, this is not just a question of right and might; they are actually trying to meet the argument head on,” Sta Romana said.

In a nutshell, China argues that the arbitral tribunal has no right to hear the Philippines’ case. Its main arguments can be summarized this way:

  • The disputes between the Philippines and China involve land, which is not covered by the United Nations Convention on the Law of the Sea (UNCLOS), the basis of the Philippines’ case; and
  • The disputes involve the delimitation of maritime boundaries, over which it rejected arbitral proceedings in a declaration under UNCLOS in 2006

Speaking from a Filipino point-of-view, Sta Romana said: “Basically we say it’s a maritime dispute. If it’s waters, it should be under UNCLOS. The Chinese say, it involves land – islands – and therefore it’s a territorial dispute. And if it’s territorial, it cannot be under UNCLOS.” (READ: China rejects PH case, invokes int’l law

China buys ad space

CITING INT'L LAW. Chinese Foreign Ministry spokesman Hong Lei says the Philippines' case is baseless. File photo by AFP

To demolish the Philippines’ case, China has used a wide range of outlets.

In fact, even before Manila could publicize its pleading against Beijing, China sent the Philippine media on Thursday, April 3, a detailed 12-page position paper against the Philippines. The paper by Chinese Embassy spokesman Zhang Hua raises 10 points, including legal arguments, to support its claims over the West Philippine Sea.

China had this statement published, too, as a paid advertisement on the Philippine Star, a major newspaper. The Philippines’ Office of the President noted this paid advertisement Thursday.

Two days before this, on Tuesday, April 1, the Chinese Embassy in the Philippines also detailed its arguments in a media conference.

Immediately before and after the memorial was filed on Sunday, March 30, China  released two stinging statements against the Philippines.  

China uploaded these as standalone statements on its foreign ministry website. It only does this for topics especially important for the Chinese.

Book as ‘friend of court’

'FRIEND OF COURT.' Published in January 2014, this book aims to 'assist' the arbitral tribunal in the case filed by the Philippines. Photo courtesy of Hart Publishing, Oxford

Sta Romana provided two more examples.

In January 2013, he said, “two prominent Chinese legal scholars published an article in the American Journal of International Law.” The article, “The Nine-Dash Line in the South China Sea: History, Status, and Implications,” got published at around the same time the Philippines filed its case against China.

The journalist described one of the article’s authors, Zhiguo Gao, as a sitting judge of the International Tribunal for the Law of the Sea who advises top Chinese officials on maritime strategy.

In January this year, Sta Romana added, a book especially designed to “assist” the arbitral tribunal came out.

The book – The South China Sea Arbitration: A Chinese Perspective – “does not set out the official position of the Chinese government, but is rather to serve as a kind of amicus curiae brief, advancing possible legal arguments on behalf of the absent respondent,” its Amazon description said.

Amicus curiae” means “friend of the court,” a third party whom a court can consult.

“The book shows that there are insurmountable preliminary objections to the tribunal deciding the case on the merits, and that the tribunal would be well advised to refer the dispute back to the parties in order for them to reach a negotiated settlement,” said the description of the book edited by Stefan Talmon and Bing Bing Jia.

PH: ‘Nothing to add’

In the face of China’s legal arsenal, the Philippines, on other hand, cannot yet publicize its memorial. It is waiting for the arbitral tribunal’s go-signal.

The Philippines however rebuked China on Friday, April 4, for its aggressive behavior in the West Philippine Sea.

“Countries should be judged by their actions, not by their words,” Philippine Foreign Secretary Albert del Rosario said in a rare statement. 

Before this, the most that the Philippines had said was a 600-word statement – as opposed to China’s 7,200 words through various outlets.

Delivered by Philippine Foreign Secretary Albert del Rosario, it contained a few details about the Philippines’ pleading as well as a litany of reasons why the Philippines filed its case. For one, Del Rosario said, “It is about securing our children’s future.”  

More details could be found in the Philippines’ Notification and Statement of Claim, filed in 2013. In this document, the Philippines said it requests the court to do the following, among others:

  • to invalidate China’s expansive claim over the West Philippine Sea as contrary to UNCLOS;
  • to declare areas such as Panatag (Scarborough) Shoal as submerged features, not islands as claimed by China;
  • to stop China from preventing Filipinos to fish in Philippine waters; and
  • to tell China to desist from “unlawful activities” within Philippine waters

HISTORIC PLEADING. Foreign Secretary Albert del Rosario (left) and Solicitor General Francis Jardeleza (right) hold a media briefing after the Philippines sent its nearly 4,000-page memorial against China. Photo by Jose Del/Rappler

On Monday, March 31, Philippine President Benigno Aquino III explained: “We are not here to challenge China, to provoke them into any action, but I do believe that they should recognize we have the right to defend our own interests.”

China, for its part, released another statement against the Philippines on Monday. Sought for a statement on this, DFA spokesman Charles Jose told Rappler: “The President has already spoken on this. We have nothing more to add.”

For the Philippines, its historic case against China speaks for itself. – Rappler.com

Paterno Esmaquel II

Paterno R. Esmaquel II, news editor of Rappler, specializes in covering religion and foreign affairs. He obtained his MA Journalism degree from Ateneo and later finished MSc Asian Studies (Religions in Plural Societies) at RSIS, Singapore. For story ideas or feedback, email him at pat.esmaquel@rappler.com.