From Rappler (Apr 4):
China's strategy vs PH: Trial by publicity
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.
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)
CITING INT'L LAW.
Chinese Foreign Ministry spokesman Hong Lei says the Philippines' case is baseless. File
photo by AFP
China buys ad space
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.