South China Sea-International Tribunal rules in favour of Philippines


July 12, 2016

South China Sea-International Tribunal rules in favour of Philippines

https://www.washingtonpost.com

Crew members of China’s South Sea Fleet taking part in a drill in the Xisha Islands, or the Paracel Islands in the South China Sea in May. (Str/AFP/Getty Images)

An international tribunal has ruled that China does not have historic rights to justify its expansive claims to the South China Sea, in a major blow to Beijing.

China has repeatedly made it clear it will not accept, recognize nor implement Tuesday’s ruling on the South China Sea, the hotly contested waterway that contains some of the world’s busiest shipping routes. But the verdict, which came in strongly in favor of the Philippines and against China, will nevertheless undermine its claim to sovereignty under the nine-dash line which it draws around most of the South China Sea.

The tribunal ruled that “there was no legal basis for China to claim historic rights to resources … within the sea areas falling within the ‘nine-dash line’.”

In a statement, the Philippines’ Secretary of Foreign Affairs welcomed the ruling, calling it a “milestone,” but urging “restraint and sobriety” among all concerned.

“The verdict is the best case scenario that few thought possible,” said Richard Javad Heydarian, an Assistant Professor of Political Science at Manila’s De La Salle University.

“It is a clean sweep for the Philippines, with the tribunal rejecting China’s nine-dashed line and historical rights claim as well as censuring its aggressive activities in the area and, among others, the ecological damage caused by its reclamation activity.”

Hours before the verdict was announced, China repeated its rejection of the tribunal’s jurisdiction.

“The so-called arbitration tribunal, from the very beginning, was established on the basis of illegal behaviors and appeals of the Philippines,” Chinese Foreign Ministry spokesman Lu Kang told a news conference before the ruling came out. “Its existence does not have legitimacy. Any ruling it might make will be illegal and invalid.”

The tribunal was never going to completely resolve the dispute over maritime sovereignty. But the strong ruling could inflame regional tensions, and whether it leads to more friction between China and the United States.

The Philippines took China to the Permanent Court of Arbitration (PCA) in the Hague in January 2013 after the Chinese navy seized control of Scarborough Shoal, a largely submerged chain of reefs and rocks set amid rich fishing grounds off the main Philippine island of Luzon.

The United States has been leading international calls for China to respect the tribunal’s decision, and the issue has become a key test of its ability to maintain its leading role in Asian security in the face of China’s rising power.

The Philippines took China to the Permanent Court of Arbitration (PCA) in the Hague in January 2013 after the Chinese navy seized control of Scarborough Shoal, a largely submerged chain of reefs and rocks set amid rich fishing grounds off the main Philippine island of Luzon.

The United States has been leading international calls for China to respect the tribunal’s decision, and the issue has become a key test of its ability to maintain its leading role in Asian security in the face of China’s rising power.

Beijing has refused to participate in the arbitration process, and instead launched a global propaganda campaign to make its case. Foreign Minister Wang Yi was quoted as telling his counterpart John Kerry last week the process was a “farce,” while his ministry says you have to be delusional to think China will bow to diplomatic pressure to accept the ruling.

Some $5 trillion in commerce, roughly one third of global trade, flow through the waters of the South China Sea every year, while its fisheries account for 12 percent of the global catch and significant oil and gas reserves are thought to exist under the sea floor. Yet the waters are some of the most fiercely disputed in the world, with claims to various parts staked by Brunei, China, Malaysia, the Philippines, Vietnam and Taiwan.

China’s nine-dash line, a version of which first appeared on its maps in 1947, loops through the vast majority of the South China Sea, and Beijing uses it to claim sovereignty over almost all the islands, reefs and rocks in the South China Sea.

Beijing says its sovereignty claims date back hundreds of years and are “indisputable.” In the past two years it has undertaken a massive land reclamation process in the sea, turning seven reefs and rocks into nascent military outposts, with several airstrips and radar installations under construction.

But the tribunal also backed the Philippines submission that none of those features are islands — as defined by the 1982 United Nations Convention on the Law of the Sea ( UNCLOS).

Only natural (rather than artificially constructed) islands that can sustain human habitation qualify for both 12-nautical miles of territorial waters and 200-nautical mile Exclusive Economic Zones (EEZs) under UNCLOS.In other words, the ruling drastically undermines China’s claim to the waters surrounding the island bases it is in the process of building.

China says the tribunal lacked the jurisdiction to rule on Manila’s various submissions, and says it has abused its powers.

In Washington last week, former senior official Dai Bingguo derided the ruling as “nothing more than a scrap of paper,” a refrain eagerly echoed by state media here. China also argues that the Philippines had previously agreed to resolve the dispute bilaterally.

But its legal case is undermined by a key provision in UNCLOS, which states that the tribunal alone can decide if it has the jurisdiction to rule on issues before it. In October last year, the tribunal decided it indeed had jurisdiction to rule on several key issues brought by Manila. The tribunal’s decision is legally binding, but it lacks any mechanism to enforce its rulings.

In rejecting the decision, Beijing is certainly not alone. No permanent member of the U.N. Security Council has ever complied with a ruling by the PCA on the Law of the Sea, wrote Graham Allison, Director of the Harvard Kennedy School’s Belfer Center for Science and International Affairs. “In fact, none of the five permanent members of the UN Security Council have ever accepted any international court’s ruling when (in their view) it infringed on their sovereignty or national security interests, Allison wrote in The Diplomat.

The United States has never ratified UNCLOS, and rejected a 1980 verdict at the International Court of Justice ordering it to pay reparations to Nicaragua for mining its harbors, he noted.

Chinese Foreign Ministry spokesman Lu accused the United States of “using international law when it favors itself while discarding it when it does not.”

Chinese Foreign Ministry spokesman Lu accused the United States of “using international law when it favors itself while discarding it when it does not.”

Nevertheless, the case is an important indication of China’s willingness to submit itself to international law as its clout grows, and a sign of what kind of global power it wants to become.

Despite its efforts to dismiss and discredit the process, Beijing was certainly far from indifferent about the result, analysts said.What happens next will depend on how the key players — China, the Philippines and the U.S. — react.

The United States has already conducted several “freedom of navigation” exercises in the South China Sea, sending warships within 12 nautical miles of islands, reefs and rocks controlled by China and other claimants. It is also rebuilding military ties with the Philippines. China cites this as evidence that it is President Obama’s actions — not its island-building – that are responsible for militarizing the region.

Last week, the U.S. Navy said it had also sent destroyers to patrol close to some of the islands and reefs held by China, although those ships stayed just outside the 12-nautical-mile zone. Washington might decide to step up its patrols after the ruling.

China, meanwhile, could attempt to reinforce its de facto control by declaring an Air Defense Identification Zone over the South China Sea, under which any incoming aircraft would supposedly have to first declare their presence to Chinese authorities. Another option might be to build a new military base on Scarborough Shoal.

“If China declares an air defense identification zone in the South China Sea, the U.S. is likely to challenge it with military fly-bys,” Yanmie Xie and Tom Johnston of the International Crisis Group wrote before the decision was announced. “If the U.S. conducts more frequent and higher profile freedom of navigation patrols near Chinese-held reefs, Beijing may feel compelled to intercept or even evict U.S. vessels. The risk of military clashes is small but cannot be ruled out.”

Yet there are also good reasons for all sides to react cautiously.China hosts a summit of the Group of 20 major economies in September, and is unlikely to want the meeting to take place amid an intense row over the South China Sea.

It is also likely to want time to gauge the reaction from Manila, where newly elected President Rodrigo Duterte has sent mixed signals over the issue.

Early in his presidential campaign, Duterte, a long-time mayor with limited foreign policy experience, implied he might be willing to soften his stance on China in return for Chinese infrastructure spending. Later, in a play to nationalist sentiment, he promised to ride a Jetski to Scarborough Shoal to plant the Philippine flag.

Since his inauguration, he has struck a more cautious tone. His challenge will be to appear strong at home to satisfy national pride, without needlessly angering Beijing.

Gu Jinglu, Xu Yangjingjing and Xu Jing in Beijing and Michael Goe Delizo in Manila contributed to this report.

China and UNCLOS: An Inconvenient History


July 12, 2016

China and UNCLOS: An Inconvenient History

The rising tensions in South China Sea, especially the arbitration lawsuit brought by the Philippines, have stimulated debate and research about China’s South China Sea policy, as well as about the United Nations Convention on the Law of the Sea (UNCLOS). For Beijing, the South China Sea dispute is essentially a dilemma with UNCLOS, which the PRC took part in negotiating from 1973 to 1982, and ratified in 1996. Officially the government stands by its determination to abide by the convention it signed and ratified. But there has been more and more discussion in recent years about the question of whether China should withdraw from UNCLOS.

It took nine years from 1973 for the international community to finalize the United Nations conference that finally agreed on UNCLOS in 1982. For the PRC, this was its first multilateral negotiation after having joined the UN in 1971. Some recent Chinese accounts shed new light on the Chinese delegation’s state of mind at the time. One important source is the memoirs of the head of the Chinese delegation, Ling Qing, who later became Deputy Secretary-General of the UN. An interview with the two deputy heads of the Chinese delegation by a major news magazine in 2012 also provides important additional information.

All of these sources paint the same picture: In 1973 when negotiations began, China was still in the throes of the Cultural Revolution, so the Chinese delegation was given three guidelines by the leadership: be anti-hegemony (meaning anti-U.S. and anti-USSR); support the Third World; protect the national interest. They thus put ideology before interest. This was common at the time. Moreover, China was grateful for the support it got from the Third World countries, which had played an important role in deciding to let the PRC take over China’s membership in the UN from the Kuomintang government on Taiwan in 1971. Beijing believed it should support the Third World in return.

Some leading developing countries in Latin America and Africa were calling for a 50–200 nautical mile (nm) territorial sea under full national sovereignty. Those countries lacked the capabilities of developed countries, especially superpowers like the United States and USSR, to protect their waters from being exploited by others. And the U.S. and USSR tried hard to limit weaker states’ maritime rights by reducing the size of the territorial sea and Exclusive Economic Zone (EEZ). The Chinese delegation saw things from the perspective of a class struggle between the hegemonic and Third World countries.

Ling Qing recalls how China eventually decided to stand with the Third World countries and supported the demand for a 200 nm EEZ, even though there were already internal discussions in the late stage of the negotiation as some Chinese had realized that a 200 nm EEZ may not belong to China’s national interest.

A book by Liu Feng, former Vice President of the National Institute for South China Sea Studies, sees China as the big loser in UNCLOS due to its unfavorable geographic location. In the past, China’s geographic narratives used to emphasize its advantage in possessing a vast territory. Official geography textbooks for primary and middle schools proudly cited China’s long boundaries and coastlines, and bountiful natural resources.

Only recently has it been fully realized that in spite of its 18,000 kilometer coastline, China’s geography actually inhibits the realization of its maritime ambitions. There are several main geographic disadvantages: It is open to seas but not oceans and China’s maritime space lacks breadth. Even though China borders four seas — the Bohai Sea, Yellow Sea, East China Sea, and South China Sea — all of them are enclosed by island states. This means that China has to share its maritime space with other countries. While the South China Sea offers more space, it is enclosed by nations making big sovereignty claims. The book argues that the 200 nm EEZ rule agreed upon in UNCLOS greatly restrains China’s maritime space.

China’s dilemma with UNCLOS is embodied in the arbitration case initiated by the Philippines. From China’s participation in the negotiation of UNCLOS in the 1970s to its decision to not participate in the arbitration case in 2014, over 40 years have gone by, and in that time China has experienced a tremendous transformation. Forty years is a good period of time for people to review the real implications and consequences of an important international negotiation.

China’s negotiation of UNCLOS provides a good case study to understand China’s foreign policy making and its attitude toward international law and international treaties.

Zheng Wang is the Director of the Center for Peace and Conflict Studies in the School of Diplomacy and International Relations at Seton Hall University in New Jersey. He is also a Carnegie Fellow at New America and a Global Fellow at the Kissinger Institute on China and the United States of the Woodrow Wilson International Center for Scholars.

A Storm over the South China Sea


July 11, 2016

A Storm over the South China Sea

by Rear Admiral (rtd) K. Thanabalasingham

http://www.malaysiakini.com

Image: China’s continued military build up on contested islands in South China Sea is boosting risk of conflict

COMMENT: I have followed closely the developments over the South China Sea (SCS) in the first half of this year and feel that things are not moving in the right direction. For starters, China has strengthened, militarised and fortified its positions in various locations of the SCS and is continuing the process.

Malaysia’s First Rear Admiral K. Thanabalasingham

China’s installation of the HQ-9 surface-to-air missile system and radars in the Paracel Islands and its fortification of positions elsewhere, like in the artificial island it has created from a shoal/reef in the Spratly Islands, have contributed to increased tensions in the region.

The arrivals and departures of Chinese military aircraft from this island have further aggravated the situation. China is also conducting naval exercises and manoeuvres, while last week a Chinese daily stated in an editorial that China must prepare for “military confrontation” in the SCS.

China has conducted exercises with its fishing fleets with a view to robust defence of its vessels to avoid arrest and detention by foreign forces. The six claimant states in the SCS, namely Brunei, China, Malaysia, the Philippines, Taiwan and Vietnam, all have overlapping claims but very recently a new dispute has arisen between China and Indonesia over Natuna Island’s territorial and EEZ (exclusive economic zone) waters.

A number of incidents have occurred in the island’s waters between Chinese fishing vessels and Indonesian patrol vessels. China’s contentious nine-dash-line claim has soured feelings between China and the Asean claimant states and Indonesia.

The problem with China’s nine-dash-line claim (a U-shaped boundary that loops down from Taiwan as far as Indonesia’s Natuna Islands) is that it completely ignores the legitimate claims of the coastal states under the United Nations Convention on the Law of the Sea (Unclos).

China has ratified Unclos, but with certain specific reservations by which it expects exemption from certain decisions or rulings by some authorities. Furthermore, China is claiming 12 nautical-mile territorial waters around its artificial island, which is contrary to Unclos.

US-China bone of contentention

An artificial island has no rights, according to Unclos. This has become a bone of contention between the United States and China. I do not wish to dwell too much on the ongoing spat between super-power rivals in the SCS.

The US disputes China’s nine-dash-line claim because the US says it has the freedom of navigation in the sea and air over all international waters and air spaces. On this issue I must say that I have not come across anywhere where China has stated that freedom of navigation will be hindered or denied.

China is very business-minded and it would not be in its interest to restrict or prevent freedom of navigation. However, we now have to wait and see what China does in the future, especially after the Arbitration Court’s ruling.

In June this year, a meeting took place in China between Chinese and the ASEAN Foreign Ministers. At the end of the meeting the ASEAN bloc issued a strongly- worded statement on ASEAN’s concerns over recent developments in the SCS region due to China’s activities.

Within 24 hours ASEAN withdrew the statement, with the explanation that each member nation would issue its own statement. It would be difficult for all 10 ASEAN members to issue a strongly-worded and unified statement on China’s actions in the SCS.

It is easier for the ASEAN claimant states and several others to have a unified and common stand. In the case of Myanmar, Laos and Cambodia, they have had long-standing economic and trade ties with China, which has invested heavily in these countries. Some of these countries, if not all, would not want to jeopardise their trade and investment links. Hence China still has leverage.

Taiwan’s claim in the SCS is almost identical to China’s. However, Taiwan has taken a different approach by proposing the SCS Peace Initiative, whereby all parties shelve their maritime disputes, abide by Unclos and explore joint development of maritime resources.

Regrettably, I do not see this proposal making any headway without China’s participation and concurrence. The majority of the countries of the world have accepted the One-China policy.

The anticipated ruling by the UN Permanent Court of Arbitration at The Hague on July 12 (tomorrow) on the Philippines’ claim against China will no doubt create further tensions, whether the ruling is in Philippines’ favour or not.

China has repeatedly stated that it does not recognise this court’s jurisdiction and will therefore not abide by its decision. A decision in Philippines’ favour could possibly worsen tensions and cause other repercussions. Will the other ASEAN claimant states resort to the same measure as the Philippines? Currently an air of uncertainty prevails over the SCS.


K THANABALASINGAM is Rear Admiral (Rtd) and he was the first Malaysian to take over as Chief of the Royal Malaysian Navy (RMN).

INDIA: Modi’s Personal Diplomacy at Work


July 10, 2016

INDIA: Modi’s Personal Diplomacy at Work

by KC Singh*

India needs to reconsider geo-political fault lines, history

PRIME Minister Narendra Modi, after two years in office, finally gave a calibrated television interview to a fawning anchor. The PM’s remarks on foreign policy give an insight into his thinking. Undoubtedly, China blocking India’s entry into the Nuclear Suppliers Group (NSG), despite his personal intervention with Chinese President Xi Jinping at Tashkent, was in his thoughts.

Three interlocking comments are noteworthy. First, that the Cold War bipolarity is over. Hence, it was level playing field and India was free to engage the entire global community. Finally, the PM — on his globe-trotting — postulated that as the world came to know “Modi” (referring to himself in the third person), they would perforce be drawn to India. He, naturally, did not mention that he was also bolstering his own image dented by past visa denials.

This strategic perception of the world derives from the Sanskrit phrase Vasudhaiva kutumbakam — the world is one family. While Modi is historically right that the Cold War ended in the early 1990s with the Soviet Union’s collapse, but the new bipolarity between a relatively weaker US and an ascendant China is already upon us. However, while berating Pakistan, he seemed reticent on China. Whether this is dissimulation to avoid open confrontation and calibrated counter-measures, which may follow, or Nehruvian self-delusion, only time will tell.

Rebonding: Mozambique is on the PM’s four-nation African tour, beginning July 7.

Global outreach, as a novel Modi doctrine, ignores history. The developing world, particularly Africa, has always welcomed India because of the relentless Indian support to de-colonisation post-Indian Independence, at the UN. Despite periodic foreign exchange paucity, India maintained training and development assistance to African countries. India joining the Commonwealth led other nations gaining independence from Britain doing likewise. Nonalignment was a quest for the developing world as a family. More recently, Indian lines of credit, grants and training slots to Africa were incrementally enhanced during the UPA rule, as two India-Africa summits were held to bolster ties.

PM Modi’s four-nation African tour from July 7, covering prominent east-coast nations — Mozambique, South Africa, Tanzania and Kenya — builds on this past legacy. It also supplements visits by the President and Vice-President earlier to West and North Africa, respectively. While India has traded with East Africa since time immemorial, the British took Indian workers to run their African colonies from which have spawned the diaspora and the modern links. The five-nation East African Community, founded in 2000 to coordinate infrastructure development, is an East African success story.

The China factor lingers whenever India engages Africa. Deep pockets and hunger for resources during the early part of this century, when Chinese economy was growing at double- digit rate, pales the Indian presence. In 2014, while the China-Africa trade was $200 billion, India’s languished at $70 billion. Indian investments are also $35 billion, considerably below China’s. However, two factors now favour India. One, the Chinese use of its own labour to extract resources with unseemly hurry has created a backlash and is seen as exploitative. Two, the slowdown of the Chinese economy — growing, many believe, well below the target rate of 7.5 per cent — presents India an opportunity, as commodity exporting countries are in recession. The US shale gas revolution has also affected gas exporting nations like Mozambique. Between 2010 and 2014, African countries growing at 6 per cent, or more, fell from 25 to 12, and those with low inflation being only six. Three of them are EAC members. Kenya, with its pro-West tilt, was always an exception to the warm India-Africa ties. However, with a new dynamic President, Uhuru Kenyatta, it is perhaps ready to embrace India.

Africa also can be critical for food security, with 600 million hectares of arable uncultivated land, constituting 60 per cent of the global total, making it tomorrow’s granary for a growing population in the developing world. Even in 1950-60, the then Raja of Faridkot applied for permission to acquire land in Ethiopia, ruled by the then Emperor Haile Selassie. In the period 2000-11, 948 land deals for 124 million hectares were registered; among buyers are rich Gulf states. But land can be an emotive issue and there are reports of local ire over the diversion of water, exploitation of labour, etc. In Africa, only 5 per cent of cultivated land is irrigated, compared to 41 per cent in Asia. There would also be the element of security as many of these states have weak institutions.

The Modi doctrine of personalised diplomacy will flounder, as in the case of NSG, if it ignores geo-political fault lines, or the emerging balance of the power game between China and the US, or, indeed, lessons of history. It can be a useful adjunct to a grand strategy in a de-globalising world. President George W Bush erred in 2001 when he declared on meeting Russian President Putin that he found him trustworthy as he “got a sense of his soul”. A Soviet expert would have told him that former KGB agents do not let their souls interfere with realpolitik.

The Cabinet rejig presents an unintended irony in the Ministry of External Affairs created by again personal chemistry trumping objective analysis. Minister of State Gen VK Singh (retd) — persistently advocating honouring of Maharana Pratap, routed in the Battle of Haldighat by Emperor Akbar’s forces — now faces another Akbar, MJ, perhaps wresting the Gulf and West Asia from him. Modi thereby succumbs to the fallacy that a Muslim is best to deal with the Islamic world, a Congress-perpetrated myth which PM Vajpayee rejected. Do the P5 members of the UNSC even send Muslim envoys to Islamic nations? It was Jaswant Singh, as External Affairs Minister, who struck a vital equation with the then Saudi Crown Prince Abdullah, laying the foundation of the present close engagement.

Resting foreign policy on seeking universal goodwill through personal diplomacy is not a strategy in a world with assertive China, diabolical radical Islam and anti-globalisation and free trade virus in the veins of Europe and the US. Henry Kissinger, in a 1963 critique of the Kennedy administration, wrote that they ran a “government by improvisation and manipulation”. He added their government lacked strategic clarity in “a period of revolutionary change”. He had Vietnam in mind. It sums up the Indian dilemma today. Hopefully, now that the PM is at spring cleaning, seeking a tangible strategy comes next.

*The writer is a former Secretary, Ministry of External Affairs

http://www.tribuneindia.com/news/comment/personal-diplomacy-at-work/262038.html

South China Sea: China reminds The United States not to take sides


July 7. 2016

South China Sea: China reminds The United States not to take sides

by David Brunnstrom, Reuters

 

FILE - In this April 28, 2016, file photo, China's Foreign Minister Wang Yi speaks during a foreign ministers' meeting of the Conference on Interaction and Confidence Building Measures in Asia (CICA) in Beijing.

© AP Photo/Mark Schiefelbein) FILE – In this April 28, 2016, file photo, China’s Foreign Minister Wang Yi speaks during a foreign ministers’ meeting of the Conference on Interaction and Confidence Building…

China’s Foreign Minister spoke with U.S. Secretary of State John Kerry by telephone on Wednesday ahead of a key international court ruling on China’s South China Sea claims and warned Washington against moves that infringe on China’s sovereignty, Beijing’s official Xinhua news agency reported.

Xinhua said Wang Yi repeated China’s rejection of the jurisdiction of the International Court of Arbitration in a case the Philippines has brought against China’s claims to nearly all of the South China Sea, calling it a “farce” that should come to an end.

The court, based in The Hague, is due to give its ruling on Tuesday, raising fears of confrontation in the region. U.S. officials say the U.S. response should China stick to its vow to ignore the ruling could include stepped up freedom-of-navigation patrols close to Chinese claimed islands in what is one of the world’s business trade routes.

In the call initiated by Kerry, Wang “urged the United States to honor its commitment to not to take sides on issues related to sovereign disputes, to be prudent with its actions and words, and not to take any actions that infringe upon the sovereignty and security interests of China,” Xinhua said.

Wang said that regardless of the tribunal’s ruling, China would “firmly safeguard its own territorial sovereignty and legitimate maritime rights and firmly safeguard the peace and stability,” it said.

Wang also said that relations between China and the United States were generally on a sound track and that the two sides should further focus on cooperation while properly managing their differences.

The U.S. State Department confirmed that Kerry had spoken by phone to Wang.

“The two discussed issues of mutual interest. We are not going to get into the details on this private diplomatic conversation,” State Department spokeswoman Gabrielle Price said.

China has been angered by U.S. patrols in the South China Sea in recent months and on Tuesday launched what the Defense Ministry termed “routine” military drills there.

On Tuesday, Beijing sought to downplay fears of conflict in the South China Sea after an influential state-run newspaper said Beijing should prepare for military confrontation.

U.S. officials say they fear China may respond to the ruling from The Hague by declaring an air defense identification zone in the South China Sea, as it did in the East China Sea in 2013, and by stepping up its building and fortification of artificial islands.

(Reporting by David Brunnstrom; Editing by Sandra Maler)

 

China’s South China Sea Diplomacy: Some Lessons from Africa


Washington DC

June 29, 2016

The Diplomat

China’s South China Sea Diplomacy: Some Lessons from Africa

China has been actively seeking international support for its position that the South China Sea dispute with the Philippines should be resolved exclusively by negotiations among the parties directly concerned and thus should not have been submitted to arbitration. Among the 40 states that support China are several African countries, including Burundi, Mozambique, Niger, and Togo. China is also seeking the support of Cameroon, Côte d’Ivoire, and Senegal. Beijing believes that China and Africa should support each other on issues concerning their vital interests, since they had all been “victims of colonization.”

Some Western experts have dismissed these states as “small, poor and inconsequential.” They allegedly support China because they receive massive Chinese assistance. Niger’s oil industry is said to be almost totally dependent on Chinese enterprises and the CNPC (China National Petroleum Corporation). It is true that Mozambique declared its support during a state visit of its president to China, when the two states agreed to establish a Strategic Partnership for Comprehensive Cooperation and China promised to assist in Mozambique’s industrialization and modernization.

Nevertheless, as China’s spokesperson rightly pointed out on March 25, 2016, the dismissive attitude is “permeated with arrogance, prejudice and snobbishness… all countries, big or small, rich or poor, should be respected as equals… [It is] particularly preposterous to judge right and wrong based on the size and wealth of a country.”

In that same spirit, China could and should learn a lesson or two from the African countries in the area of peaceful dispute settlement. More and more African states now accept the principle of international adjudication, i.e., dispute settlement through international courts, and actually submit specific disputes to the International Court of Justice (ICJ) and the International Tribunal for the Law of the Sea (ITLOS). Moreover, the actual conduct at the ICJ of three African states whose support China is seeking — Burundi, Senegal and Niger — is exactly the opposite of that of China in the Philippines v. China arbitration.

African States Accept International Adjudication

The consent of states parties to a dispute is required before an international court can hear their dispute. A dispute may be submitted to the ICJ if states have given their consent in advance under Article 36(2) of its Statute, through a special agreement, or through a treaty on another subject. States parties to the 1982 UN Convention on the Law of the Sea may also give their consent in advance to submission of their disputes to ITLOS, created by the Convention.

States prefer to resolve their disputes by negotiation, mainly because they believe that they remain in control of the process without the intervention of third parties. In addition, socialist states believe that international law is a tool of capitalism; for developing countries, it was an instrument of imperialism. At present only 72 UN members (less than one-third of the total), have given their consent to dispute settlement by the ICJ under Article 36(2) of the Statute.

As a socialist state, China is viscerally opposed to dispute settlement by international courts. In contrast, the attitudes of developing countries, in particular the African states, have evolved considerably since the 1980s. Before that time only 12 African states had recognized the Court’s compulsory jurisdiction: Botswana, Egypt, Gambia, Kenya, Liberia, Malawi, Mauritius, Somalia, Sudan, Swaziland, Togo, and Uganda. Since then they have been joined by Cameroon, Côte d’Ivoire, Djibouti, Democratic Republic of Congo, Guinea, Guinea-Bissau, Lesotho, Madagascar, and Nigeria, bringing the number to 22 (out of 72 UN members from around the world). This group includes four of the states that officially support China: Cameroon, Côte d’Ivoire, Senegal, and Togo.

African states now constitute the second largest group of states that have recognized the Court’s compulsory jurisdiction, second only to the group of European states (27). The number of Asian states that have done so (six, including the Philippines and Japan, but not China) has not increased at all since the 1980s. Understandably, Africa’s role in reconciling the Third World with the ICJ has been described as “considerable.”

Of the 22 African states on the list, eight (Cameroon, Democratic Republic of the Congo, Guinea-Bissau, Kenya, Nigeria, Senegal, Somalia, and Uganda) have been involved in eight cases. Seven cases involving ten African states (Benin, Botswana, Burkina Faso, Chad, Libya, Mali, Namibia, Niger, Republic of the Congo, and Tunisia) have been heard on the basis of a special agreement, while five disputes in which five African states were parties were submitted on the basis of a treaty (Burundi, DRC, Djibouti, Libya, and Rwanda). A total of 21 African states have thus been involved in 19 out of 83 cases heard by the Court since 1980. The figures might seem very low but Asian states are arguably even more wary of international courts. Since 1980 the Court has heard only two “Asian” cases, in which three Asian states (Indonesia, Malaysia, and Singapore) were parties.

As for ITLOS, 36 states, out of 167 parties to the 1982 Convention, have accepted its jurisdiction. Six African states (Angola, Cape Verde, DRC, Madagascar, Tunisia, and Tanzania) make up the second largest group, together with the Latin American and Caribbean group, that has accepted the Court’s jurisdiction, after the European group.

None of the six has been a party to any of the 23 inter-state cases that have been heard by ITLOS, but five other African states have appeared before it. Ghana and Côte d’Ivoire concluded a special agreement requesting that the Tribunal delimit their maritime boundary. Ghana and three other states (Guinea, Seychelles, and Guinea-Bissau) have appeared in five cases relating to the release of vessels.

Beyond the statistics, the conduct at the ICJ of three African states whose support China is seeking – Burundi, Senegal, and Niger – vividly demonstrates the great differences between Chinese and African attitudes toward international courts.

African States Appear Before the ICJ   

Burundi has not accepted ICJ jurisdiction and thus may not be forced to appear before it. Yet when a case was filed against it, it did not boycott the Court. Senegal, which has accepted ICJ jurisdiction, cannot anticipate when and over what issue another state may bring a case against it. If the issue is sensitive, Senegal might still challenge the Court’s jurisdiction. Nevertheless, it chose to appear before the Court when Guinea-Bissau filed two cases against it. Niger, which gave its consent by special agreement, could not predict the outcomes of the cases, but accepted the risk of unfavorable outcomes after decades of negotiations with two neighbors had failed.

In 1999, Burundi was accused of aggression by the Democratic Republic of the Congo (DRC), which had accepted ICJ jurisdiction. Aggression is one of the gravest violations of international law that may be made against a state. International law prohibits the use of force in international relations, and the UN’s fundamental aim is to maintain international peace and security. No state, big or small, wishes to be accused of aggression. The conduct of Burundi in this case should be instructive to China. As Burundi had not given its consent to ICJ jurisdiction, it could have boycotted the proceedings. Yet Burundi appointed an agent to represent it in the case; attended a consultation with the DRC and the ICJ over the procedure; and complied with the deadline set by the Court for submission of its written arguments. The case was terminated when the DRC discontinued it in 2001.

Senegal, which accepted ICJ jurisdiction in 1985, was implicated between 1985 and 1995 in a less dramatic, but more protracted, process: it was a party to three proceedings before two international tribunals over one issue, maritime delimitation with Guinea-Bissau, which accepted ICJ jurisdiction in 1989. In the first case, an arbitral tribunal held that a 1960 exchange of letters between France and Portugal, the then colonial powers, had determined the boundary between Senegal and Guinea-Bissau, but that it did not delimit their EEZs (Exclusive Economic Zones). In the second and third cases, Guinea-Bissau, which was dissatisfied with the tribunal’s award (judgment), requested that the ICJ declare that the award was null and void and delimit the maritime boundaries between the two states. It was arguably not in Senegal’s interest to participate in the second case, since the tribunal’s award was partly favorable to its theses. But both had accepted ICJ jurisdiction.

Senegal’s conduct in this case could not be more different from that of China in the Philippines v. China arbitration. Senegal appointed an agent to represent it in the case; participated in consultations on the procedure; submitted its written arguments by the deadline; and took part in all oral proceedings. Senegal denied that Guinea-Bissau’s case was admissible. The ICJ did not agree with Senegal, but it ruled that the award was valid and binding for the two states. The ICJ’s judgment paved the way for negotiations between the two states to delimit all maritime areas and the withdrawal of the third case in 1995.

Niger, which has not given its consent to ICJ dispute settlement, has been party to two frontier disputes before the Court, which heard them on the basis of special agreements. Niger and the two other states involved could not have predicted the outcome of the cases; notwithstanding the uncertainty they turned to the ICJ because decades of negotiations following independence from France in 1960 had not yielded any solution. This conduct again contrasts sharply with that of China, which insists on bilateral negotiations despite the fact that they have failed over many years.

Niger’s dispute with Benin (2002-05) concerned 25 border islands situated on the delta of the Niger and Mekrou Rivers between them. Although incidents had occurred in 1960, 1993, and 1998, joint commissions meeting in 1961, 1963 and between 1995 and 2000 failed to delimit the border. The two states finally signed an agreement in 2001 to submit the dispute to the ICJ.

African observers believe that the Court’s judgment represented a balanced settlement. In one sector of the boundary, the Court accepted Niger’s thesis; in another sector, it was Benin’s thesis that was followed. Benin thus had title to nine islands situated between the boundary and the right bank of the Niger River, while Niger was granted title to 16 islands situated between the boundary and the river’s left bank.

In the Niger-Burkina Faso (2010-13) dispute, commissions meeting in 1964, 1988, and 1991 had been unable to demarcate the border. In February 2009, the two states finally concluded a special agreement to submit the dispute to the Court. African assessments believe that the Court’s judgment split the difference between the two states. It rejected Burkina Faso’s request for delimitation in two sectors in the North and the South, while at the same time rejecting Niger’s request to modify slightly the delimitation around two localities. The Court’s judgment attributed 786 square kilometers of territory occupied by Niger to Burkina Faso, which acquired 14 villages; 277 square kilometers of Burkina territory were returned to Niger, which received four villages.

A Burkina source implies that Burkina Faso obtained a slight advantage over Niger by being granted greater access to the River Sirba, an affluent of the Niger River, than Niger would have wanted. Yet Niger’s Minister of Justice declared that the two states were winners, because there would be no more disagreement regarding the border. It would seem, then, that the risk of submitting the dispute to the Court was worth running, because the Court gave reasons for satisfaction to both states.

It is sad that China should have to be reminded of the conduct of African states at the ICJ. Based on its own assertions of equality, China cannot dismiss African countries’ attitudes to and conduct before international courts, alleging that their disputes have low stakes and that they are small countries. China would do well to stop canvassing their support for its position and emulate their conduct.

Dr. Alfredo C. Robles, Jr. is an academic based in the Philippines. This is an abridged version of a paper originally published by the Philippine Foreign Service Institute (FSI) here.

http://thediplomat.com/2016/06/chinas-south-china-sea-diplomacy-could-use-some-lessons-from-africa/