These questions led me to look into the bigger issues concerning our foreign policy. Before we delve into that, let's first examine the Arbitral Tribunal matter in some details.
Who Conducted the Arbitration?
The case as reported by the media goes like this:
The Philippines submitted its case to an "international court" about the disputed islands against China in the South China Sea in 2013. This "court" went through the process of selecting judges, etc., and finally disclosed its final award on July 12, 2016. The contents of the award are completely in favor of the Philippines.
In order to understand the case, at least in a cursory manner, one must know what this "international court" is. Is this so-called international court the UN International Court of Justice, or at least part of or directly related to it, as many in the media led us to believe?
The International Court of Justice (ICJ) is a division of the United Nations that settles the legal disputes submitted by the UN member nations. It is located in the Peace Palace in The Hague. In the same building there is also another organization called Permanent Court of Arbitration (PCA). The relationship among these two organizations and the Arbitral Tribunal which handled the South China Sea Arbitration case is described unambiguously on the official website of ICJ:
"The International Court of Justice (ICJ) wishes to draw the attention of the media and the public to the fact that the Award in the South China Sea Arbitration (The Republic of the Philippines v. The People’s Republic of China) was issued by an Arbitral Tribunal acting with the secretarial assistance of the Permanent Court of Arbitration (PCA). The relevant information can be found on the PCA’s website (www.pca-cpa.org). The ICJ, which is a totally distinct institution, has had no involvement in the above mentioned case and, for that reason, there is no information about it on the ICJ’s website."
The secretarial assistance from PCA mentioned in the statement above is described on the PCA website:
“In July 2013, the Tribunal in the South China Sea Arbitration appointed the PCA to serve as Registry for the proceedings. The Tribunal’s Rules of Procedure provide that the PCA shall ‘maintain an archive of the arbitral proceedings and provide appropriate registry services as directed by the Arbitral Tribunal.’ Such services include assisting with the identification and appointment of experts; publishing information about the arbitration and issuing press releases; organizing the hearings at the Peace Palace in The Hague; and the financial management of the case, which involves holding a deposit for expenses in the arbitration, such as to pay arbitrator fees, experts, technical support, court reporters etc. The Registry also serves as the channel of communications amongst the Parties and the Tribunal and observer States.”
From these two statements, we can draw the following conclusions:
1) The ruling did not come from the ICJ but from the Arbitral Tribunal with the secretarial assistance from PCA. Neither organization is associated with the ICJ and they are not part of UN institutions.
2) PCA is not a court but an administrative organization for arbitral tribunals.
How Was the Arbitral Tribunal Formed and Who Foot the Bill?
When the Philippines submitted the original dispute for arbitration in 2013, five arbitrators were chosen for the Arbitral Tribunal. Out of the five, one was recommended by the Philippines and the other four was chosen by the then president of the International Tribunal of the Law of the Sea (ITLOS), Hamburg, Germany, Judge Shunji Yanai of Japan. The fairness of the panel has been called into question as none of the five judges – one African and four Europeans, have in-depth knowledge of the South China Sea and Judge Yanai was once Japanese Prime Minister Abe’s advisor on his plan to amend the Japanese Peace Constitution to allow Japan to embark on military actions overseas.
The expenses of the arbitration including the arbitrators’ remuneration as reported by the Wall Street Journal were covered completely by the Philippines, as China refused to participate in the proceeding.
The Western Media and the US Role
When the US and some other Western media outlets such as CNN, New York Times, BBC News and The National Interest reported the news relating to this case, they always phrased their reports in such a way to mislead the readers to think that the judgment or award was from the ICJ in The Hague, or PCA in The Hague. The fact is they were from this ad hoc Arbitral Tribunal, not from ICJ or PCA. What are the objectives of these misleading reports? It looks that they all try to make the "ruling" more authoritative than it actual is.
The misleading news reporting on the arbitration and the tremendous efforts on the part of US taking side with the Philippines against China led me to wonder what is the real story behind this case? Is it merely for a few small islands in the South China Sea or are there bigger issues involved?
In my view, all these maneuvers stem from the Obama administration’s "pivot to Asia" and the "rebalancing Asia" strategy. Many people argue for that policy emphasizing the importance of the US presence in the South China Sea to maintain "freedom of navigation" and to prevent the dominance of China in that region. But as a concerned U.S. citizen, I want to ask our government this question, at what price are we willing to pay for sending our troops to that part of the world (the cost of operating the two carrier groups in South China Sea is roughly $10 million per day). Why our foreign policy is always geared towards maintaining the US military dominance all over the world? Instead of going into wars with other nations, why can’t we cooperate with them to share the limited world resources and build a more peaceful world? I fear the huge presence of the US military in the South China Sea might create disasters in Asia similar to what happened in the Middle East and Central Asia since 9/11. What do we ordinary Americans, asides from the military-industrial complex, have to gain from such adventures? Do we want to create more terrorists coming to this country in the coming years? The money we save from not provoking unnecessary wars can be put to better use back home, such as modernizing our outdated and dilapidating infrastructures.
The time has come for us to redirect our foreign policy towards true multilateralism where we work with other nations without resort to coercion and dominance. This is the only way we can regain the moral high ground in the eyes of the people in the world.
佟秉宇，Paul Tung, 1964台大機械系畢業，1971年 UCLA 材料工程博士，1986赴大陸創業，2013年退休回美，現任中美論壇社務委員。