 We start our broadcasting day today. I'm Jay Fiedel on Think Tech. This is What is it? I guess it's about Asia. It's Think Tech Global, okay? And we have a distinguished and honored Michael J. Marks, distinguished professor of law at the University of Hawaii William S. Richardson School of Law. We are honored to have you, Diane. Thank you. Thank you, Jay. It's always great to be back. Diane Desi Aerto. Diane has been intimately involved in the decision about the South China Sea from actually before its inception. Can you tell us a little about your involvement? Well, in 2012, I was brought in as one of the group of experts to examine what could be done in the, in relation to the Scarborough Shull incidents between Philippine fishermen and PRC authorities. And I had to- That was what provoked all of this, isn't it? Yes. And in 2012, I was still a professor at the University of the Philippines. I was just about to go to Peking University as professor of international law. So at that time, it was interesting because it gives you an insight into all aspects of all the disputants and to understand where their relationships are. And because I'm not a government official, I'm not as constrained to defend any particular position, but rather to give the most objective perspective I could give on the possible remedies in this dispute. So you advise Philippine government about this? I would say I'm one among several Philippine international lawyers who were tapped to provide answers to various questions. I was not council of record for the Philippines and I did not wish to be so. I would be repeatedly given many queries. I also serve as legal expert for the ASEAN China working group on the South China Sea that works on the declaration on the Code of Conduct for the Parties to the South China Sea dispute. I also serve as the maritime security legal expert for the European Union between the European Union ASEAN Dialogue. This dispute and this resolution, correct me if I'm wrong, but it sounds like it's unique. It hasn't really happened before in the history of the world. Well, it is unique and it hasn't happened in the history of jurisprudence that we've had to clarify the status of geographic features before a maritime delimitation. Many cases don't automatically result in maritime delimitation because negotiations take place between the parties, but what threw a wrench into the proceedings was the fact that China had repeatedly been using a nine-dash line map and they were quite unclear in the beginning. In 2012 they were using the map in various capacities and submissions before the United Nations and the Philippines was wary about the way that the map was being used and they sent various diplomatic notes, as I understand, to clarify the status of the map. Saying don't rely on this as a historic claim because that doesn't work. Right, because in the first place, in international law, maps are not a definitive source of sovereignty or territorial sovereignty. They can be corroborative evidence of sovereignty, but other matters are required such as possessions, such as basis of title. Those are other matters for territorial sovereignty. The map needed to be clarified and my understanding in 2012 was that the concern of the decision makers was that the map was being used for greater and greater enroachments on the disputed geographic features. You can see it coming. This is all ramp up by China. Well, in 1995 China had seized mischief reef and displaced Philippine fishermen. The Philippine government protested it, but nothing happened after that. This really escalated. Around 2008 when the then president of the Philippines, Macabagal Arroyo, entered into joint marine seismic undertaking agreements with Chinese National Oil Corporation. They were given permission to do seismic surveys. Seismic surveys are done to find out how much hydrocarbons are possibly in the area. Around 2010, the findings were made clear to many parties that there were rich hydrocarbon resources and reserves in the area. That was the first time that the Chinese ships were permitted that far out into the Spratlys Islands mature within the Philippines archipelago. Given the race for resources, it was only a matter of time for consolidation to start. Just to make it clear, all parties to this dispute have not always observed the status quo. Everyone has been selling concession blocks to what are essentially disputed areas. So what's in it for China? It just seems obvious that they want to control the shipping lanes. It seems obvious they want a strategic military base on the Scarborough Island. And I guess they want to displace the Filipino fishermen. But what else? What is their cause for doing this? Let's take it a step back and remember that China is now the world's largest economy. It is also being led by a different president. Wen Zhebao is more globalist. Xi Jinping also has constituencies among his right-wing military to placate. There's also an ongoing narrative in China about the historical place of China in the world. It is an empire. It is one of the oldest empires in human civilization. And the claim to the entirety of the South China Sea is essentially a historic one. It is not just about economic strategic resources, but the reason why the PRC feels strongly about this about this is it is tied to their national narrative. It is tied to their sense of destiny. Stand up, China. Stand up, China. We are a great power and this is an example. And their sense of empire. And President Xi Jinping talks about the rejuvenation of China and this plays into the geopolitics with the dominant power of the United States and how they as the rising power are being challenged by the United States and the Pacific. So it's a lot of things. It's not just about fish stocks or shipping lanes or economics or military acquisitions. It's strategic. It's geopolitics. It's not only about the Philippines too. It's about all of Asia and it's about the U.S. Yes. And the other disputants have also had to endure their fair share of enroachments from China. This is the first time that they've become more aggressive since around 2000, actually since the 1995 Mr. Brief expulsion of Philippine fishermen. The Paracels Islands dispute with Vietnam, drilling that already took place which would never have been contemplated by many of the Southeast Asian states. There is a very stable relationship between China and Southeast Asia. This is a challenge. This is a face down. This is risky for China, isn't it? It is. It's also risky for the rest of the participants. But I think for the cause of international peace, everyone in that part of the world is interested in a faster, more peaceful solution. And the arbitration is intended or was intended to be that, to clarify the positions of parties before we start negotiating on overlapping exclusive economic zone boundaries, let's clarify what the status of that map was. And the tribunal pointed out that that's invalid and it cannot be used. And also in the status of geographic features, whether or not they can generate zones that would push China's claims to overlap with other exclusive economic zones. Those are antecedent questions. But with all of that, you really wonder why China would have essentially ignored the proceedings. Maybe that's too strong a word, not participated formally in the proceedings. Why did they do that? And was it the right decision or the wrong decision? Well, I think they took a very concerted view that arbitration is meant to be consensual and they understood the claims of the Philippines initially to be framed really as maritime delimitation claims. But the tribunal squarely rejected that in its October 2015 decision on jurisdiction. Because, as I said earlier, these are antecedent questions. There's no title that's being decided here. There's no boundary that's being decided here. We're just clearing the cobwebs so that all of the parties could ultimately negotiate. This could have been a good opportunity for China to ventilate its historic claims, to put forward its own evidence, because it was already doing so. In many of its public pronouncements, even down to a December 2015 position paper, they had an extensive paper that was substantiated by both facts and evidence on the jurisdictional objections they had to the proceedings. If they were going to do that and if they were going to go on a global campaign to keep trying to convince the rest of the world, why not participate in the proceedings? Yeah. Oh, let's dwell on the global campaign for a moment. Right. They have been advocating all over the place, including especially in Asia and with the ASEAN countries, that they're right and their position is correct and everyone should get behind them. They have, and it's part of an ongoing dialogue between ASEAN and the China working group where I serve as a legal expert. But we have to separate out what are the politics of the matter and what the diplomatic speak is as opposed to what parties can realistically submit to a tribunal. And what was submitted to this tribunal was very narrowly drawn. And much as China could have intervened at any part in the proceedings, it was baffling to so many that they chose not to. And instead kept going on a global campaign to rally support. This became difficult when China started undertaking land creation, I wouldn't even say land reclamation, land creation activities in the disputed geographic features because that changed the game for everyone. Pending a dispute, there is a duty on all parties to a dispute to maintain the status quo, not to change the geographic environment, not to disrupt relations between the parties. And all that the Philippines had done was to file that arbitration case. China proceeded on a rapid massive island building. Exactly. And once that happened, and once there were exclusions being made against Philippine fishermen, against Vietnamese fishermen, against they even went as far down as Indonesia and the Natuna Islands and the Indonesians burned boats. They're known for doing it. It became a regional maritime security issue. And so this is why we're at the forefront. And partly China has been not consistent with its policy. I think its thinking has been evolving on the subject since 2012. Well, it sounds like in terms of public relations, despite their attempts to advocate to position and twist arm geopolitically, fact is they took a hit here in terms of public relations. Their image in the world, they look like a bully. They're against this court to which they are a signatory to the treaty. Theoretically, at least as an argument, that they are obligated to participate and they decline to participate. And they make a grab right in the middle of the proceedings. It all seems terribly unfair. It seems like the acts and the attitude of a bully. Do you think they lost ground in world opinion? Well, most of the press is reporting that, that they have. And even before the decision was released, they were already trying to discredit the credibility of the members of the tribunal. That's unheard of in international practice. China has international tourists in every single international court. The International Court of Justice, the WTO, almost all of the major tribunals. And they know, and because they are an active user of the system, they know that international decisions must be respected and must be enforced. They took a hit and the public relations perception probably will dial back once negotiations have already started. And the Philippines is now trying to initiate that with the new president sending the former president of Fidel V. Ramos, a special envoy to China. Yeah. How does he feel about this? You know, the changes in leadership are happening here and there. And Taiwan, the same thing, a change in leadership in a minute. So how does President Rodrigo... Duterte. Duterte. How does he fare on this? What's his position? I know recently he made it clear that he wanted to stand up and protect the Philippines against this. But how strong is he on the subject? I think the president is only slightly over a hundred days into his presidency. The foreign policy is evolving as we speak. They have affirmed the arbitration award and they have defended it and they have stood by it. And so that is promising. They have also pointed out that the Philippines will pursue an independent foreign policy, which is mandated under its constitution. And he is not in favor of siding with either the United States or with China. So he's not being very visible right now. It's all right to be opaque when you're in the middle of diplomatic negotiations. But it's a tremendous sign of respect for the PRC as well as for the significance that the Philippines attaches to the ultimate maritime delimitation issue that President Ramos is being sent to Beijing. Yes. And can you talk about that trip? Well, he just agreed. He's basically been the Philippines' foremost statesman. He's been a patriot for the country. He's the best person. And in fact, during his term as president, there were very few incidents at all with China because everything was diplomatically resolved. So I'm optimistic that the beginnings of a durable maritime solution can be met. But it cannot be met by abandoning what is already a part of international law, which is this arbitration award. And the Duterte administration has already said that they will implement the award and they will consider it as part of international law and in the negotiations. That's promising. Well, just looking at it from the point of view of whether China, after having been essentially a bully up to this point, whether it's going to enter into good faith negotiations and, as you said, accept the existing international law that we're working forward from. Well, there are bullies and there are interests. I'd prefer to think of it as interest. China wants to build a maritime silk road and a maritime belt. It needs the cooperation of the rest of the world. It cannot afford to be perceived by the rest of the world as a defector from international law because if it does not honor its agreements, if it does not honor the international system, Africa will not trust China, Latin America will not trust China, and all the capital in the world will not be enough to sway countries to believe that China will honor its commitments. In terms of the track record, China actually has a fairly good track record of compliance, which is why when so much of the news was coming out that China did not want to enforce it, I took a fairly skeptical view. I taught at Peking University, as I told you, and it takes a while for expectations to be managed. It takes a while for information to be disseminated, and I think once they appreciate the full consequences, the limited, narrow consequences of this decision and they realize that we still go back to negotiations with all of the disputing parties in this case, many of the, much of the rhetoric will, will sober down. Yeah, yeah, it'll sink in over a little time. And I need a little time to have it sink in too, so that's Diane DiCieto. We are honored to have her here. She is the Michael J. Marx Distinguished Professor in Business Law at the William S. Richardson School of Law, and she consults with the Philippines and ASEAN and the EU on matters of the law of the sea. We'll take a short break, we'll be right back, and we'll talk about Taiwan and what they're doing. All right. Aloha, everybody. My name is Mark Shklav. I'd like you to join me for my program, Law Across the Sea, on ThinkTechHawaii.com. Aloha. Hello, I'm Crystal from Quok Talk. I've got a new show here. You've got to tune in, check out my topics on sensitive, provocative, female issues. So, Tuesday mornings, 10 o'clock, don't miss it. It's going to be fun and dangerous. Hello, and I'm Patrick Bratton. Please join me for Global Connections every Thursday at 1 p.m., where we talk with a variety of guests about various international issues, historical issues, both here in Hawaii and abroad, range from security, human rights, ethics, and all sorts of other things. So, please join me. I look forward to talking with you and seeing some of my guests. Aloha, and welcome to ThinkTechHawaii. I am Inna Chang. I am the guest host for Small Business Hawaii with Rich Baker. Tune in every Thursday at 2 p.m. and watch us. Aloha. We're back. We're live with Diane DiSietto. She's the Michael J. Marx Distinguished Professor in Business Law at the UH School of Law, William S. Richardson School of Law. We're delighted and honored to have her with us to discuss this very important subject. That is, you know, the implications of the decision of the South China Sea by the Tribunal with the Hague. Then she has been involved covering this like a blanket from the very beginning. So, Diane, what happened with Taiwan? Taiwan, my recollection, correct me, was at first they agreed with the China position on this decision, and then they kind of backed off. And there's a brand new, what, Prime Minister of China, President, and she's trying to find her way. So, how are things going in Taiwan? Well, Taiwan is interesting because of a feature called Itu Abba, and which is under... It's an island. It's an island. Well... According to the Tribunal, it's a rock. Okay, a rock. It doesn't generate maritime zones. So, this feature was the basis for China to assert that it can project from Itu Abba more than 200 nautical miles down south, and that can include the EEZ hydrocarbon resources in the Spratlys Islands. This is why it was heathedly contested. Taiwan's former president is an international lawyer and, in fact, had written considerably on the South China Sea dispute. And they took the position that Itu Abba, that Taiwan wanted to participate in the proceedings and wanted to submit. But of course, because it was not a party to the arbitration, it could only try and make a submission to the Tribunal Ex-Abundante Cotellum with caution. They submitted, and I haven't seen that actual Taiwanese submission yet, to more or less point out that the feature is an island. It is capable of sustaining human habitation in life. And, in fact, they took press members to show that, you know, there's habitation here. It's possible. It should, by geodetic and geographic measures, be treated as an island, and by environmental standards as well. That evidence was taken into account by the Tribunal. But the Tribunal... This is like an amicus brief? Right, except that their standing was not very clear in the arbitration. That was taken into account by the Tribunal. But the Tribunal had specific criteria. It wasn't just habitation at one point in time. It was sustainable habitation. And so their criteria for what ultimately would amount to an island or a rock under Article 121 of Unclose was given more flesh in the arbitration award. That's the UN Convention on the Law this week. Yes, yes. So since then, with a new change in administration, Taiwan has taken an interesting position in the South China Sea. They have been perceived to be aligned with the PRC's interests. And at the moment, it's not very clear how they're going to push that forward other than to oppose the characterization of Ituaba as a rock. Because they do have claims, and they say that their claims were jeopardized from the fact that the Tribunal characterized this feature. Yeah, so they didn't want to be held to the decision. Yes. They want to at least give a footnote to it. Yes, yes. So, you know, I think it becomes clear that there are multiple kinds of claims here. And as you mentioned before we started, the Philippines filed 15 claims, 14 were granted. Can you give us a sort of categories of claims included in the 15 and tell us about why they lost on the 15th? Without going through the rundown of the 15th, there were nine geographic features. There were also questions about China's enforcement, alleged enforcement activities, and whether or not that was lawful. There were also questions on the validity of the nine dash line map and whether the limits drawn in that map were consistent with Enclose. When I first came on board, the initial proposal was just to invalidate that map to make sure that it cannot be used in negotiations. It was, it's really not historic. Right. Because. The map was made in the 40s. Right. Because it doesn't take a genius to find out that 200 nautical miles cannot extend all the way down to the very perimeter, the southern perimeter of the South China Sea. So, that was initially the position taken by the Philippines. But when it engaged Foreign Council, and which was in this case an American law firm, Foley-Hoag, they also worked with the Philippine Department of Foreign Affairs to include more aspects, which include, because that time contemporaneous events also took over. There were questions on the legality of China's land reclamation, land creation activities, which the tribunal said was not correct. There were also questions on the enforcement activities against Philippine fishermen. And in that respect, while the tribunal, in regard to Scarborough Shoal, said that we will not pass on the issue of who owns Scarborough Shoal, parties have a joint right to fish in that area. They cannot mutually exclude each other. There must be some cooperation. So, the kind of enforcement activities that the Chinese Coast Guard was doing to repel Philippine fishermen was not lawful. Yeah. Another piece of bullying. Right. Right. So, the 15th, which is the one that the Philippines lost? It was that one on Scarborough Shoal and who had exclusive fishing rights to Scarborough Shoal. On the other question on, I think, one of the features, the jurisdictional issue was, the tribunal chose not to resolve that issue, but on all the other issues on Gavin Reef, Subi Reef, Carteron Reef, Fiery Cross Reef, all of the nine features, the tribunal ruled pretty much in the Philippines' favor. So, nearly a perfect win. Yes. Yes. So, the U.S., where is the U.S.? U.S. is not a party to treaty. It's not. As is so often and sadly the case. And the U.S. is interested mostly in military and strategic issues around the base that they built on Scarborough Shoal. So, when did the U.S. get active on this? What is the position that the U.S. has expressed? How much effort did they put into supporting the Philippine position? Let me break that down. The South China Sea is not just a matter of interest to the climates, but it also comprises the high seas in the South China Sea comprises the global commons. So, in the global commons, everyone has interests, for example, in the marine environment, the protection of that marine environment. That's an environmental issue. Yes, which was damaged in the massive dredging operations that were undertaken by Chinese dredgers to build the islands. States also have a common issue in ensuring freedom of navigation. They also have a common issue in ensuring that the freedom of navigation and overflight and shipping lanes are protected, fish stocks as well. So, the United States has an interest, even if it's not a party to the UN Convention on the Law of the Sea, in ensuring freedom of navigation. Their position has evolved from 2012. Because in 2012, there was some ambiguity about whether or not the Americans really wanted to get involved, and there were some statements that came from Pacific Command, some statements that came from the State Department. But generally, it was about upholding the rule of law. That changed radically when China undertook its island-building activities. Because by then, as you can see, if you take a look at the website called Asia Maritime Transparency Initiative, which has real-time satellite photographs of the geographic features, you will see that China built military capability facilities on the geographic features. And for that reason, because it's also, I suspect, a geopolitical security matter, it affects the Pacific Theater, it affects strike capability to Hawaii, Pearl Harbor. The United States has strategic interests to protect, but it's not a party. Isn't it also United States hegemony? Isn't it also United States influence, the image of the United States in Asia, the pivot to Asia, all that? Our attempt to look good for Asia doesn't look so good right now. Well, it was promising in the beginning when the economic guarantees under the Trans-Pacific Partnership were made, and the agreement was concluded. But in so far as engaging with China, the United States has been ambiguous. It has been perceived by ASEAN as neither fully in the ASEAN camp, and neither should it be that partisan either. It has to be strategic because China is also a rival, but also a partner. So it cannot be seen in a binary sense of a relationship that is either or. These are relationships that have to be managed. Should the United States be involved in these negotiations, either directly or indirectly? I don't think so, because the United States is not a party to the dispute, which is why the only people with a seat at the table for the ASEAN-China Working Group on the Code of Conduct are the parties who are directly involved. The United States has interests in freedom of navigation as a general principle of international law. It has interests, it has an enhanced defense cooperation agreement, a treaty now with the Philippines, which permits it to base American soldiers and American military equipment in about five different bases in the Philippines. So perhaps on that basis, because of support, and it's also already concluding those similar agreements with Vietnam, on the basis of those bilateral agreements, there is a lawful basis for them to be present. But in terms of the direct maritime delimitation dispute, it's not a party in interest, and neither has the United States ever claimed that it is. And there's no real possibility of force here. I mean, we're beyond that, aren't we? That this is going to be negotiated to a resolution, isn't it? Well, depending on who you talk to, I see a number of people who are very alarmed over whenever you have too many ships in the same area, and that's seasonal when the weather is good, they're all out there, but when the months and seasons, like they're not as visible. I think a lot of this is a cat and mouse. I do not think it is to- Cat and mouse, you said? Yeah. Okay. I don't think it's to China's interest to trigger a use of force incident, and historically it never has. It's not to its interest. And in terms of blue water and Navy's strategic capabilities, it is heavily outmatched by the United States, and it's also not to the interests of the United States to fire the first shot. This is going to be a lot of circling and pushing the boundaries as much as possible to ensure that Philippine fishermen can fish, to ensure that the Vietnamese can do the same without interruption. In the end, it's a maritime security cooperation issue. In the end, they'll need good counsel, don't you think? I think they have plenty of great counsels. So one last question, Diane. Sure. And that is, you know, we agreed at the outset that this is a unique case, never no real precedent for a case of this kind, this magnitude, this effect. How does this case change the law of the sea? How does it change international law? If we look forward, how are things now going to be different? Well, I've written about this at the European Journal of International Law, where I serve as an editor. It is landmark first and foremost, because this case becomes a source of law. On doctrinal issues, it's settled many issues, such as the interpretation of Article 121 of UNCLOS, what criteria must be given, to what extent do we permit the argument of historic rights when it comes to maritime areas, not territorial questions. It also resolved issues of attribution. So from a standpoint of an international lawyer, it's extremely rich. It's also a rich source of critique for other lawyers. But it's game-changing because it energizes so much of the interpretive space in UNCLOS that before was very much unclear. It was ambiguous. This case becomes the, this award becomes the authority for confirming the interpretation of provisions in UNCLOS that here to before were not. So this advances the prospects, the influence, the jurisdiction, the power, if you will, of the law in this area and of the tribunal? Well, it does. And at the same time, it's preliminary. It does because now the disputing parties have clear grounds to know to what extent they can assert claims and to what extent are enforcement activities under 84-3 between overlapping exclusive economic zones or continental shelves. To what extent does it mean to exercise restraint? For example, in the ASEAN-China Declaration on the Code of Conduct for the South China Sea, all parties agreed that you exercise restraint pending this dispute. But there have been differing interpretations of what restraint means. Does it mean I don't push my claim or does it mean I can still build an island? This case very obviously says you cannot. And you cannot damage the marine environment. You cannot build islands. Neither can you expel fishermen from what are deemed to be common fishing grounds. It sounds like you'd had a positive effect on the law, the practice, the court, and for that matter, you know, the notion of sharing the oceans. Hopefully it does. I think when the dust settles and so much of the real negotiations, the real work settles, you will find that the seas will calm down. There you have it. The seas will calm down. Okay. Diane DiCianto, she's the Associate Professor of Law and Michael J. Marx, Distinguished Professor of Business Law at the William S. Richardson School of Law. She taught in three law schools. Can I get this right? In Philippines, in China, and here in Hawai'ine. Yes. And she consults with the EU, with ASEAN, and the Philippine government. Thank you so much, Diane. Thank you, Shay. Aloha. Aloha.