 Okay, we're back. We're live with think-tech Asia here on a given Tuesday And we have the honor of talking again to our old friend Michael Davis Professor Michael Davis professor of international law at the University of Hong Kong. He joins us by Skype. Thanks for being around Michael Oh, you're welcome. Let's be back on Think-tech good, you know, I mean we had we've had some extraordinary news in the international law department Namely what the court in the Hague did the tribunal in the Hague did on the claims Asserted by the Philippine government and others over China's action in the South China Seas specifically on scubber island and Other areas in that neighborhood. You wrote an article for insight called damage control So we're gonna call this show damage control in the South China Sea. What do you think? Yeah, this article was in the South China Morning Palace. Yeah, the inside is just a section. Yeah, right? And yeah, it's been a big problem. There's a need for damage control Well, yeah, so you and you mentioned and this I'd like to cover this with you if we can in our half hour You mentioned that There are 10 points worthy of consideration and they're all you know beyond the ordinary press I must say this has not been covered in the ordinary press and we ought to we ought to cover it today You know I wanted for example, and I'll go down the list with you You talked about the UN convention and exactly what it provides and the fact that China is a member What's the story on that? Yeah, so I mean China of course, you know a couple of two decades ago was trying to come out of its cultural revolution Trying to become a sort of normal country and and among many things It wanted to do was to sign on to international treaties and be a part of the international Community and the UN Convention on the Law of the Sea is one of those should note the US is not a member of that It's this treaty has been stuck in the US Congress now for decades because I have to say Republicans in Congress are reluctant to sign on to multilateral treaties In spite of that the US claims that it adheres to the treaty more or less it just as a matter of Customary law I suppose not even customary law just that it's claiming to adhere So China is a member and all these countries along You know the South China Sea likewise are members of philippines who brought this case Is a member so so they're basically an effort here to enforce a treaty And why would China join such a treaty? Well one of the things about this treaty we we call unclaws or the UN Convention on the Law of the Sea Is that it extended in the old days? There used to be three mile territorial seas along countries And then there are some countries extending it to 12 unclaws makes it 12 And then it has these exclusive economic zones that go out 200 nautical miles and gives the countries Adjoining countries control over all the resources in the area Both the under the continental shelf and in the sea in the water column So all of that would be very attractive to China As it was emerging from its dark days Yeah, interesting that they would join the convention that the us would not join the convention And now they have essentially abrogate it but one before we move on to point two Which is along those same lines Doesn't it undermine our moral authority our moral suasion here to be Complaining about what China does and we ourselves are not a member of the convention Yeah, this has been brought up a lot a sort of hypocrisy sort of argument I think this argument gets you only so far at the end of the day I mean China basically has to have relations with its neighbors And claiming all the seas south China sea Along their coast Doesn't really improve those relations. So I think China has to look at this on its own The us has been a problem when it comes to multilateral treaties largely again Like these these treaties get blocked in congress or reservations are attached to them that in in effect vitiate them But in spite of that the us more or less follows The principles here and and getting hung up on that I think would be a mistake for China I think you should focus on the problem at hand. Yes, and the problem at hand. So They are China is a member of the convention, but and China is obligated then to arbitrate under that very simple member you agree to certain things and one of them is arbitration, but China has not arbitrated. What is their defense for that? You know that obligation Well, they claim the the philippines is bringing a case that violates or in effect denies Jersey that they shouldn't that the tribunal should not have jurisdiction for and they claim this for two reasons one is Uh, that this is really a dispute over who owns the islands that is sovereignty and this treaty does not cover Uh, territory island territory. It only covers the sea And there are a lot of rights in the sea that attach to the land that at the end of the day It has nothing to say about who owns the island who's sovereign And the other claim they have is they are allowed to put a reservation when they sign on to the treaty That in effect says that they do not subject themselves to this dispute mechanism When it you know, uh, when it comes to questions of delimitation Of whose water is what, you know, whose area is what in the sea? uh, and but however The provision that they sign on to merely talks about When their zones overlap and delimiting overlapping Areas in the sea, uh, and the tribunal took the view in response to these two things that they're both, uh, Wrong One is they're not going to decide and did not decide who owns the islands in the area and two, uh, there were no overlapping as What we call exclusive economics and so that's all And the tribunal therefore was not barred from taking jurisdiction In fact, it was bound to take jurisdiction under the treaty if a member state Brought an action They made a kind of special appearance though. Didn't they China made an appearance to? um to contest jurisdiction and I guess uh That that that runs uh parallel to some of the procedures we have in the united states They didn't acknowledge jurisdiction. They only appeared to say that there was no jurisdiction On the other hand, I think it was a false argument anyway Yeah, they filed a Some kind of statement about this but they didn't formally appear in the case and so they they were uh And they never did appear it was actually comparable to the way the u.s Had the nicaragua case years ago involving contra rebels and all this What the united states was brought before that tribunal in the u.s said no, there's It appeared actually and and said that and challenged jurisdiction and lost it challenged it because the u.s had a reservation to Uh, the the relevant treaties that said it would not accept Uh, the international court of justice is jurisdiction when uh involving a multilateral treaty For the courts as well. This is also customary law that you not, you know, invade another country And so the u.s lost on that this is brought up frequently by china because then the u.s actually Didn't appear further and withdrew from the jurisdiction of the international court of justice So the u.s is setting a sort of bad example here again But uh, in China's part it seems to me there's a little disingenuous to be a member Um, and then you know to contest jurisdiction and then not to appear at all Uh, wouldn't they have been better off, you know in a substantive basis? I mean it smells like in the very outset they knew they were going to lose this case because they don't have a good claim Um, but wouldn't have been better for them to appear and go through the procedure the way everybody else did I would have thought so, uh I guess then they wouldn't have the argument that they're going to ignore it and they're attacking this judgment Luciferously saying that it's an illegal one that the tribunal was constituted illegally One of the problems is that that uh, if they join in the case Then they have a right to so participate in the selection of the arbitrators the judges By not appearing they didn't have that right and so instead that was left to the president of the law of the sea court And and this person happens to be japanese So that of course china has disputes over the sea with japanese as well So but the arbitrators he selected seemed very respectable mostly from europe one from africa And so it didn't seem like a sweetheart deal at all seemed very above board and when you read the decision My god, the decision goes on for 500 pages Uh, so when you read it you can see they're very very thorough And and as I argue in this op-ed, I actually think it would have been to china's It is still is to china's advantage to use this decision Now they could have shaped it better if they had participated Perhaps they their arguments would have been more forceful or the judges that were selected would have been more sympathetic But at the end of the day Because it now the judges that were selected reached a unanimous decision in this case At the end of the day, I think there's a lot of ways out for china on this And if they read the judgment carefully doesn't seem like they have There's you know, it's really it's not as bad as they make it out to be Yeah, and your point which we'll get to in a minute is that this that this is a platform for negotiation that it is not a matter of You know using force or defending against force or Um having a real set too about it rather. This is a good start for negotiation Uh, and that's I think that's a very good contribution. This article is a valuable contribution in that regard Yeah, and it's unfortunate if you read the news today, you know, uh, the philippine Foreign minister As as it affects said that china in a meeting with the chinese foreign minister told them That the only way china would negotiate is that the philippines agrees to ignore The decision so instead of using it as a platform They're torpedoing it and saying we'll only talk to you on that basis The philippines does know if that condition is that and we're not going to talk to you So that's sort of where it's at true two thoughts about that one is that I had understood maybe I I'm not sure where I got this from but I had understood a long time ago Uh, that the the chinese had no intention of respecting the decision whatever it was unless it was in their favor Uh, that they anticipated it would not be in their favor that they didn't have a good claim Um, and that they were not going to abide by it in any event. So this is not news This is not a surprise. They take the position now The other reaction I have is that uh inherent in the notion and what and what they said to the philippines that they asked the philippines To disregard the you know decision just the way they are disregarding a decision. That's that's inherently a threat, isn't it? Well, yeah, it's certainly, uh, I think the philippine leader. He's a new one now Duterte, uh, just elected he's sort of uh Got a rather roguish reputation So people weren't quite sure what he was going to do because the action was brought by his predecessor Uh, and he's some people called the donald trump of the philippines the guy that's elected one's enough, you know And so uh, the result is you know, people didn't quite know whether he would stand his ground But I think the the popular sentiment in the philippines is that he should So he disregards this judgment at his political peril Well, before we get back to all those points and before we take our break Um, I I would like to um, you know ask you what what is the reaction in hong kong? What is the reaction in asia in general and to the extent that you can see it from there? What is the reaction in in the us in europe for this decision and to the The refusal of china to abide by Well, I think the reaction is very positive to the decision because you know is an old principle in law that Maybe no matter who wins a particular thing just having clarity as to you know principles that apply Uh can be to everyone's advantage sort of the spirit of the op-ed that you're you breath Uh, and and I think generally everyone around the world as viewed china's Claims to the long stretches of the south china sea along all of its neighbors To be excessive And it's kind of bullying its way into these claims and so to have them sort of slammed I think was generally viewed favorably by most people here in hong kong was a bit of a split because we have what we call the pro veijing camp And the you know more pro pan democratic camp Pandemocrats, I don't think are much interested or care But the pro veijing guys are all trying to give their testimonials to support the regime. So That's sort of what happens politically here And an interesting move was taiwan the new leader in taiwan has also attacked the judgment because she thinks it Takes away taiwan's or purports to take away taiwan sovereignty over Tai ping island which is in the sproutlings and it doesn't do that I mean it limits the it says in effect that island Is a rock and thus it does not have an exclusive economic zone But it does have territorial waters and the court never decides who owns it So it really didn't do as much harm to taiwan's claim as taiwan would think Do you think that taiwan is just uh accommodating the chinese point on this from political purposes It's hard to know because she's of course the dpb party Which is the one the party that doesn't get along with china So, you know the woman dong party just stepped down and so she's taken a missus size taken up office And china has cut off all communications with her. So there's a very Testy relationship going on, but they like what she did here But at the same time her base may not like it so much that she's getting close to china So, you know, all of these things have a domestic component and an external component Let's take a short break michael. It's michael davis university of hong kong professor of international law We're talking here on think tech asia about damage control in the south china sea will be right back Welcome to think tech hawaii.com. This is johnson choy your host My focus is asia in reveal. We talk about interesting subjects in asia Be sure to check the think tech dot com website on the next topic Thank you You're watching think tech hawaii meeting people we may have not otherwise met Helping us understand and appreciate the good things about hawaii great content for hawaii from think tech Aloha, i'm state senator russel ruderman I represent the punit and kau district on the big island and the host of ruderman round table We're here on think tech hawaii every other tuesday at 2 p.m You can join us at think tech hawaii dot com You can find a link there to uh To a page where you can see past episodes and we talk here about good government Issues and issues of the day facing the state of hawaii i'm russel ruderman. Please join us for the ruderman round table. Mahalo We're back. We're live. We're here with michael davis joins us by skype from hong kong He's a professor of international law at the university of hong kong here on think tech asia And we're talking about damage control in the south china sea and we're Operating off an article that he wrote in the inside section of the south uh south china morning post So so let's talk about some of those other points you made In the article you talked about sovereignty you touched on that before the break So the the hay does not deal with questions of sovereignty What what exactly is its jurisdiction based on here anyway? Yeah, it's based on the un treaty and the un treaty itself that un treaty of law of the sea Unclass does not address the question of sovereignty Over these islands along the sea or any any sovereign territorial issues That's not a subject to treaty if someone wants to go to a tribunal for that They would have to either set up a separate arbitration or go to the international court of justice To argue over who owns an island and so one of the objections of china and won the court accepts is that it didn't have Sovereignty to decide that and and so but it did take the view that it had the power under the treaty to decide What were islands and what were not and if something is an island that is it's not submerged during high time Uh You know, I mean, you know, this sticks above the water at high tide Then uh, it is it could have, uh, territorial waters Uh, and so, uh, it did conclude that in scar rural and in the sprout, at least there were islands Now among the island there's there's an article in the treaty that says that if an island is not subject to human habitation that you know, it's not fit for human habitation The words are in the the article there, but something of this nature then It is classified as a rock If it's a rock then it only has the territorial sea which is the 12 miles It doesn't have the other zones the exclusive economic zone or a continental shell What the what the tribunal held was that all of these islands in this Bratley's, you know These little rocks sticking up are all rocks and in effect, none of them have these 200 miles exclusive economic zones And that has a big implication for the resources and stuff there that means that whoever owns the island Only controls out to 12 nautical miles and not 200 From from the baseline of the island So so that was a critical part of the decision It seems like a massive point, but I personally am a bit skeptical about how big it is I think it's important to appreciate that these countries all of them have domestic political problems if they surrender territory They surrender sovereignty or something But from the average joe's point of view, it's the island that that you have to hold on to not all the seas around it The people in japan the right will get incensed if abbey gives up You know islands they're not going to fuss over whether he gave up some column of water somewhere But they're going to get mad if he does that and shijin ping has the same limitations and so does Duterte in the philippines. They all have to guard there and sci in taiwan They all have to guard their islands. So the fact that these islands sovereignty has not been decided I don't think is is an obstacle that should hang china up that much because at the end of the day China wants the resources in the area Companies are going to be given contracts and they're going to get these resources And it may not matter that much which country is giving them the contract Because the resources are here in the region. They're going to be available and they're going to be purchased So it becomes I think china maybe is not considering this carefully enough There's been no these so-called islands that have been designated rocks without 200 mile zones Are still up for grabs and if they can win them in any way by Negotiated settlement or by a tribunal of some nature Then that's still there. Nothing has changed in that regard. What about scabro scabro is not a rock scabro is You know a military base already and scabro is an important strategic feature in that area already Where does the decision take take on that one? The thing that's important here is scabro. Of course, it's called scarboreal shoal So in a sense if you and I were seeing its name, we would think it's all underwater During high tide But what was interesting and a lot of the media kind of got confused on this Was interesting is the court did say some parts stuck up Above water and high tide so some of it is islands and that means a 12 mile nautical mile zone around it Is still up for grabs even though it's physically Located in the Philippines exclusive economics So scarboreal does have islands, but you're talking about buildings and stuff Artificial islands the court does not consider artificial islands. They consider it only in the natural condition So if you read the decision of going on for so many pages It actually looks at the history of what it looked like before people started trying building things around there And so and that's true of all the islands where there have been built structures There are two of them that that in effect were handed to the Philippines That was the appropriately named mischief reef which China has built some artificial stuff on top of That's clearly in the Philippines area and in its natural condition never did extend above high tide So that one and the so-called second thomas shoal nearby Were in effect awarded to the Philippines because they're both deemed to be below high tide Elevation say awarded, but um, you know question is is that going to stick is china going to disregard that too? Well, it is it's claiming to disregard everything I think their case for doing that is kind of slim In effect, those are no different than the seabed and they're very clearly inside the 200 nautical miles From polymon island in the Philippines. So the result is uh, if china wants to claim them It's trying to intrude what china's argument essentially was though is the Spratlys is within 200 miles as well So if the Spratly island typing were not deemed to be Uh, just a rock Then it would have 200 miles and you would have overlapping exclusive economic zones But that didn't happen because that so the court dodged all of that in the original Motion to dismiss the case over jurisdiction the court had said it would not even decide those issues until the facts were explored Because it needed to determine whether that was a rock or an island. Yeah, by the way rock doesn't mean it's physically made of rock It just means an island not fit for human habitation And usually that that there's never been human habitation except for uh, you know, contrived human habitation Then then likely it's not fit Well, let's address the uh, the one that really offends most people and that is uh China's claim that it has some sort of co in co it historical right to this area Based on something then what was it the nine dotted line Back when which has no legal moment at all, but that's that's been their primary Position hasn't it that they have an historical right. That's what they tell you, you know Right. Yeah, that that was also part of the judgment Because this is kind of never it's never been clear just what is the basis for this historical right You know, there isn't a provision within the treaty that says if there are these established historical claims That they could be considered But I can say generally these tribunals take a dim view of it because countries in those days When it comes to uninhabited islands really didn't care about them. They were just useless because you couldn't in you know, take the Oil or whatever from the bottom of the sea, you know in the 19th century So the islands weren't really valued much So countries that try to make the altis historical claims Typically rely on the fact that fishermen stopped there and so on and tribunals And this one included don't take much they take a dim view of that that you know, that's not really a sovereignty claim China even claims on some islands in the east China sea that they sailed past them on their way to okinawa This is not a basis for sovereignty and so It's generally thought even before this that these in so-called nine dash lines which were actually 11 originally And they were written by taiwan the republic of china Would not be taken very seriously and china's never really told the world What's the basis of those claims and in this hearing? When the court in this judgment where the court goes on for 500 pages it has a number of pages Where it discusses the inadequacy of any claim based on this and argues that china has accepted the treaty So, you know the treaty is coherent, but some kind of vague historical claim is not and that was dismissed What about this these last couple of points you made in your article in the south china morning post That is that there's been environmental damage and the court recognized that And that china has been trying to shoo away Its patrol boats that have been trying to shoo away filipino Fishermen, where does that fit fit in a decision? Well, this is really important because one thing people may not appreciate there's over 300 articles In this u.m. Law of the sea treaty and many of the articles deal with issues such as these And so it's it's an important part of the treaty To preserve the natural environment of the seas And china You know in hawaii, I remember when I go to hanama bay I'm told i'm not supposed to step on the reef and they have these lovely little movies telling us all about three Well over here in the south south china sea the chinese have been blasting away at the reef You know to build these artificial islands and and I thought well, that's bad enough, you know And we're told that 60 percent of a reef is destroyed when they go about doing this And of course all the muck and mud and everything and sand that start up may kill the reefs even further people in hawaii know this But then it turns out when they want to get clams and sea turtles from underneath Areas of the reef they actually have figured out the fishermen and it's not the government But the government is somewhat responsible for what they do Had figured out that they can use boat propellers to sort of drill Yeah, I saw that in your article. I was really dismayed about that Well, you know all the equities really favor the philippine claim here And so I think it's a great statement that the hag is alive and well The tribunal is alive and well the law the sea is alive and well Except for china's refusal to abide by it and I and I think michael your point your suggestion that this is a good point of platform A starting off point for a good negotiation That would be the only realistic solution here and I sure hope we reach that I I sure hope that you continue to write and speak for that We're out of time, but I want to thank you for coming around And talking about the south china sea and the damage control. Thank you for sending the article This is an amazing issue. We'll be covering it some more in the future. Thank you michael davis professor of international law at the university of hong kong Thank you jay look forward to future discussions. Thank you