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News24.com | Pieter du Toit: Beyond Covid-19 lies turbulence, change and opportunity

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China's Fury Over South China Sea Belies Its Legal Insecurities

4 July 2016

Sonya Sceats

Associate Fellow, International Law Programme
Despite its dramatic rejection of the South China Sea arbitration case initiated by the Philippines, China is gearing up to play a much larger role in the evolution of the international legal system.

2016-07-04-ninedashline.jpg

A vendor in Beijing stands behind a map including an insert depicting the 'nine-dash line' in the South China Sea. Photo by Getty Images.

It is tempting to read China's refusal in this case to acknowledge the jurisdiction of the arbitral tribunal in The Hague as the defiance of an arrogant superpower that views itself as above international law. No doubt many in Manila, Washington and elsewhere are purveying this view. But there is more here than meets the eye.

For decades, Beijing has complained that the global order was forged in an era when China was weak and the rules of the game are rigged against it.

But this lament is more difficult to sustain in relation to the UN Convention on the Law of the Sea, which China helped negotiate in the 1970s and early 1980s. Beijing signed the treaty as soon as it was opened for signature in 1982 and ratified it in 1996.

The Philippines initiated this arbitration against China in 2013 as part of a long-running dispute over rights in the South China Sea, including over the Spratly Islands (known as the 'Nansha Islands' in China) and surrounding maritime areas. 

Under the treaty, China is not obliged to defend the case but this is no bar to proceedings and it remains legally bound by the award. From a legal perspective, its refusal to participate is thus a risky move, all the more so since the ruling is likely to have legal ramifications for China's highly charged maritime disputes with other neighbours such as Vietnam and Malaysia.

It is well known that the legal proceedings launched by the Philippines sparked a contest of ideas in Beijing. Behind closed doors, some Chinese international lawyers argued that China should prove its commitment to the international rule of law by vigorously fighting its corner in the arbitration. The defeat of these liberal voices is usually interpreted as an inevitable effect of the nationalists' grip on power under President Xi Jinping.

In a significant concession to those on the losing side of the argument, however, China published a position paper setting out its objections to the jurisdiction of the tribunal and formally conveyed this to the tribunal which treated it as ‘effectively constituting a plea on jurisdiction’.

This novel form of ‘non-participating participation’ must be seen against the backcloth of a strategic ambition by China to develop a greater mastery of international law. At an important meeting just two months earlier, the Communist Party called for China to strengthen its ‘discourse power and influence in international legal affairs’ and use legal methods to safeguard its ‘sovereignty, security and development interests’.

Our research team at Chatham House has been tracking impressive steps by China to realize this goal, including new government decision-making machinery designed to promote compliance with international law, a hiring spree of international lawyers and new advisory committee for the Ministry of Foreign Affairs, promotion of scholarship and efforts to show norm leadership especially in ‘new domains’ of international law such as cyber law, and a training programme to share growing Chinese international law expertise with the global South.

We know from Chinese colleagues that maritime disputes are a major impetus for this drive. For years, the Chinese government has fretted about its low capabilities in the international legal field, compared with other permanent members of the UN Security Council and regional rivals such as Japan. Now, impelled by the need to protect its strategic interests in the South China Sea and elsewhere, it is doing something about it.

It may seem paradoxical in light of its bullish attacks on the Philippines and even the tribunal itself, but China's boycott of the arbitration should also be seen as a manifestation of its low confidence in its own capacities in the realm of international law. Speculation is rife that the leadership lacks faith in its ability to convince the tribunal of the legal validity of its controversial ‘nine dash line’ demarcation of China's rights in the South China Sea.  

In the arbitration and otherwise, China has avoided clarifying the precise legal basis and implications of its ‘nine dash line’ claims while sponsoring a vast industry of academic studies to support its position.

In the meantime, China is playing to its strengths, including its deep pockets, in pursuing an extrajudicial approach. An audacious programme of land reclamation and militarization of atolls and escalating patrols and exercises in disputed territories is a clear effort to alter ‘the facts on the water’. And in recent months it has choreographed statements of political support for its South China Sea claims from a motley crew of states with economic ties to China.

While China's rejection of the South China Sea arbitration is true to form for a powerful state that, like its great rival the United States, is generally ill-disposed towards binding international dispute resolution processes, it is not inconceivable that this approach will give way when China becomes more confident in its ability to play and win at ‘law fare’, as we are already seeing in the context of World Trade Organization disputes. Until then, in time-honoured fashion, Beijing is biding its time, plugging its skills gap and hoping it can shake off mounting reputational damage from its petulant spurning of these proceedings.

To comment on this article, please contact Chatham House Feedback




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How Trump and His Allies Have Run With Russian Propaganda

The concept is straight from the Soviet playbook: Plant false information and use it to influence the attitudes of another country’s people and government. This “active measures” technique from the Cold War era appears to have been resurrected with alarming success by the Kremlin in its attack on the 2016 presidential election—and has been echoed in tactics used by President Donald Trump and his associates, according to Clint Watts, a senior fellow at the Foreign Policy Research Institute.

“Part of the reason active measures have worked in this US election is because the commander in chief has used Russian active measures at times against his opponents,” Watts, a former FBI agent, recently testified to the Senate Intelligence Committee.

Key to this equation have been RT and Sputnik international, two Russian state-sponsored news outlets. Both reach only relatively small audiences in the US (RT is estimated to reach about 8 million people via cable television), but their impact has been magnified greatly online, with their stories reposted on what Watts calls “gray” conspiracy sites like Breitbart News and InfoWars. Twitter bots and other social media accounts further amplify the stories. And in several cases, Trump or his associates have directly cited phony Russian propaganda in a speech or interview. Here are some examples:

A false report of a terrorist attack at a NATO base in Turkey: Last July, RT and Sputnik each reported on a fire at the Incirlik base, framing it as potential sabotage. Pro-Russian and pro-Trump Twitter accounts spread and magnified the false reports, but mainstream news organizations didn’t pick up the report because it wasn’t true, as Watts explained in a piece for the Daily Beast. Yet, in mid August, Paul Manafort—Trump’s campaign chairman at the time—escalated the story to a terrorist attack, complaining on CNN that US media outlets were not adequately covering it. Politifact debunked Manafort’s claims, noting that Turkish authorities had reported small, peaceful demonstrations outside the base, but no actual assault on the base.

The case of the phony Benghazi email: On October 10, Wikileaks released a batch of emails hacked from campaign chairman John Podesta’s email account. About 5 pm ET that day, Sputnik News published a story about leaked Clinton campaign emails with the headline “Hillary confidante: Benghazi was ‘preventable’; State Department negligent.” Roughly an hour later, Trump told supporters at a rally in Pennsylvania that Clinton ally Sidney Blumenthal had called the Benghazi attack “almost certainly preventable.” “This just came out a little while ago,” Trump said. Those words weren’t actually Blumenthal’s and Sputnik later deleted the story – but by then the headline had spread far and wide.

False claims of pervasive voter fraud: RT has been attempting to delegitimize the American electoral process since 2012 by calling the U.S. voting system fraudulent, according to the declassified version of the report the Director of National Intelligence released this past January. In his Senate testimony, Watts called this the “number one theme" pushed by Russian outlets. In October 2016, a Kremlin-controlled think tank circulated a strategy document that said Russia should end its pro-Trump propaganda “and instead intensify its messaging about voter fraud to undermine the U.S. electoral system’s legitimacy and damage Clinton’s reputation in an effort to undermine her presidency,” according to a Reuters investigation

That same month, Trump pushed hard on the theme that the election was rigged; on Oct. 17 Trump tweeted “Of course there is large scale voter fraud happening on and before election day.” The sources his campaign pointed to were all debunked by Politifact, which noted that Trump had also tweeted in 2012 about dead voters delivering Obama’s win.

The Swedish attack that wasn’t: Trump’s strategy of running with false information didn’t stop when he won the election – and hasn’t been limited to Russian-owned media properties: He’s also used Fox News reports in a similar way. In February, Trump appeared to imply at a Florida rally that a terrorist attack had occurred the previous night in Sweden. Sweden itself had no idea what he meant and the Swedish Embassy reached out to ask for clarification. Twitter users, including many Swedes, ridiculed Trump’s statement, with references ranging from IKEA to the Swedish Chef character from the “Muppets.” Trump later said that he was referring to a Fox News story on violence allegedly perpetrated by refugees. That report, which aired the night before Trump’s rally, did not mention a specific terror-related attack; it focused on reports that rape and gun violence had increased since Sweden began taking in a record number of refugees in 2015.

Wiretapping claims pushed by a Fox News personality: In March, even though Trump's claim about Obama wiretapping Trump Tower had been directly debunked by top US intelligence officials, the president seized on a baseless claim by Fox News analyst Andrew Napolitano that British spies had wiretapped Trump at former President Obama’s request. Fox News later disavowed Napolitano’s statement. Trump continued to repeat his conviction that he’d been wiretapped, even though American and British intelligence officials insist there is no basis for the claims.

The murder of DNC staffer Seth Rich: Trump allies recently pushed another story that started as a conspiracy theory online and was fueled by Russian news outlets. Fox’s Sean Hannity aired several segments focusing on the unsubstantiated claim that Rich was behind the Clinton campaign email leaks and then murdered for his actions, even though police have said he was likely killed in a robbery attempt. When the claims were thoroughly debunked, Fox retracted the story from its website – but not before it had been spread by Trump ally and former House Speaker Newt Gingrich. Even after Fox pulled the story, Gingrich told the Washington Post, “I think it is worth looking at.”

In his Senate testimony, Watts noted that Trump is vulnerable to further manipulation by the Russians: He warned that Russian-linked Twitter accounts are actively trying to engage the president by sending him conspiracy theories. “Until we get a firm basis on fact and fiction in our own country, get some agreement about the facts,” Watts said, “we’re going to have a big problem.”




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