The Philippines’ Triumph: Right Over Might
By Gilberto C. Teodoro, Jr. / July 19, 2016 / The Diplomat
We have witnessed in the past decade the worrisome evolution of international conflicts accompanied by deepening acrimonious divisions, exchanges of harsh rhetoric, provocative maneuvers, and the miseducation of people about such conflicts’ true nature, origin, and potential adverse consequences.
On July 12, 2016 the world was afforded a momentous opportunity to take a new path toward the peaceful and principled settlement of international disputes. An Arbitral Tribunal convened pursuant to the United Nations Convention on the Law of the Sea (UNCLOS) rendered an Award in ‘The South China Sea Arbitration (The Republic of the Philippines versus The People’s Republic of China). The award reiterates the primacy of international law particularly UNCLOS in governing the maritime entitlements and other territorial rights and obligations of littoral States.
Without delving into the merits of the case vis-à-vis the Philippines and China, the decision does lay down important principles in international maritime dispute resolution and does provide states with a fair, transparent, and independent means of settlement. In the interest of fairness and cognizant of its role defined by UNCLOS, the Tribunal took pains in determining the principal question of its jurisdiction over the case by requiring extensive submissions from the Philippines and by thoroughly questioning witnesses and experts. After doing so, it promulgated an award which clearly ruled on the Philippines’ “sovereign rights in its exclusive economic zone” while carefully reiterating that it did not “rule on any question of sovereignty over land territory and does not delimit any boundary between the parties.” We cannot ignore, however, the finding by the Tribunal that China’s recent large-scale land scale reclamation and construction of artificial islands in the Spratlys together with other harmful fishing practices violated its obligations to preserve and protect the marine environment, which is a duty imposed by U NCLOS. Also the repeated approach at high speed by Chinese law enforcement vessels and their attempt to cross ahead of Philippine vessels created a serious risk of collision and danger to Philippine ships and personnel, and thereby violated the UNCLOS and the Convention on International Regulations for Preventing Collisions at Sea.
China, although a signatory to UNCLOS, stated repeatedly that “it will neither accept nor participate in the arbitration unilaterally initiated by the Philippines.” It has characterized the filing of the arbitration case by the Philippines as “baseless” and “an act of bad faith” and has dismissed the Court as a “puppet” of external forces, claiming that not one of the judges was Asian and therefore could not possibly understand the issue. China insists that the issue has to be resolved solely through bilateral talks between the claimant parties. More recently Chinese Vice Foreign Minister Liu Zhenmin stated that China viewed The Hague ruling as “merely a pile of invalid papers which will never be observed.” “I kindly advise you to throw the papers concerning the arbitration into the rubbish bin, put them aside on book shelves, or put them in the archives. The disputes will eventually have to return to the table for negotiations and China hopes the Philippines to return to the track of bilateral negotiations,” Liu added. Taiwan also chimed in, its President Tsai Ing-wen stating that the Award “gravely harmed” Taiwan’s rights in the South China Sea.
We think that it is precisely the fairness and impartiality of the process chosen by the Philippines to vent its claims that China objects to — a process whereby the principal advantage of a state is not its economic or military strength but the legality of its claims and the sole basis of which is an international statute of long standing to which both parties were signatories. We believe that China, contrary to its stance, should embrace the process and work with it in articulating its side, in order for it to fulfill its obligations as a major power. This will have twin benefits — it will further the institutionalization of UNCLOS as the law of the sea on hand, and it will prove China’s commitment to the rule of law to the rest of the world, which badly needs such commitments by major powers. Thus it is important for China to realize that its hardline position, with the accompanying shrill rhetoric, does the world no service; on the contrary it adds significantly to the list of brewing tempests worldwide.Read more…