WHEN the UN Permanent Court of Arbitration (PCA) finally handed down its verdict (The Hague tribunal calls it an award), the whole world strained to find the words that would best describe what had just happened.
The media and international community chorused in saying it was a historic legal declaration.
China called it “a farce.”
The Philippines naturally hailed it as a victory and “milestone decision.”
The US called it an opportunity for a rules-based international order in the South China Sea.
Japan, Vietnam, and most of Europe hailed the ruling.
The New York Times described it as a “sweeping rebuke of China’s behavior in the South China Sea.”
I like best the characterization offered by one professor of political economy at Leiden University, in the Netherlands. He said it could be “a transformative moment for the region.”
Victory and vindication
It will take a while before the world settles on a single characterization of the verdict. It will take time before it can impact the situation in the disputed waters. First, we will hear the drums of confrontation. Then we will hear the voice of international opinion calling for respect for the rule of law. And then will follow the inevitable and painstaking negotiations
But for now, we need not mince words. We should celebrate The Hague award as victory and vindication for our country. To the world, we, the Philippines, are the one who made it happen by going to court, by arguing persuasively in court, and by winning the support of world opinion.
In a supreme irony, former President Benigno BS Aquino fell 12 days short of seeing firsthand what could be the most significant achievement of his presidency. He was the architect and decision-maker behind the filing of the arbitration case. It was his obstinacy that made our Foreign Affairs Department press on with the case, despite China’s equally obstinate resolve to defy it. If the Hague award proves to be fecund and far-reaching—diplomatically and economically—the nation will owe Aquino plenty. This may be his legacy, better than DAP, Mamasapano, and all those abominations during his watch
Highlights of the award
The language of the award could not be more favorable for the Philippines, and more unfortunate for China.
As the case developed over the past two years, it was viewed as an important crossroads in China’s rise as a global power and in its rivalry with the United States. It was the first time the Chinese government had been summoned before the international justice system.
Reading the decision, especially the part where it renders and summarizes its award, I felt like cheering each point, as though I were watching a ball game.
Here are the highlights of the award:
First, the award was unanimous; there was no dissenting vote.
Second, the award is final and binding, as set out in Article 296 of the Convention (UNCLOS).
Third, on the issue of historic rights and the “nine-dash line,” the tribunal concluded that there was no legal basis for China to claim historic rights to resources within the sea areas falling within the nine-dash line.
Fourth, with respect to entitlements to maritime areas and the status of features, the tribunal concluded that none of the Spratly Islands is capable of generating extended maritime zones. None of the features claimed by China was capable of generating an exclusive economic zone. Consequently, the tribunal found that it could—without delimiting a boundary—declare that certain sea areas are within the exclusive economic zone of the Philippines.
Fifth, on the lawfulness of Chinese actions, the tribunal found that China had violated the Philippines’ sovereign rights in its exclusive economic zone by (a) interfering with Philippine fishing and petroleum exploration, (b) constructing artificial islands, and (c) failing to prevent Chinese fishermen from fishing in the zone.
Sixth, on harm to the marine environment, the tribunal found that China had caused severe harm to the coral reef environment and violated its obligation to preserve and protect fragile ecosystems and the habitat of depleted, threatened, or endangered species.
Seventh, on the aggravation of the dispute, the tribunal held that China’s recent large-scale land reclamation and construction of artificial islands was incompatible with the obligations on a State during dispute resolution proceedings.
In sum, the award was sweeping.
“It’s an overwhelming victory. We won on every significant point,” said the Philippines’ chief counsel in the case, Paul S. Reichler. “This is a remarkable victory for the Philippines.”
No mechanism to enforce decision
While the decision is legally binding, there is no mechanism for enforcing it, and China, which refused to participate in the tribunal’s proceedings, reiterated on Tuesday that it would not abide by it.
Speaking at a meeting with European leaders, President Xi Jinping was defiant. He reasserted China’s claim to sovereignty over the South China Sea “since ancient times.”
“Xi Jinping has lost face here, and it will be difficult for China to do nothing,” said Bonnie S. Glaser, a senior adviser for Asia at the Center for Strategic and International Studies, in Washington. “I expect a very tough reaction from China, since it has lost on almost every point. There is virtually nothing that it has won.”
The Philippines filed its case in 2013, after China seized a reef over which both countries claim sovereignty. There has been speculation that Beijing might respond to the decision by building an artificial island at the reef, Scarborough Shoal, a move that could set off a conflict with the Philippines and its treaty ally, the United States.
But some senior Chinese officials say that the situation in the SCS “must cool down.”
China is hosting the Group of 20 Summit meeting in September, a major international forum that it hopes will proceed without the distraction of conflict.
In a surprising opinion article on the India Today website over the weekend, a professor of international relations at Fudan University in Shanghai, Shen Dingli, wrote that Beijing needed to “revise its stance” and “employ a more effective approach” that maintained China’s “long-held ‘smiling’ image.”
Legal order as most positive outcome
Experts in international law say that negotiations could be the most positive outcome of the arbitration case.
China is not expected to vacate or dismantle the artificial islands it has built. That makes the legal arguments important, analysts said.
“In a way the tribunal will not solve the South China Sea issue but will heavily influence future negotiations,” said Markus Gehring, a lecturer in law at Cambridge University. “The tribunal rulings will move the goal posts toward the Philippines and the smaller countries.”
US officials say the ruling will narrow the geographical scope of territorial disputes in the South China Sea and could provide an impetus for fresh diplomacy among the claimant nations. A senior White House official for Asia policy stressed the importance of upholding the “rules-based international order” in the South China Sea.
The world cannot have a different set of rules in the South China Sea from that in other sea bodies.
If a legal order in SCS is the fruit of its arbitration case, the Philippines should feel gratified for its pains.