A transformative moment in the South China Sea

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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.

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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.

yenmakabenta@yahoo.com

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13 Comments

  1. Mariano Patalinjug on

    Yonkers, New York
    14 July 2016

    A member in good standing of the United Nations and one which is a Permanent Member of the exclusive UN Security Council, which China is, has to be a CIVILIZED nation.

    But that’s not the conclusion one can draw from China’s weird reaction to the July 12 ruling of the Permanent Court of Arbitration in The Hague in the territorial-dispute case which the Philippines lodged against it in 2013, because where China SHOULD have declared that it would honor and obey the Ruling, instead it condemned it to high heavens and even now continues to react like a wounded BULLY, writhing both in pain and fury.

    To the world’s possible consternation, it has even threatened to impose an ADIZ on the whole of the South China Sea–a completely insane move because that could be the trigger for a military confrontation with the United States which has made it more than abundantly clear that it has a vested national interest in keeping completely open international waters in the South China Sea through which an estimated $5 trillion in trade passes annually, including oil from the Middle East.

    MARIANO PATALINJUG
    patalinjugmar@gmail.com

  2. UNCLOS cannot bend it’s rules, what are not islands cannot be reinvented as islands neither claimed as sovereign territories. Otherwise there would be a serious chain reaction of international consequences. To understand let us imagine the tribunal had ruled the opposite, meaning favorable to China. That would give the green light for any bully state to reclaim fake islands anywhere they wanted and legitimize land grabbing (er. sea grabbing) from weaker neighboring states, raising global tensions over more and more territorial disputes possibly even WW-III, this would hasten fulfillment of Biblical End Time Prophecy, “…nation rising against nation and kingdom against kingdom” – Revelations.

  3. Security-wise, lost something big because we were denied an EEZ around Pag-Asa Island. Therefore, significant Chinese-held rocks that are beyond 200 nmi of Palawan, BUT within 200 nmi of Pag-Asa, were ruled to be within purely *international waters.*

    Thus ruled outside Philippine EEZ include:
    a) China-held Fiery Cross Ref, with airfield and port
    b) China-held Subi reef, with airfield
    c) Taiwan-held Taiping island, with airfield and port

    The ruling has just removed a legal impediment to China’s possession of 2 military-capable bases just 30 minutes flight from Puerto Princesa.

    Bases, surrounded by newly-UNCLOS-sanctioned international waters, where China can stage ASW, radar, planes, amphibious troops, and ships. (Does anyone remember from where the Lingayen invasion sailed in December 1939? Hint: not Japan)

    And the tribunal’s decision is final.

    ‘Transformative’ but not in a good way.

  4. The paragraphs after “In sum, the award was sweeping.” are awfully similar to the NY Times article that came out yesterday.

  5. sa mga mangingisda sa gilid ng west phi sea, mababalewala pagkapanalo natin dahil binenta na ni duterte Pinas sa china. im 100% sure of that. Duterte hates US a lot kya.. matuto na kayo mag saka.

  6. China would forever be the bully in the China Sea.

    But the decision could mold diplomatic opinions that would question the integrity and honesty of China in dealing with members of the United Nations. The world would be very critical of how China observes or ignores international treaties and agreements which it is a signatory.

    The Hague Tribunal, despite having no police power, gave a decision that highlighted China’s bullying tactics and it’s supreme arrogance after becoming a world military superpower.

    Military might is founded on the bedrock of economic might.

    Maybe, it’s annointed economic czars are still rookies who forgot that economic uncertainties created by external forces, wittingly or unwittingly, could force internal turmoil and encourage the politburo to pull its socialist reins again.

    Hi! Boo Hi!

  7. The South China Sea Arbitration is like an OLYMPIC Game..
    Philippines vs China… Philippines won the Gold Medal, Silver and Bronze for Taiwan and Vietnam if they will pursue the game.
    End of the game will leave a ZERO medal for China…
    I remember, during 2008 Peking (Beijing) Olympic, my japanese husband had asked me, why there’s not much filipino athletes competed in the Peking Olympic (only 15 filipino athletes) I simply replied, it’s bcoz, filipinos doesn’t want Peking (peke) Gold. And he laughs when I explained to him what Peking or Peke means in tagalog. China haaaaiiiz, when can you be genuine?

  8. This is the “beginning of the end” milestone of the Communist Party of China.

    China with its global economic power won’t be able to stop the demise of its communistic government.

    Its own people will be more powerful than its opaque government.

    No Communist government exists in the world today which does not suffer its people.

    But, because millions of Chinese people are now getting richer, the country will implode sooner than later into a democracy.

    Unless this transformation from governance by falsehood eventualize, China will never be a world power even if it is an economic powerhouse.

    The Philippines, though poor, is a peaceful country. It has no history of imperialism nor invasion of other sovereign countries.

    However, The Philippines with its Filipino people is a silent global power in spreading the love and triumph of the Immaculate Heart of the Blessed Virgin Mary worldwide.

  9. That’s why duterte should be careful in dealing with this. This is a hard earned victory for us and should not be wasted instead use it to our advantage. We can now also start upgrading facilities in pag-asa island and put some more military hardware there and other reefs and islets that we still have left should be occupied and armed. Duterte should also continue afp modernization and be prepared just in case. He should not trust the Chinese. Just look at what china did to Myanmar. They used to depend to china now suddenly Myanmar ousts the Chinese because the Chinese double crossed them. If duterte us desperate for economic development we can do that ourselves with reduction in corruption and help from the west.

    • In the 60’s, china land grabbed most of india land, First they make a unilateral and peaceful agreement..then suddenly,when china, already discovered the weakness of india, they forcefully took it, and the word, peaceful brothers and friend, they used to tell to indians, is the opposite..Kaya ingat sa china,,nakikipagkaibigan lang yan,,para malaman nila kung saan ka mahina at sasalakay sila ,,when times come. They did that in NEPAL, when Indian govt, refused to supply the oil,food, etc..China came in and told to Nepal Govt,,they will provide them what they need ,cheaper price…after china took control the business and there no competitor,,They jacked up the price 3 times and the people spoke and they kicked their leader, who make a connivance to China..and this is duterte are doing now also..china promised him a train,etc.etc