Breaking the South China Sea stalemate

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I GREW up in a remote small village of Catanduanes, an island-province on this side of the Pacific where we had no court of law nor even a village cell to detain those who disturbed the peace. By necessity, we were obliged to maintain a zero crime rate. But neighbors and spouses still quarreled, sometimes violently, and whenever this happened, the parties would come to my father, who had a reputation for being a just and honest man, to conciliate or arbitrate. He would talk to the parties, ask a few questions, and then advise them to overlook each other’s defects and compose their differences. Somehow it always worked.

I recall this particular detail in my early youth as I try to understand the arbitration case before the Permanent Court of Arbitration, at The Hague, between the Philippines and China on their dispute over certain marine features in the South China Sea (unilaterally renamed West Philippine Sea by the previous Aquino government). Our government had asked the court to arbitrate, and it has ruled in our favor, so most of us are ecstatic about it. But China has refused to be bound by the ruling, saying it never recognized the court’s jurisdiction nor the process itself.

Why is this a mess?
I cannot seem to understand why my late father’s simple way of arbitrating petty domestic quarrels never failed, while this expensive and elaborate international process has only produced a stalemate, a terrible mess. As a citizen, I join my countrymen in welcoming the ruling which, as far as they are concerned, puts our giant neighbor in a more manageable place, but as a just and honest man, I want to be sure we stand on solid ground and can, with a clear conscience, insist on China’s compliance with the verdict. I would like to be guided by Senior Associate Justice Antonio Carpio’s highly instructive discourses on the subject, but there are a few minor items we cannot afford to trifle with.

For starters, I don’t believe the Aquino government was candid enough about everything the public needed to know about the arbitration process. For one, contrary to what the public has been led to believe, the PCA is not a real court but a mere provider of dispute resolution services to the international community; an intergovernmental organization which began in 1899, but not an organ or institution of the United Nations, which was founded only in 1945. It is said to rent space at the Peace Palace, at The Hague, a building owned by the Carnegie Foundation, where the International Court of Justice is headquartered; but it has nothing whatsoever to do with the World Court.

What’s the real cost?
The government also never told the public how much the arbitration would cost the Filipino taxpayers. The Constitution provides that no money shall be paid out of the Treasury except in pursuance of an appropriation made by law, yet no appropriation has been disclosed for this particular purpose. One report says that on lawyer’s fees alone, the government has spent $30 million (or P1.4 billion). It was supposed to split the total cost of the entire process with the other party, but since the other party did not participate, then it must have absorbed the entire cost. How much then is it? Are any foreign donors involved?

On top of the large number of lawyers and experts the government sent to The Hague, it engaged the services of noted foreign lawyers led by the famous Harvard professor Paul Reichler, who represented Nicaragua in its celebrated case in the ICJ against the United States in the 1980s. There was understandable excitement about Reichler’s formidable skills which helped Nicaragua win its case against the US, for supporting the Contras in their rebellion against the Nicaraguan government and for mining Nicaragua’s harbors.

Nicaragua vs the US
But there was hardly any mention of the fact that the US refused to participate in the proceedings after the Court rejected its objection questioning the Court’s jurisdiction to hear the case, and refused to comply with the judgment embodied in resolutions before the UN Security Council and the General Assembly in 1986. The judgment commanded the US to pay actual compensation to the Nicaraguan government. Shouldn’t the public have been forewarned that like the US, China could simply ignore the arbitral ruling should it lose?

As recorded in Wikipedia, the World Court found the US in breach of its obligations under customary international law not to use force against another state, not to intervene in its affairs, not to violate its sovereignty, and to interrupt peaceful maritime commerce, and in breach of its obligations under Article XIX of the Treaty of Friendship, Commerce and Navigation signed between the two countries in Managua on Jan. 21, 1956.

But from 1982 to 1985, the US vetoed the Security Council resolution urging full and immediate compliance with the ICJ judgment; on Oct. 28, 1986, it imposed a final veto on the measure before the Security Council. France and the United Kingdom, two permanent SC members with veto powers, together with Thailand, abstained during the voting. On Nov. 3, the same resolution was brought to the UN General Assembly and approved with only the US, Israel and El Salvador voting against it. Still the US refused to pay the fine.

Then-US Permanent Representative to the UN Jean Kirkpatrick explained that the World Court was a “semi-legal, semi-judicial, semi-political body, which nations sometimes accept and sometimes not.” The common impression about superpowers elsewhere is that they cannot be bound by penalties and sanctions; they decide what international law is, and what it is not. The US never paid actual damages to Nicaragua; the burden was lifted from the shoulders of the US by action of the Violeta Chamorro government after the defeat of the Sandinista President Daniel Ortega in 1990. The US-supported government repealed the law requiring it to seek compensation from the US for its role in the Contra revolt, and in Sept. 1992, withdrew its court complaint against the US.

China’s non-involvement
Another critical point not well-appreciated by the public is that although the Philippines was eager to submit to the arbitral process, China rejected it from the very beginning and refused to participate. Thus the arbitration proceeded with only one party present, and China’s side was never heard. Against the 7,000-page submission of the Philippine government, there is not a single page from China defending its position on the “nine-dash line.” I don’t believe that as a nation that subscribes to the rule of law and equity, we could adopt this as our new standard of fairness.

As a former senator, I had made my own modest contribution to the internationalization of this issue, when I thought it was the right thing to do. In some Inter-Parliamentary Union (IPU) Conferences, and the Asia Pacific Parliamentary Forums abroad, I had clashed with Chinese and Japanese delegates a few times on this issue. But I don’t believe it is fair to compel China to accept a ruling in a process whose validity it had rejected from the very beginning.

Quoting some studies, Carpio says that in many cases governments that had initially declared open defiance of an adverse ruling by an international tribunal eventually complied with it, in the end. We could hope that this would happen to China. But it does not seem a likely response to the chorus of voices from the US, Japan and European governments, calling on Beijing to comply with what it considers an international conspiracy. Now, if the parties to the dispute and the long line of kibitzers work together to ease the tension and create a better climate for diplomacy, bilateral negotiations between Manila and Beijing could hopefully achieve that which the PAC ruling could not.

This is my hope. As we finally ended the standoff on Scarborough Shoal, we must now break the new stalemate.

FVR as special envoy
President DU30’s choice of former President Fidel V. Ramos as special envoy to the Xi Jinping government could be an excellent opening move. FVR has superb personal relations with the leaders of China and Taiwan, which for the first time since 1949 have found common cause against the PAC ruling. While Beijing raged in the media, Taiwan sent a warship to Itu Aba (or Taiping) in the Spratlys, as a reflex reaction to the PAC’s attempt to redefine the inhabited island, with at least 11 springs of fresh water, as a “rock.”

FVR’s father, the late former Foreign Secretary Narciso Ramos, was dean of the diplomatic corps in Taiwan for many years until the Philippines cut off relations with the island-republic when it recognized the People’s Republic of China under the “one-China” policy in 1975. At the same time, having been educated at West Point, fought in Korea and led the Philippines’ civic action group in Vietnam side by side with the Americans, Ramos is seen by many as someone who will not hurt the Americans in any way just to please Beijing.

Ramos is the oldest of the four surviving former Filipino Presidents. As he engages with a government, culture and civilization that put a high premium on wisdom and age, he could probably use his to full advantage.

fstatad@gmail.com

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11 Comments

  1. It’ s the US and Japan that orchestrated the whole farce. Their purpose is to portray China as an outlaw albeit the so-called arbitration court was led a by infamous right-wing Japanese politician and has no jurisdiction on sovereignty. Instead of being humiliated, China stands taller than ever to defend its own values, sovereignty and great character of no succumbing to the western pressure and their political, cultural, ideological and spiritual rule of the world.It’s truly an independent and great country. I have never been prouder than being a Chinese citizen. We will never accept, let alone comply with the unlawful and farcical ruling to take away our sovereignty and freedom as a great civilization and people who have their own will and ways of thinking sophisticated than the Western propaganda can even imagine.

  2. Aquino III as a puppet of Uncle Sam do what his master ask him to do. Uncle Sam is the trouble maker in SCS.

    • China took what rightly belong to us and now you blame Japan and the US? Common sense please.

  3. Mariano Patalinjug on

    Yonkers, New York
    18 July 2016

    While in fact virtually the whole world–except conspicuously China [the loser] and Russia–hailed the favorable ruling [okay, technically “award”]–of the Permanent Court of Arbitration in The Hague, Manila Times columnist FRANCISCO S. TATAD goes to great length to minimize its legal as well as international implications.

    The legal implication is that China, a signatory to the 1982 UNCLOS like the Philippines, has just suffered a stunning “defeat” not only that it lost the territorial-dispute case the Philippines lodged against it, but also because the PCA ruled that its arbitrary “Nine-Dash Line”–without doubt clear evidence of its hegemonic designs in the South China Sea– was clearly ruled “without basis.”

    Even if China continues to refuse to honor and obey the “Award,” every day that passes without her yielding, China can and only will harden its reputation as an uncivilized nation which has no use for a rules-based international order, that it is an anachronism among civilized nations in that it adheres to the Law of the Jungle, with its mantra that “Might makes right!”

    It won’t be long before the world will condemn China as a Pariah, or even as a Rogue State.

    MARIANO PATALINJUG
    patalinjugmar@gmail.com

  4. Maribel Calanda on

    No to Ramos, I can see him as a traitor all the way. He is a traitor to Marcos. He is a traitor to the Filipino people by his approval of so many IPPs that made our electricity costs higher than what it used to be. His only project the Expo in Pampanga is a big flop and charges of irregularities and anomalies abound during his term. He even went mad at Erap for closing the project. No one is visiting the place and yet he wants the government to continue with it even to the point of operating at a loss. His mind cannot be at par with his cousin, Ferdinand Edralin Marcos.

  5. francis liew on

    The Manila Times is to be credited for letting blossom the truths in this article. Let the people judge whether the actions taken by the government had been fair or otherwise. Western press such as CNN, BBC and the NYT among others have nefarious interests at heart and seldom tell the truth, the who truth. Most of the time they spin whatever facts they have so that it comes out garbled. For instance, China 9 dotted lines is taken as a threat to 5 trillion dollars worth of annual trade that passes through the SCS. No where has China make the slightest indication that it will embargo ships passing through the SCS. To do so would be to cut its nose to spite its face as most of the trade passing through the SCS is done with China. The West through these sleazy news media have make a big play that China must comply with international court rulings if they want to live with international rules. They never said that the PCA is not an international court sanction by the UN. That the PCA operates at the Hague together in the same building as ICJ means nothing. The building is owned by the Carnegie foundation and it rent space on a commercial basis to sundry and all. Now when the real ICJ sanction by the UN ruled against the US over the Nicaragua case, none of these so called truthful news media like the BBC, CNN or the NYT made a bleat. They knew the US was guilty but for nefarious reasons thought it is best to keep silent. Like I said at the beginning, we have to credit the Manila Times for venting the truth through Filipinos clever and wise enough to know the difference between spin and outright lies. It is hope that with such articles, more Filipinos and even foreigners like me get the real picture.

  6. Not FVR please. He committed the “original sin” of giving away Panganiban (Mischief) Reef. Kakantahan lang siya Xi ay bibigay na yan. Gaya nang ginawa ni dating president Hu.

  7. Nice article.

    “The supreme art of war is to subdue the enemy without fighting,”- Sun Tzu in the Art of War. Perhaps, there is a lesson to be learned by understanding rather than demonizing China.

    What is the treasure that China really needs? Some tiny islands? Natural resources? Cheap Filipino labor? Perhaps not. Maybe what China really needs most today is respect as a true global power. Does China understand this? Perhaps the Philippines can help them find that path as a beneficiary of that power.

    And, what is the treasure that the Philippines really needs? More Pinoy Pride from stepping on the tiger’s tail? Perhaps not. Perhaps what the Philippines needs most are strategic international relationships that truly get to the heart of the country’s problems – with the aid of an Asian superpower.

    Is the best model the West’s practice of challenge and confrontation? Or would it be more useful for the Philippines to sit down with China as an old friend and speak of relations that existed long before the Spanish. And, to do so humbly as a friend in need.

    Perhaps, you start with the smallest deeds first. Agreements to allow fishermen to fish, to help curtail the illegal drugs coming from China, to offer just and fair rights to OFW’s. Simple first steps to rebuild the relationship that benefits the little guys from the Philippines and builds respect for China. You then hold out these as models for the rest of the world to follow.

    Then perhaps, you seek out bigger deeds. Perhaps strategic (rather than random and piece meal) trade relationships that build the country’s infrastructure and industry. The Philippine’s can offer land, labor and resources. But, perhaps it is wiser to abandon the West’s economic models that destroy the environment and build a trade relationship that helps the Philippines emerge as a modern, environmentally sound, and progressive nation. This helps China present itself as a benevolent neighbor (and probably learn a lot as well).

    I am not an international trade expert or a Supreme Court judge. But I do know that war does not accomplish much. And, that there may be better ways to tame the tiger than by using a whip. The problem might be more solvable by focusing on what can be done, rather than what cannot be done. And, doing so by building friendships than by creating enemies.

    • Wolfgang Struck on

      Maraming salamat. This is a wonderful reaction to a so-so piece of information from a man of the best President this country ever had who should know better. Ramos my gully! The President with the licence to steal. Come on, Mr. President, check your horses.

      Oskar

    • What China expected was an apology from Aquino on the Luneta massacre …. WWI and WWII resulted because of pride …. leaders failed to apologize when an apology was expected ….

  8. A politician in the Philippines only does two things either steal from the people, or bow down to an aggressor bend over and let the aggressor do whatever it wants to. It comes to no surprise that the country has been invaded by too many countries both economically and militarily. All this done on behalf of the Filipino people. Isn’t it time the Philippine government and its leaders start standing up for itself? And its people. Why can’t these politicians put the peoples interest in front of their own and for crying out loud feel the back of your body-its called a back bone. You claim to not want help from US and yet no one will help you if you get invaded as you are now; even Japan or Korea who is more powerful than you knows that unless you want to sell your country to the Chinese-maybe thats it-let the next invader rape the country and its resources.