LET’S get our perspectives straight on the country’s arbitration case against China as the Permanent Court of Arbitration (PCA) at The Hague in the Netherlands holds hearings on the case this week from Tuesday night.
It is a hearing not on the merits of the Philippine complaint but on whether the arbitration court has jurisdiction over the case.
It is the PCA, and not the International Tribunal on the Law of the Sea (ITLOS), that is conducting the jurisdictional hearing, because China’s refusal to take part in the proceedings prompted the need for compulsory arbitration.
It is not President Aquino who is the party to this suit, although he instigated and fueled it. Instead, it’s the Filipino people and the Philippine Republic – which means all of us, Chinese-Filipinos included.
The international community and the whole world must see that there is no Filipino division or partisanship on this issue. All Filipinos are complainants before the tribunal, seeking recognition and vindication of our nation’s rights under international law.
We stand behind our panel
And we all stand behind our panel as they argue our case with all the legal arguments they can muster.
The high count and high quality of members in the Philippine panel, which also includes, in addition, high-priced American lawyers hired by our government, attest to our confidence in the strength of our case and in the rightness of bringing the case to the United Nations.
Arguments, of course, are not won by numbers in court; it is won by the soundness of arguments. We should feel confident that our panel, with its experience and many official titles, has what it takes to carry the day. At the very least, the international community should see how much we Filipinos care about this case.
This stands in marked contrast to China’s position, which wavers between indifference and worry. As its policy and strategy, China has made the calculated decision not to participate in the hearings. It has also decided out-of-hand not to accept any decision that will be favorable to the Philippines.
Despite the posturing, China in truth is worried about what could happen in the weeklong hearings.
In a position paper, China questioned the tribunal’s jurisdiction over the matter. In response and in a little-noticed decision made in April, the tribunal acknowledged China’s objections and announced that a hearing on jurisdiction from July 7-13 would be held first.
This is why our government felt compelled to field a top-level team for the jurisdiction hearings. In the jurisdiction hearings, the burden of persuading the tribunal falls wholly and squarely on our panel. China will not be arguing to the contrary.
In order to fully present our case, which is backed by thousands of pages of historical documents, we must win the jurisdictional issue. The arbitration court must rule that it has jurisdiction over the case.
The hearings will be closely watched by Asian governments and Washington because of the tensions in the South China Sea, especially in the Spratlys. While professing indifference, China has been following developments in the case closely. Through the Chinese embassy at The Hague, it has established a formal line of communication with the tribunal.
China’s statement that it will reject any ruling favoring Manila does not faze our delegation. One member, Supreme Court Senior Associate Justice Antonio Carpio, said before departure for the Netherlands:
“If we win, all those reclamations of China are illegal and China has no right to stay there and China must vacate, but of course there’s the big problem of how to enforce the ruling.”
In that eventuality, the Philippines can then go “to the world community” by sponsoring a resolution at the United National General Assembly urging China to follow international law.
Battle lines are clear
The lines of the jurisdictional battle are clear. If the arbitration court rules that it has jurisdiction on the case, the case moves on to the presentation of the merits of our complaint. That’s where the deep bench of our panel will come in.
On the other hand, if the PCA rules negatively, then that’s the end of the arbitration case; we return to square one – and to the hard reality of China’s massive reclamation works in the disputed area, which are of grave concern to the US, Japan, the European Union and the Association of southeast Asian Nations (Asean).
Raising alarm over China’s actions in the disputed areas and its illegal claim to all of the South China Sea has been the chief objective of our diplomacy in this dispute. In this objective we have succeeded to some extent.
Clearly, this is a David-vs-Goliath struggle, if reckoned in military and economic terms. But on the diplomatic and public-relations front, David has a potent slingshot, with many friends rallying behind him.