FOR those who, looking anxiously at the Chinese Goliath, were in despair that our territorial case against China may be drowning, there has come a lightning bolt of good news – oddly in the middle of our observance of the feastday of the dead.
This Halloween, we Filipinos have something to cheer about, while our Chinese neighbors have something to rue.
At the Hague in the Netherlands, the international arbitration tribunal ruled on Thursday, October 29, that it can take on a case between China and the Philippines over disputed territory in the South China Sea, overruling objections from Beijing that the arbitration body has no authority to hear the case.
It is by no means a verdict of victory; but the tribunal’s assertion of jurisdiction is already a victory for our side, even if only psychological or moral. The lightning bolt will also jolt Beijing. It represents a significant step forward in our strategic decision to submit the issue for arbitration as a matter of international law – in contrast to the Chinese position of merely insisting that it has sovereignty over the disputed sea. We have a long way to go before this dispute is over.
An arbitration decision in 2016
In filing the case before the tribunal in The Hague in January 2013, the Philippines contended that China’s massive territorial claims in the strategic waters do not conform with the 1982 UN Convention on the Law of the Sea (Unclos) and should be declared invalid. The Philippines also asserted that some Chinese-occupied reefs and shoals do not generate, or create a claim to, territorial waters.
In its ruling on Thursday, the tribunal said it has authority to look into seven issues raised by the Philippines against China but added that its jurisdiction over seven others “will need to be considered in conjunction with the merits.” It asked Manila to clarify one other issue. It said it has set hearings and expects to hand down a decision on the case next year.
China, the Philippines and four other governments have overlapping claims across the vast South China Sea, with Beijing claiming it has sovereignty over virtually all of the waters.
Some of the disputed areas are believed to sit atop vast undersea deposits of oil and gas and straddle some of the world’s busiest sea lanes.
The tribunal, which conducts its hearings behind closed doors, said the Philippines has stressed it is not asking arbitrators “to decide the question of sovereignty over maritime features in the South China Sea that are claimed by both the Philippines and China” or rule on maritime boundaries in the region.
China has declared it would not take part in the arbitration, insisting on one-on-one negotiations with smaller rival claimants which analysts say would give it advantage because of its sheer size and clout.
China sulks on the sidelines
On December 7, 2014, China’s Foreign Ministry released China’ s position paper on the Philippines’ appeal to international arbitration over the South China Sea disputes. It was the first time that China outlined in detail its position regarding the case.
According to Xu Hong, the director-general of the Foreign Ministry’s Department of Treaty and Law, the Chinese government decided to release the paper to clear up misperceptions of China’s position. “Some people, who do not know the truth, have questioned China’s position of not accepting or participating in the arbitration. Some others, who harbor ulterior motives, have made … accusations or insinuations that China does not abide by international law,” Xu explained.
The crux of the position is that China does not believe that the arbitral tribunal has jurisdiction to decide the case.
More broadly, China rejects the notion that the UN Convention on the Law of the Sea (Unclos) can be used to decide South China Sea sovereignty issues, which Beijing maintains is at the heart of the Philippine case.
Case moves into series of hearings
With the question of jurisdiction decided by the tribunal last Thursday the case will move forward, regardless of China’s stated position.
The tribunal will conduct hearings on the case wherein interested parties like the Philippines will present their arguments in support of their positions. It hopes to issue a decision sometime next year.
Before the tribunal reaches a decision, the long-simmering disputes over the disputed waters will continue to strain relations in East and Southeast Asia, even sparking fears of a major conflict.
China’s move to undertake massive construction to transform at least seven shoals and reefs into islands in the Spratly Islands have ratcheted up tensions, and brought to the fore the danger of a face-off between the United States and China.
Just this week, a US guided missile destroyer sailed within 12 nautical miles (22-kilometer) of one of the China-built artificial islands to underscore Washington’s position that the geographic alteration would not allow the previously submerged reef to generate territorial waters.
The US Navy sail-past provoked angry Chinese reactions, but it was welcomed by America’s allies, including the Philippines, and was upheld by others like Vietnam, which has also been locked in a bitter territorial feud with China.
On Thursday, a Chinese Defense Ministry spokesman said the country’s military will take “all necessary” measures in response to any future US Navy incursions into what it considers its territorial waters around islands in the South China Sea.
The United States for its part said that the final decision by the arbitral tribunal — which is expected next year — would be legally binding on both the Philippines and China.
The US does not take a position on the competing sovereignty claims in the South China Sea, but it opposes coercion and wants all of the disputes to be resolved “peacefully, diplomatically and through international legal mechanisms such as arbitration.”
For the Philippines, it is a big deal that the arbitral tribunal responded favorably to its petition before the APEC summit of leaders convenes in Manila on November 17-20.
No leader – not President Xi, not President Obama, not even President Putin (who will be visiting as an observer) – will be unaware of the dispute and the tribunal’s decision.
All will see that on this great question, their host has shown skillful statecraft and adherence to the rule of law.