The Hague ruling: PH cannot rely on US backing

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HOWEVER the United States tries to goad China into accepting the ruling of the United Nation’s Permanent Court of Arbitration, in The Hague, what is certain is that the Philippines cannot rely on the Americans—or on our military alliance pact (the latest iteration of which is the Enhanced Defense Cooperation Agreement, or EDCA)—to test the limits of, let alone give teeth to the decision of the arbitral tribunal upholding the country’s sovereign rights over the disputed areas in the South China Sea.

The only peaceful and mutually beneficial outcome possible after The Hague ruling is one that allows the country to exploit the natural resources within its 200-mile exclusive economic zone (EEZ) while at the same time letting China retain a civilian (rather than military) presence in the South China Sea. This means a pragmatic solution whereby China can save face before the international community without totally disregarding the decision of the international court. That’s a tall order for the newly installed government of President Rodrigo Duterte.

Although China refused to participate in the arbitration—and has rejected the international court’s decision as “naturally null and void”—it cannot ignore the ruling altogether. Having ratified the United Nations Convention on the Law of the Sea (UNCLOS) on June 7, 1996, China is legally bound by the ruling of The Hague tribunal even though it chose to boycott the proceedings.

In fact, UNCLOS specifically allows the international court to make legally binding decisions despite the absence of one party. Article 9 (Default of Appearance) of Annex VII (Arbitration) states: “If one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case, the other party may request the tribunal to continue the proceedings and to make its award. Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings.”


Article 11 (Finality of Award) of Annex VII of UNCLOS also says that “the award shall be final and without appeal … and shall be complied with by all the parties to the dispute.”

Although the decision may be legally binding and final, there is no mechanism by which the country can compel China to comply with the ruling. But the Philippines can and should use this precedent-setting decision in international law as a valuable bargaining chip, both in the diplomatic front and at the negotiating table.

At a time when China seeks to assert itself as a global superpower, it cannot risk being seen as a regional bully by continuing the unilateral annexation of rocky outcrops and atolls in the South China Sea, now declared illegal under international law by virtue of The Hague tribunal’s decision. It would also be foolhardy for China to gamble away its political capital by flouting international law, especially in the Asian region where it wants to expand its “soft power.”

The challenge for the Duterte administration is to arrive at a settlement that will be in the best interests of Filipino people without banking on America’s “iron clad commitment to defending the Philippines” in its ongoing territorial dispute with China.

For one, the “freedom of navigation” operations conducted by the US Navy based on the “right of innocent passage” guaranteed by UNCLOS, which is obviously aimed at challenging China’s territorial claims in the South China Sea, rest on flimsy legal authority since the US has not even ratified the maritime treaty.

In fact, it is quite hypocritical for the US to demand that China follow international law while itself refusing to ratify the UNCLOS, together with the likes of North Korea, Iran, Syria, Libya, and Venezuela. The US expects China to abide by the rules on maritime disputes yet refuses to be bound by those same rules.

It’s no wonder then that China has called out the US for its two-faced stance.

“The US is always selective when it comes to the application of international law: citing international law when it sees fit and discarding international law when it sees otherwise. It keeps urging others to abide by the United Nations Convention on the Law of the Sea (UNCLOS) while refusing to ratify the Convention to this day,” said Chinese Foreign Ministry spokesman Lu Kang.

By refusing to ratify UNCLOS, the US has lost the “moral standing” to stand up to China with regard to its dispute with the Philippines. It is also becoming apparent that this is less about international law and more about America’s strategic rival, China, projecting power over maritime territory to push back against US dominance in the Western Pacific.

With The Hague ruling favoring America’s longtime ally in the Pacific, the US is going to step up the pressure on Beijing to justify both America’s “Pivot-to-Asia” policy as well as the creation of a network of military outposts and alliances throughout the region using the EDCA framework.

Ironically, while the US is demonizing China as an international bully, it has no qualms collaborating with Beijing, even holding military exercises with the Chinese armed forces, such as in the ongoing Rim of the Pacific (RIMPAC) Exercise 2016, in Hawaii. Using a two-pronged strategy of cooperation and confrontation, the US hopes to keep in check China’s rising global influence.

As a mere pawn in a global Game of Thrones, the Philippines ought to know that what is only truly “ironclad” are the interests of the world’s top superpowers—and leverage this to our advantage.

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13 Comments

  1. Joshua Schneider on

    I am going to use a quote about power from one of the masters, Machiavelli.

    The promise given was a necessity of the past: the word broken is a necessity of the present.

    The broken promises of the US are the past. The US soldier is one of the best in the world, but his leader have failed him. It is not in my ability to judge the soldier as he is only following what he has been told. But it is my duty to tell the Commander in Chief of what used to be the strongest military in the world that he has been a damn fool. History will remember him and assign him his rightful place.

    The promises of DU30 are the future. He does not have the luxury of having the military might, but he has something more. A desire to see his country grow and prosper. Given the choice between the fool and the achiever, my money will always be on the person who sees the future as a golden opportunity to be seized.

    My wishes and prayers go with DU30 to rise above the petty foolishness that has embroiled this country for so long.

    This is our time, lets seize the moment.

  2. Freedom of navigation is much older in international law and custom than UNCLOS.

    ‘Innocent passage’ is one type of FON, not the only type, which allows ships to even enter territorial waters. For example, to get from Saigon to Guam, a US Navy ship may pass the Surigao Strait based on innocent passage provided that it does not carry on military operatione.

  3. Tim Williams on

    this is such bullshit and typical of Filipinos. Tell the USA that their “credibility is on the line” as a way to draw them into an issue that has nothing to do with the USA.
    As an American, I do not give a damn about the China Sea and I do not give a damn about American credibility with Filipinos and do not want the USA drawn into yet another dispute THAT I PAY FOR WITH MY TAX DOLLARS. Please finally stand on your own two feet as a nation.

    • Tell that to your Black president. USA is under pressure 1) Illegal migration by UN/Obama collaboration 2) lyingcrookedhillary.com 3) Black Lives Matter supported by your president 4) amendment 1 & 2 of your constitution being trumpled by your president, Obamacare, etc.

      Your tax dollar? Ask your president where is it being spent?
      Your president is part of the globalist.

    • Ignacio Balbutin on

      You don’t have to say that, Philippine President already announce publicly that he will not rely on the US. America needs the alliance of the asian countries with its pivot to Asia more than the Asean nation need the americans.

  4. I hope you do realize that “United Nation’s Permanent Court of Arbitration” is absolutely wrong.

    PCA special tribunal was requested and paid for by Phillipines

    1. It has nothing to do with UN. UN has openly clarified this.
    2. It has nothing to do with International court of justice (ICJ), ICJ clarified this.
    3. It has nothing to do with International Tribunal for the Law of the Sea,
    see, this is the proper place for disputes on UNCLOS.

    • What nationality are the lawyers assisting the Philippines?
      Pnoy was made to agree to file protest by Obama. Do you think filing of the case to PCA was done by Pnoy without backing of Obama?

      Remember, most factories from the USA were transferred to China at the expense of american citizens’ unemployment – during the time of Clinton (note the Clinton Foundation gained and one of the sins of Hillary to citizens of america). Globalists wants 3rd term of Obama by means of martial law if Hillary failed to be president.

    • UNCLOS allows several ways to settle disputes and PCA was most appropriate for the situation. If China wants ITLOS or ICJ to hear the case, go ahead.

  5. China would take over the whole of the Philippines if the USA did not stop it. Do not think Chinese respect the Philippines I lived in China for 12 years and I know they think low of everyone who is not Chinese.

    Just ask any Philippine person how they are treated working in China. It is not good.

    China is not a friend of the Philippines.

  6. Amnata Pundit on

    The Americans assured Aguinaldo that they had no designs on the Philippines. We all know what happened to Aguinaldo. These same Americans promised to pay our veterans who fought their war against Japan in WW2. We all know what happened to our veterans. these same Americans also said the Saddam Hussein had weapons of mass destruction. We all know what happened to that claim. Before anybody puts his faith on any American guarantees, he should remember first what the American Indian found out some 200 years ago: “White men speak with forked tongue.”

    • Yes we know what happened and it was not a totally bad deal even for Aguinaldo who was the most successful turncoat in Philippine history. At least with the Americans we could fish in our own seas west of the Philippines while millions of Filipinos migrated to the USA for a better life in the American dream. On the other hand millions of Chinese entered our country to take it over, but how many Filipinos do you know enjoy a good life in communist mainland China right now?

      Sure our plight is no different from the native American Indians being evicted off our lands, but this time the cowboys and cavalrymen are not pale faced but yellow skinned, armed not with Colt or Winchester but with AK47 and Norinco, with warships waving not the Stars and Stripes, but the East is Red.

    • Amnata Pundit on

      In other words its okay to get shafted as long as its the Americans who are doing it to you, right? Ikaw na lang. Ako ayaw kong magpa-ganun maski kanino?