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.