The Philippines’ quest for peacefully resolving territorial
disputes in the South China Sea has entered a critical stage. After more than
two years of hard work and extensive preparations, culminating in the
thousand-page-long memorial, Manila has the chance to convince the arbitral tribunal
at The Hague that its case deserves to be heard.
The ultimate aim is to ensure all claimant countries honor
their treaty commitments under prevailing international legal regimes,
particularly the United Nations Convention on the Law of the Sea (UNCLOS),
which has been ratified by the Philippines (1984) and China (2006) alike.
The Philippines has been praised by nations around the
world, because it is the first country to have dared (under Art. 287 and Annex
VII of UNCLOS) to take China to the court. Throughout my visits to and
interactions with colleagues and officials from sympathetic countries across
the Pacific region — and, I must say, there are many of them — I have
constantly been told about how they genuinely admire our government’s decision
to resort to compulsory arbitration despite China’s vehement opposition.
Though China has refused to engage the legal proceedings,
claiming “inherent and indisputable” sovereignty over almost the entire South
China Sea, the UNCLOS (under Art. 9, Annex VII) has not barred the resumption
of our arbitration efforts, which kicked off in early 2013. Without a doubt,
the Aquino administration has made a very bold decision by taking on China
directly — albeit not through force, but instead the language of law.
Beijing knows it would be very difficult to justify its
notorious nine-dashed-line doctrine, so it has instead chosen to sabotage the
Philippines’ arbitration efforts by raising technicality-procedural questions.
China has deployed three related arguments that aim to put into question
whether the arbitral tribunal should exercise jurisdiction at all.
China cites that the UNCLOS doesn’t have the mandate to
address sovereignty-related (title to claim) questions, while, invoking Art.
298 back in 2006, China has opted out of compulsory arbitration on issues that
concern its territorial claims, among others. China also claims that it is
premature to resort to compulsory arbitration, since alternative mechanisms
haven’t been fully exhausted. The Philippines’ savvy legal team, however, has
tried to address the jurisdiction issue by eschewing the sovereignty question,
instead focusing on two major issues.
First, the Philippines has emphasized the importance of
clarifying (under Art. 121 of UNCLOS) the nature of disputed features: Whether
they are low-tide or high-tide elevations or islands, since this has a huge
implication on whether the features can be appropriated at all or can generate
their own 200 nautical miles Exclusive Economic Zone (EEZ).
Perhaps the most important argument of the Philippines’ is
that the arbitral tribunal should examine (and hopefully invalidate) China’s
nine-dashed-line claims, which are based on pre-modern, questionable, and vague
notion of “historical rights/waters”. In short, we want to make sure all
claimant countries harmonize their claims and maritime behavior along modern,
internationally-accepted legal principles, not obscure doctrines.
But practically everyone agrees that China has to first
clarify sweeping territorial claims, which are neither consistent nor precise.
Up to this day, it is not clear whether China is claiming the entire South
China Sea or only the features and fisheries and hydrocarbon resources in the
area. And if China doesn’t even clarify the precise coordinates of its claims,
it would be almost impossible to have any viable joint development scheme among
claimant countries.
The Philippines’ case has also presented a huge dilemma for
arbitration bodies under UNCLOS. If the Arbitral Tribunal turns down
jurisdiction, and refuses to even hear the merits of our arguments, then the
very viability of international law as a conflict-management/resolution
mechanism will come under question.
At the same time, if it decides to push ahead and eventually
rule against China, then there is a huge risk that, as a good friend Columbia
University Professor Matthew C. Waxman puts it, it would be "ignored,
derided and marginalized by the biggest player [China] in the region."
After all, there are no multilateral compliance-enforcement mechanisms to force
China — a permanent member of the UN Security Council — to abide by any
unfavorable verdict.
In practical terms, the big concern is that while the legal
cycle slowly grinds, China is actually changing the facts on the ground on a
daily basis. This is why it is extremely important that the Philippines remains
vigilant, and primarily focuses on tangibly guarding its interests on the
frontline by fortifying its position on features it already controls, negotiate
necessary measures (i.e., hotlines) to prevent unwanted clashes and escalation
in the high seas, and employ all instruments in its toolkit to protect its
territorial integrity.
An urgent concern, in particular, is to prevent China from
imposing an Air Defense Identification Zone (ADIZ) in the Spratly chain of
islands, which may give Beijing the ability to choke off the supply-lines of
other claimant states and dominate arguably the world’s most important maritime
highways. The truth is that, we can’t only rely on UNCLOS to address this
critical situation, and we will need the help of our allies and partners across
the world as well as the full support of the Filipino nation.
By Richard Javad Heydarian, special for CNN Philippines
July 9, 2015
