Why The Hague ruling on the China-Philippines dispute defective?

(This article was first published on yours truly now defunct blog, MainbarOnline, in July 2016.)

The Hague ruling on the China-Philippines dispute is ravished with jarring unilateral posturing. In my article, China-Philippines sea row: Scarborough Shoal standoff, what’s at stake?, my assessment is to settle it outside the provisions of the legal “nuts and bolts” of the United Nations Convention on the Law of the Sea (Unclos). Both claimants must talk and exercise the best diplomacy that could be afforded out of respect and camaraderie. Or else, another Falklands war is ticking.

It isn’t only absurd to arrive at that perturbing situation but also tempting to hover over an exaggeration of analysis or what we call the analysis paralysis syndrome. But it seems that the Benigno Aquino government has just paralyzed the entire core values of diplomatic options when the Permanent Court of Arbitration (PCA) ruled in favor of the Philippines’ claim.

The Hague ruling on the China-Philippines dispute is not only a clear and unimaginable affront but also an outright disrespect to the core sovereignty of China by its historical claim, a decade long-standing.

A story that still counts

Just like claiming a piece of land that this single John Ho has been keeping with for decades from his past generations, he constantly claimed it over and over a considerable long time ago without hearing any such assertive reactions from the face of the Earth. Then, he declared it part of his properties, where his inherent rights rest upon it, even though there wasn’t any single document either from a Land Council or from the Corners of the Earth to attest to it.

Then, here comes a man named John Doe, who just woke up from the reality of the world. Yet, he has all the attestations from the Land Council showing a quantum of proof of all his taxes he paid for that chunks of rocks and lands for not so long ago. This is so to show or to hint that he is reclaiming what he has just been thought were his properties under documents by documents, especially by the latest document from the Land Council.

This document gives rights to John Doe who paid taxes to undeveloped property, providing him further a specific surplus right over the other properties that are adjacent and proximate to the others.

The China-Philippines dispute can be demonstrated in that story—a historical and long-standing claim against a claim based on the international law and a considered acquiescence for a considerably longer time than it should be realized earlier.

Then, what makes The Hague ruling on the China-Philippines dispute defective?

Why The Hague ruling on the China-Philippines dispute defective?: A jurisdictional hearing in July 2015 at the PCA: Statement by Secretary for Foreign Affairs of the Philippines Albert Del Rosario (Photo: pca-cpa.org)
Jurisdictional hearing in July 2015 at the PCA: Statement by Secretary for Foreign Affairs of the Philippines Albert Del Rosario (Photo: pca-cpa.org)

Reservations and the jarring unilateral posturing

The China-Philippines dispute over the disputed islands in the South China Sea involves three underlying issues:

  • China’s interest,
  • the United States’ interest, and
  • the Philippines territorial claim based on the international law

The Philippines’ claim based on Unclos gives it the only clear, legal issue. The Philippines ratified it on May 8, 1984, with reservations. China ratified it on June 7, 1996, again with not only reservations but also an expression so clear and should be binding that China opposes Section 2 of Part XV of Unclos concerning all categories of disputes.

Moreover, China’s reservation upon its ratification of Unclos says that:

reaffirming its sovereignty over all its archipelagos and islands as listed on its 1992 Law on the Territorial Sea and the Contiguous Zone promulgation… (emphasis mine)

This reservation exactly affirms China’s 1935 claims of the following:

  • Islands that are part of Zhongsha islands
  • 1956 claims for geographical basis
  • 1958 Declaration on the Territorial Sea

Then, what made the Philippines and the PCA seemingly so disrespectful, so unilateral to circumvent the issue in the name of the rule of law?

Reading the whole decision, the Tribunal simply disregards outright the historical claim of China without buying a little hint of consideration on the reservations China had made when it ratified UNCLOS—so exclusive a reading of the law the Tribunal had made.

On one view, Unclos provisions providing the Philippines legal rights to assert proximate islands are already weakened and be considered null through the lens of historical, decades-long standing assertion of China over some islands in the South China Sea, especially on islands China claimed that are part of Zhongsha islands.

Considering this decade-long historical claim of China, the Philippines’ basis of claims is as jarring, jaw-dropping in a grand manner as what the legal language of Unclos unilaterally says so.

A written expression tantamount to an exclusion of a thing or two from the general rule cannot be simply set aside. That would be the primary reason why the Philippines, China, and the rest of the countries signified their reservations and expressions upon ratifying Unclos.

These signatories, beforehand, decided with conviction to express their reservations—be it defiance or an affirmation to a provision—were absolute as binding as a rule of law in the international scope.

Why The Hague ruling on the China-Philippines dispute defective?: Jurisdictional Hearing—Counsel Team for the Philippines, including (left–right) Prof. Bernard H. Oxman, Prof. Alan E. Boyle and Mr. Lawrence H. Martin (Photo: pca-cpa.org)
Jurisdictional Hearing: Counsel Team for the Philippines, including (left–right) Prof. Bernard H. Oxman, Prof. Alan E. Boyle and Mr. Lawrence H. Martin (Photo: pca-cpa.org)

Assessment: The Hague ruling on the China-Philippines dispute is farce

Although the issue is founded by an assertion based on all legal means and interpretation, it still shouldn’t be taken at its singular face value. There is the legal assertion on one hand, as there is a historical, a long-standing assertion on the other hand. By simply invoking Unclos, is simply denigrating the historical claim of the equally sovereign state.

Although there could be no way for Unclos to consider a historical claim as legally binding as such when it serves as a clear unified law that provides a legal claim that is more binding than the other ways around, still The Hague ruling on the China-Philippines dispute is ravished with defects, shortsighted as a one-man party rule in an arbitration process defeating the very essence of the process.

In a sloppier than ever talk, this could be better understood this way: how could it be called an agreement, an arbitration when there’s only one party that agreed upon?

Further, The Hague ruling on the China-Philippines dispute has shown defective early on when it accepted the case submitted by the Philippines and heard the case. Assuming for the sake of argument, given these following premises:

  • That, an arbitration case cannot be called as such with only one party is heard, guided by the fact that the other party called in that case had expressed opposition to the arbitration provision when it ratified the very law.
  • That,  as a competent court existed and founded on such very unity that is depicted by the provisions of Unclos, which created that court, guided by the fact that ratifying countries had expressed their reservations consistent to their very interest, territorial claim, and sovereignty.

Now, how can that court act as competent as such when the involved party, upon ratifying the very law that created such court, expressed its opposition to the arbitration proceeding and had expressed reservations reaffirming its sovereignty over its decades-long standing claim?

Lastly, how can that court enforce its ruling when at the very substance it has no police power to implement its decision made? Too beautiful, isn’t it? Not only does it costs time, resources, and effort but also the relationship among Asian nations, especially with China.

But what makes The Hague ruling effective, by the way?

The Hague ruling on the China-Philippines dispute becomes only effective for the United States to advance its strategic military and intelligence positioning in vast Asia and the Pacific. How was that? Where are we in the game? Are we being politely used, or are we just being strategically outwitted and misled with legal calisthenics? ▲▼

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