Hague ruling: Are we apologizing for our victory?

When Perfecto Yasay, for whom I used to have high respect, announced that the arbitral tribunal had decided in our favor, it seemed more like he was announcing his impending execution by hanging.

Sombre, unsmiling – contrite even. I was afraid that he would even turn lachrymose! That, after several unfortunate statements that made him sound more like the propaganda officer of the Chinese Community Party rather than Secretary of Foreign Affairs of the Republic of the Philippines.

Of course we, who are not in the loop, will be reminded that this is all part of diplomatic subtlety, the eroticism of regional intercourse with which we, ignoramuses, are not familiar. But since when was Yasay a top-notch diplomat, and under what rules is it correct for considerations of neighborliness – comity, in the language of international law and relations – to make of law, truth and justice secondary considerations?

We are told that the Beijing government must be given a chance to save face – or risk dethronement by a rabidly nationalistic population (in the worst possible sense of “nationalism”). But why do we not talk about saving face ourselves? We were evicted, were we not, our fishermen hosed, the seas declared off-limits to our boats, our resources rudely snatched from us? And now that judgment declares that the law is on our side, we are worried about the Chinese government saving face? That is strange indeed, to say the very least. Some have gone so far as to talk about “treason,” except that, legally, treason cannot be committed unless we are at war – which is exactly what China has said repeatedly it is prepared to wage on us should we persist in our claims.

Law on our side

To be credible, let us keep within the confines of the judgment. There was no adjudication on territorial rights because the legal framework is the UN Convention on the Law of the Sea. But certain uses of island or land features may in fact constitute infringements of sovereign rights over the Exclusive Economic Zone.  

“Sovereignty” is a nebulous concept, but one that best sums up the concomitants of Statehood.  It is not sovereignty that concerned the tribunal but sovereign rights — what the UNCLOS recognizes of a coastal state in respect of the Exclusive Economic Zone and its continental shelf.

Now, the world has been told that the law is on our side, this, after repeated Chinese claims on the basis of historic title — claims roundly rejected by the tribunal. 

Many are concerned with enforcement. Some dismiss the judgment as an exercise in futility. It is this dismissiveness that fails to recognize the difference between enforcement mechanisms within a State and those within the community of States.

Insofar as the latter is concerned, there can be no “vertical enforcement,” enforcement by a superior force. Principles superiorem non recognoscentes…Princes recognizing no overlord!  That is what States in their sovereignty are. So the enforcement available in the international sphere is horizontal – by the pressure brought to bear by States in their relations with each other. Immediately after the verdict went public, several states called on China to submit to the rule of law!

The PROC itself maintains many other claims – and it must at least lend this the semblance of legitimacy by anchoring them on some principle or rule of international law.  It cannot, without sacrificing the legitimacy of these claims (occupation of Tibet, its persistent claim to Taiwan as a break-away province, etc.), flaunt its disregard of a lawfully rendered judgment.  

And at this point, I do not really care whether the US is protecting its interests or ours, by its maneuvers in the West Philippine Sea (South China Sea). The fact is that its presence is an effective check on Chinese bullying – and that should be good for us.

Without rubbing it in, we should be rejoicing that the judgment has been in our favor, that we are on the right side of the law, that the rights are not only claimed by us, but are lawfully ours.  

Here the difference between facticity and validity should be of crucial importance.  No matter the prevailing facts, it is the Philippine claim that enjoys validity! – Rappler.com

The author is Dean, Graduate School of Law, San Beda College