PH-China: It's all about the rule of law
It was not an easy decision to make. The Philippines was pursuing a political and diplomatic tack in dealing with China. It actively pushed for the China-ASEAN zone of peace where a code of conduct would guide the behavior of countries with claims to the South China Sea (which we have called the West Philippine Sea).
Despite all this, our giant neighbor and Asia’s rising global power has not softened at all on its 9-dash claim which practically covers all of the West Philippine Sea.
In the end, the Philippine government was left with no choice but to haul China to court over its repeated incursions on our country’s waters. We have elevated the issue to an international tribunal where the playing field is level. The message here is: our government wants the rule of law to prevail.
Definitely, we do not have the military might to stop the Chinese vessels. Militarily and economically, Manila is a far match from Beijing. War is not an option. Where else can the Philippines go to seek redress, where, as one ranking official put it, “right trumps might?”
That we are the first country to do this puts the Philippines in the annals of history. It is a bold move. But it also brings some uncertainty as there are no precedents. The greatest fear is the specter of loss.
But there is reason for confidence. Back in 2011, Supreme Court Justice Antonio Carpio, who has studied this issue extensively, said in a speech at the Ateneo de Davao: “If China’s 9-dash line map is questioned before an UNCLOS [United Nations Convention on the Law of the Sea] tribunal, there is no doubt that it would be declared as having no basis in international law. China’s 9-dash line map simply cannot co-exist with UNCLOS. Upholding one means killing the other.”
Internally, our recourse to do legal battle with China in an international arbitration forum can help unite us as a people. This should make us rise above our divisive politics, which recently reared its ugly head in the Senate, and think more globally. There are threats out there which go way beyond political parties and personalities and straight into our sovereignty as a people.
As the visionary Jose Almonte, former national security adviser, recently wrote, “No one can stop China from claiming ‘indisputable sovereignty’ over the South China Sea—except China itself, or the authoritative power of world opinion.”
Part of the government’s goal in bringing its case to a tribunal under the UNCLOS is to rally world opinion to our side.
Lawyers and scholars have been discussing this legal option for some time now and it has been on the drawing board of the Department of Foreign Affairs since 2011. In the same speech in October 2011, Carpio urged the government to “claim as its archipelagic waters the maximum area allowable under UNCLOS. Every state has a right to do so.”
He continued: “If the [UNCLOS] conciliation commission concludes that China’s 9-dash line map has no basis in international law, then that is practically the end of China’s claim to 90% of the South China Sea. World opinion will turn strongly against China if it insists on its 9-dash line map… All independent international law scholars who have written about China’s 9-dash line map claim are unanimous in declaring that China’s claim has no basis in international law, and that it clearly violates UNCLOS. No country in the world supports China’s 9-dash line map claim.”
A legal challenge focuses on the fact that China has opted out in 2006 from the compulsory dispute settlement mechanism of UNCLOS.
Carpio argued that not all is lost: “A state that opts out of the UNCLOS compulsory dispute settlement mechanism is still subject to compulsory conciliation under UNCLOS. While the decision of an UNCLOS conciliation commission is not binding on the parties, its ruling is nevertheless persuasive.”
What could possibly go wrong? “In this crucial battle to secure our EEZ under UNCLOS, the Philippines can never lose to China, unless the Philippines commits an irremediable blunder like bringing the battle outside of UNCLOS. If the Philippines brings the battle outside of UNCLOS, it can never expect to win over China, whether militarily or diplomatically.”
He explained, referring to the rule of law: “In this historic battle to secure our EEZ, we must rely on the most powerful weapon invented by man in the settlement of disputes among states—a weapon that can immobilize armies, neutralize aircraft carriers, render irrelevant nuclear bombs, and level the battlefield between small nations and superpowers.”
Thus, on January 22, after the national security council meeting, the government served the Chinese embassy the “notification and statement of claim,” the beginning of our long road to a legal resolution of an age-old dispute.
As the Department of Foreign Affairs said, “We expect international law to be the great equalizer.” - Rappler.com