MANILA, Philippines – Is the Philippines doing a Don Quixote against the windmill, and David versus Goliath in taking on China in its historic arbitration case?
The Philippines begins arguing against China's expansive claims over the South China Sea. The arbitration case is known as the most significant and closely watched development in the maritime dispute but some analysts say it is not a “slam dunk.” (READ: Philippines vows to smash China's strongest argument)
Manila expects an international arbitral tribunal to strike down China's 9-dash line as inconsistent with the United Nations Convention on the Law of the Sea (UNCLOS). (READ: PH vs China at The Hague: '80% of fish' at stake)
From July 7 to 13, the Philippines participates in oral arguments in The Hague, Netherlands on the jurisdiction and admissibility of its claims. These are tough issues to hurdle as China argues that sovereignty over land, and maritime boundary delimitations are beyond the scope of the tribunal.
If Manila wins jurisdiction and later the merits of the case, it will then have to contend with China's refusal to comply with the ruling. The tribunal has no enforcement mechanism.
What are the odds the Philippines will get a favorable ruling? What are the strengths and loopholes of Manila's arguments? After arbitration, what happens next?
Rappler's Ayee Macaraig talked to maritime expert and lawyer Jay Batongbacal, director of the University of the Philippines Institute for Maritime Affairs and Law of the Sea. He is also an assistant professor at the UP College of Law.
Calling himself a “realist,” Batongbacal believes the Philippines' legal track is not enough to resolve the dispute. He discusses what's at stake in the case, what arbitration can and cannot resolve, and scenarios after the tribunal hands down a ruling in early 2016.
Here is the full transcript:
Rappler: You wrote in a Thought Leaders piece two years ago that the arbitration case is an “idealistic dream.” You compared it to Don Quixote, David versus Goliath. Do you hold the same opinion two years later?
Oh definitely, we are still the weaker country compared to China. It's still the strongest power in the region and it's growing, and it's demonstrating that by undertaking all of these activities since then: reclamation, forcing our fishermen off our fishing grounds, confronting our Navy so you can see the disparity in size and power, the asymmetry is coming into play now despite the arbitration.
Rappler: The oral arguments are about jurisdiction. There are two parts of the case: jurisdiction and merits. What challenges does the Philippine delegation face in convincing the tribunal that it has the power to try the case?
Jurisdiction is determined here by the case which is presented and the views of the tribunal. They have to be convinced that the disputes brought before them by the are disputes that are within their power to arbitrate under the terms of UNCLOS. That really now depends how the Philippines has constructed its case. Unfortunately the details of that we do not know because the memorial has been kept confidential so far. But based on descriptions and reports of course, we know there are at least 3 principal claims being made:
Rappler: How do we respond to China's stand that there is no jurisdiction because the case is about territorial sovereignty and maritime boundary delimitations? These are outside the scope of the UNCLOS.
We are trying to convince the tribunal that all these claims we presented are only issues of interpretation and application of the convention. That means these are only issues pertaining to the maritime arena, the water adjacent to these land territories. What China is trying to argue is that these two cannot be separated. You cannot decide on the maritime rights unless you decide the sovereignty over the adjacent land territories. We on the other hand are taking the position that they can be separated.
So the difficulty really lies in that divide. Because conventionally or normally whenever maritime issues are presented to international tribunals, they first have to determine who has sovereignty over the adjacent land features before they can move on to the adjacent waters because the principle the land dominates the sea. That has been thrown about quiet a lot lately, that is actually the foundation of UNCLOS so all the maritime zones, the rights that states are able to exercise in waters depending on distance from the shore are based ont hat principle. That all of that is because they flow from the adjacent land.
Rappler: So we should first determine who owns the features before we can say who has the maritime rights like the entitlements to an EEZ?
Yes that is what China is arguing because that really is the way that the UNCLOS was set up. On the other hand, we are trying to argue that interpretation and application of the Convention, especially here in our area in the South China Sea, that can be done with respect only to the maritime rights. We do not have to decide the sovereignty over the features, that's why the Philippines expressly excluded territorial sovereignty from its claims.
Rappler: Justice Carpio says if the Philippines wins jurisdiction, the tribunal will likely strike down the 9-dash line. Do you subscribe to that view?
Justice Carpio is correct. Assuming we are able to surmount the issue of jurisdiction, meaning we convince the tribunal that they can rule on this case, then the first major issue of course that we are presenting is the validity of this 9-dash line claim. From all accounts, although there is some problems of course because China trying to justify its 9-dash line claim but from all of its statements, it seems the 9-dash line claim is fundamentally based on some concept of historic rights or historic title.
But the whole point of negotiating UNCLOS in the 1970s and 1980s was precisely to eliminate those types of claims because back in those times, many states were claiming vast amounts of waters, anywhere from 3, 12 even 350 NM distance from the shore and on many different grounds including historic grounds so China's claim falls under that category. And we're arguing that 9-dash line claim cannot stand at present, it is invalid and illegitimate under the current state of international law.
Rappler: The tribunal is tackling jurisdiction first before merits. Is it possible it says no jurisdiction, and doesn't go into the merits? What are the scenarios?
Based on the last press release of the tribunal issued two months ago, they decided to separate the issue of jurisdiction and admissibility as a preliminary question, that's how they described it. And under the rules of procedure of the tribunal, they have to decide that first before going into the merits. The scenarios therefore is either they can rule they have jurisdiction on all the claims. They can rule that they don't have jurisdiction at all. Or it's possible they will divide the case into the different claims of the Philippines and say there's jurisdiction on some but not in others.
Given that the case presented by the Philippines is rather complicated, there are at least 13 to a little less than 20 claims I think depending on how you count them if you read through the statement and notification of claims. I think it's realistic to expect that at least the tribunal will come up with a mixed decision saying that they have jurisdiction on some but not on others.
Rappler: So the worst case is for the tribunal to say it has no jurisdiction at all?
That would be the worst case scenario and that can happen if they are convinced of China's arguments really that the issues cannot be separated, the sovereignty over the land cannot be separated from the maritime features, and therefore the maritime rights and jurisdiction cannot also be decided unless they first go into sovereignty over land. That is the worst case scenario for the Philippines.
Rappler: You say China's land reclamation is like tampering with evidence. How does it affect the case?
You have to make distinctions now between the different locations of these features because there are 7 locations. And some of them are within 200 NM of the Philippines. Others are beyond. This is important because the position we have taken in the case is we are entitled to only 200 NM as our EEZ. And beyond the 200 NM, that's the high seas. It is a commons for all.
And the thing is there are provisions in the UNCLOS which actually recognize that states can create artificial islands in the high seas. The only exception is if those high seas are actually part of the continental shelf of a coastal state, the extended continental shelf similar to what we had in Benham Rise. But we don't have that kind of claim right now in the SCS.
So 3 of these Chinese positions are actually beyond 200 NM. Although we have contested their legality, and we are asking the tribunal to declare that they are not part of China's continental shelf, if they are regarded by the tribunal as being part of the high seas then it does not actually help us because China, just like any other state, would be able to say they can establish these islands in the high seas. And that's under our own theory so that really is a problem.
Now, for islands, reclamation within 200 NM in places like Mischief Reef, one of the closest, these are areas within our EEZ and continental shelf so in those places, we do have a chance of contesting their legality because we could assert that if we're successful in convincing the tribunal that they are within our EEZ and CS, and that none of the other island features in that area can generate such a shelf or zone, then we could ask the tribunal to say they are inconsistent or violation of international law because they are constructions on somebody's EEZ and CS.
Rappler: A question from Twitter: How do we ensure China complies with a ruling favorable to the Philippines? This is an important and recurring question.
It is true that in any international tribunal, there is no independent enforcement body so you can't go to the sheriff or police or some executive agency to have them enforce it against the opponent. International arbitrations or adjudications have always relied on state consent if it's between states. Here there is no way we can force China to comply.
I think what's intended is for the rules to be clarified, for there to be a definitive and final declaration on what maritime zones apply in any particular place in the SCS, particularly whether we are entitled to more rights because it is in our maritime zones rather than China's maritime zones. If the 9-dash line is invalid, then they have to measure these maritime zones from land.
They'll have to also hopefully abide by the characterization of the tribunal of the different features which will help us in the future in negotiating some other arrangement so ultimately it's about reinforcing your argument, your negotiating position when you do come to that point that you do have to discuss, negotiate with them on the exercise rights on any particular area.
Rappler: Will moral suasion be enough to get China to comply? The Philippines is using a shame strategy, saying a rising superpower cannot defy international law.
I would rather talk about it in terms of moral suasion than naming or shaming. When you talk about shaming a country into submission, I don't think that will work, especially with China, that's clearly not going to work based on how they have acted so far. Embarrassing them only makes them dig in even harder, deeper into their positions like reclamation.
But moral suasion in the sense that a clear statement that these are the rules that everyone must follow in the international community. That would certainly have some influence in the long-term. States do place importance on their stature and reputation in the international community because that is what allows them to get concessions, to get agreements from partners, etc. So you can't really work in the international community if everybody is suspicious about your intentions and your reliability. That over the long term is what's possible.
Rappler: What's your timeframe for enforcing the ruling? Justice Carpio says a decade.
I guess that's an optimistic guess. Because from what we can see with China, they make decisions and take actions over a much longer period of time. Look at their time to become a first-world or to equal America's stature economically and militarily. It's a 100-year plan and they actually have a schedule up to 2049, that's how long-term they plan. In terms of action, we could expect a similar spread. Their leadership changes are every 10 years so it really takes a long time for policies to change.
Rappler: The Philippine delegation argued our fishing and environmental claims. How is this important to the case?
The activities that China has undertaken, asserting itself unilaterally, a lot of it and part of the reason we complain so hard about it is they are destructive, environmentally destructive. We're not talking only about fishing beyond a certain limit or merely fishing without a permit. We're talking of extracting corals, marine turtles, these are species, resources that once you take them, they're gone forever in that manner. So we're concerned about the sustainability, environmental sustainability.
We're hoping that adds, to impress upon the tribunal the need to take action and jurisdiction and issue the appropriate ruling. The way China is exploiting the resources in the SCS is already unsustainable and rather destructive, that's just for its own uses. What more for the other countries? Nothing will be left for them. Even if China did not say militarily take these areas, the fact that it's activities are so massive and destructive is already a cause for great concern.
Rappler: Some scholars say the Philippines put all its eggs on the legal basket, the legal track. What should the Philippines do moving forward, after arbitration?
Moving forward, I think we really should review what we've done in the past couple of years. And it really seems to have happened that Philippines-China relations since 2012 have been dominated basically by the arbitration. You can see it in the papers, it's always about the arbitration and nothing about cultural ties or trade, and everything else seems to have stopped because of that.
When you think about it, this is still the region's most powerful economy, most militarily powerful state in the region, you cannot ignore that. We on the other hand will always be limited by our size, the limited amount of resources we have. We should really be taking advantage of all available options, and not unnecessarily limiting ourselves to only one or two.
We really need to diversify in order for us to maximize whatever benefits we can get from each and every option. That can includes bilateral negotiations if necessary but that does not necessarily preclude multilateral negotiations on another front or even arbitration again, if we feel that is necessary on another issue, use of ASEAN, use of military alliances, bilateral alliances, we should make use of all of them. The only problem probably or challenge there is we need to make sure when use all of them, we need to make sure they are all coordinated, and directed to one goal: long-term, and for the benefit of the country.
Rappler: Are we there yet?
Given our politics, we're still quite away from it. In fact, I'm with a group of academics who feel we are still not at the point where we have long-term strategies, careful deliberate actions that can cross beyond the changes in the administration.
Rappler: Speaking of changes in the administration, Vice President Binay, the only politician to declare a presidential candidacy so far, proposes a joint venture with China. What's your take on this?
Start from the basics – joint development, joint management of resources. When it comes to the oceans, the resources of the oceans, even the UN Convention on the Law of the Sea promotes joint management, joint development of resources, especially in disputed areas. This is because of the recognition that ocean resources are different from land resources. These are shared resources so what you do in one part of the ocean could affect another part of it. That's why shared management, shared development makes sense.
In the South China Sea, the problem we have is these competing territorial claims are overshadowing the ideas of shared resources, the commons character of the oceans so right now, everyone, China, us don't seem to think of the resources in SCS as shared resources. It's always about our own exclusive resources that we are worrying about. I think that's one problem.
When it comes to efforts in the Philippines, our specific problem is our experience so far in a joint development in the SCS related to the dispute is the JMSU under Arroyo which has been tainted with corruption allegations. That's really unfortunate and because of that, that set the current administration against any consideration of any kind of joint development but in the future, assuming it is free from corruption, the big question, the big challenge will be to make sure any kind of arrangement like that will be fair and equitable to the parties concerned, especially to us because we are the weaker, smaller party in this situation, and yet we have a greater need for those resources. The other one is larger and has more options so fairness and equitability will be the main issues in addition to transparency and absence of corruption.
If it's under those conditions, I think it will be worth it to explore that option, at least because really, the only other alternative will be exactly what's happening now which is each country trying to get its own exclusive share and in that situation, definitely we will lose because the other country will always have the advantage in terms of strength, capacity, capability.
Rappler: What are the case's wider implications to the international community? A Twitter user asks if the US and ASEAN countries will help us considering they have their own bilateral relations with China.
I think what we need to pay attention to will be the common interests between us and the international community, and that is to ensure the SCS remains a commons, remains accessible to all for their own specific purposes. The US is interested because of its freedom of navigation interests. Other countries like Europe of course would be similarly situated because their ships pass through for purposes of trade.
Our neighboring countries have similar interests in navigation, etc although they do have their exclusive interests, their own claims. That's the point at which we will diverge.
Now I think we will see the continuing support of the international community for as long as our position also benefits them in those terms, as long as these coincide with their interests. Mutual interests. That's how the world works. You won't support anybody who would act against you. We need to review carefully and appreciate where our interests converge and therefore have expectations based on those shared interests.
With respect to divergent and exclusive interests, we also have to realize that on those aspects, we are on our own. We have to accept that and we have to work on those exclusive interests, based on our own actions, resources, and not rely on somebody else to do it for us, even allies who work only on the basis of shared interests. You can't expect them to do things for you. Even military.
One of our long-standing issues has always been an overreliance on allies on things we should be doing ourselves. So hopefully we get away from that kind of attitude from now on and realize allies are only good for some things we want to do, for the rest, we should keep it to ourselves. – Rappler.com