The way forward in PH case vs China
IN THE coming months, the Arbitral Tribunal of the Permanent Court of Arbitration is expected to render its ruling on the Philippine case vs China, which was initiated in January 2013. The case has generated vigorous public discourse in the Philippines and all over the world.
This global discourse encompasses not just the particulars of the Philippine case—namely, the maritime entitlements and the rights of coastal states under the 1982 UN Convention on the Law of the Sea (Unclos). It is broader, discussing principles that should underpin relations between nation-states, particularly the rule of law, self-restraint, and nonuse of force or intimidation in the peaceful settlement of disputes.
The Philippine case is not intended to gratuitously antagonize China. On the contrary, it is a peaceful, nonviolent, transparent and lawful method chosen by the Philippines in response to China’s unilaterally aggressive actions to pursue its unlawful claims to virtually the entire South China Sea. Though our case is designed to protect the maritime entitlements of the Philippines, it is, as said earlier, of much greater regional and global importance as a sincere attempt to promote the rule of law in managing international differences.
The Philippine motivation has been clearly and consistently presented. It is understood and supported all over the world. Beijing’s refusal to participate in this case is perhaps the greatest lost opportunity in recent times for building a law- and rules-based regional order, where right rather than might can prevail by the free consent of all countries.
Our neighborhood, the Asia-Pacific region—an engine of global growth and geopolitical fulcrum in the 21st century—is in a state of flux. As such, it behooves nations to persevere in pursuing the future we envision for our region’s security architecture: one that is stable and predictable, to enable our peoples to live in peace and prosperity and where reason, not power, prevails, and the rule of law abides in its fullest meaning.
As much as it emanates from our constitutional mandate to protect the country’s national interest, our peaceful and legal response is also in keeping with our obligation as a responsible member of the community of nations.
Article II (Section 2) of the 1987 Constitution “renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations.”
In his remarks before the Permanent Court of Arbitration on July 7, 2015, then Foreign Affairs Secretary Albert Del Rosario said the Philippines has adhered to its rights and obligations under the 1982 Unclos in good faith. Indeed, the Philippines signed Unclos on the day it was opened for signature, and was one of the first states to submit its instrument of ratification.
Guided by Unclos, the Philippines and Indonesia concluded an agreement to delimit their EEZ (exclusive economic zone) boundaries in May 2014. Our agreement with Indonesia shows what is possible when parties agree to use Unclos in amicably deciding maritime questions.
Rule of law has become one of the key defining advocacies of the Philippines in the global community, together with democracy, good governance, migration and worker’s rights, human rights, sustainable and inclusive development, women and children’s rights, and gender equality.
The international community should embrace the arbitral decision as a definitive statement on the Law of the Sea. This would have a tremendous positive impact for the peaceful resolution of disputes and the reduction of tensions in the South China Sea despite the lack of an enforcement mechanism for the decision.
The Philippines will abide by the ruling. China should do the same in order to manifest the meaning of its “peaceful rise.”
However, the arbitral decision will not end all the disputes. There will be no ruling on territorial sovereignty issues or on maritime delimitation. The claimant-states face a long road ahead to the permanent and final settlement of disputes. Hopefully, the discussions within the framework of the Asean-China Declaration on the Conduct of Parties and on the Asean-China Code of Conduct will head toward that direction after the decision.
The Philippines has no desire whatsoever to contain China. In forging a durable and equitable security architecture for the region, China’s participation is vital and China’s interests will be respected by all, provided they do not negate the interests of the region’s smaller nations.
What we seek after the arbitral decision is a fresh beginning for a rules-based regime in the South China Sea and China’s genuine partnership in the great enterprise of building a safer, stable, more progressive and harmonious region.
Evan P. Garcia, a career diplomat since 1982, has served as the undersecretary for policy of the Department of Foreign Affairs since 2013. He is now the ambassador-designate to the United Kingdom.
