Humility in victory

On the crest of an expected Philippine victory in the arbitration case filed by the Philippines against China over the South China Sea, I agree with President Duterte that we must not “taunt [China] or flaunt” our triumph.

Preserve Chinese friendship. After all, the Philippines and China enjoy a long history of friendship as well as excellent diplomatic, political and trade relations. This dispute is just one aspect of such a long relationship. Humility in victory is the better course as we continue to engage our big neighbor in friendly dialogue. We should not, after our victory, rule out bilateral negotiation, as China has always wanted.

China opted not to participate in the proceedings and the Philippines was allowed by the Arbitration Tribunal to present its case ex-parte. However, in various “diplomatic Notes Verbale,” position papers, media announcements and letters to members of the Tribunal, China has repeatedly argued that the Tribunal has no jurisdiction and that, consequently, it would not abide by any decision issued.

In an earlier 151-page “Award” or ruling, dated Oct. 29, 2015, the Tribunal already held that, contrary to these arguments, it has jurisdiction to hear and decide the case notwithstanding China’s absence or default. In fact, the Tribunal formally announced that it would issue its decision on the merit this Tuesday.

Despite China’s absence, the Tribunal said it would copy China with all communications, arguments and documents in the case, give it notice of all hearings, grant it adequate time to respond to or comment on the pleadings filed by the Philippines (if it so desires), and remain open to China’s participation at any stage of the proceedings.

Extent of victory. In its “Memorial” (or final written arguments), the Philippines prayed for 15 “submissions” or reliefs. Although a victory is generally conceded in our favor, we do not know, at this point, how many of these 15 would be granted by the Tribunal.

In an earlier column (11/8/15), I summarized these 15 submissions into three basic claims:

First, the Philippines “seeks declarations that the Parties’ respective rights and obligations in regard to the waters, seabed, and maritime features of the South China Sea are governed by Unclos (United Nations Convention on the Law of the Sea) and that China’s claims based on ‘historic rights’ encompassed within its so-called ‘nine-dash line’ are inconsistent with the Convention and therefore invalid.”

Second, it “seeks determination as to whether, under the Convention, certain maritime features claimed by both China and the Philippines are properly characterized as islands, rocks, low tide elevations, or submerged banks.”

Consequently, if these are “islands,” they could generate an exclusive economic zone (EEZ) or entitlement to a continental shelf extending as far as 200 nautical miles. If, however, these are “rocks,” they could generate a territorial sea no greater than 12 nautical miles. If they are neither islands nor rocks, but merely low-tide elevations or submerged banks, they would be incapable of generating any such entitlements. No amount of artificial reclamation work can change the status of such features.

Third, it “seeks declarations that China has violated the Convention by interfering with the exercise of the Philippines’ sovereign rights and freedoms under the Convention and through constructions and fishing activities that have harmed the marine environment.”

Benefits from decision. A grant in full by the Tribunal of the first set of submissions would mean the invalidation of the nine-dash line, undoubtedly a big embarrassment and legal setback for China. Under this “line,” China claims sovereignty and jurisdiction over almost all of the vast South China Sea.

Consequently, a Philippine victory on these submissions will mean freedom of navigation for all countries. Thus, the navy and air force of the United States, Australia, Japan and the other big powers could continue to sail or fly freely in and above this huge body of water.

The second set of submissions is very important to us, although it may not be as important to other countries. Our victory would mean that we could freely explore, develop, extract and utilize the marine and natural resources, particularly oil and gas deposits, in the EEZ of 200 nautical miles outward from the coastlines of the Philippines and would, as a necessary consequence, legally bar China from asserting any authority over these mineral and gas resources.

One problem in this regard is Itu Aba (called Taiping Island by China), which is about one-half square kilometer (about 46 hectares) of soil formation lying a little over 200 nautical miles off the coast of Palawan and occupied by Taiwanese soldiers. If this is ruled to be an “island,” then it could generate its own EEZ that will overlap with our Palawan EEZ.

Since we recognize only one China, then the Taiwanese occupation is deemed to be that of China. Despite its small size, Itu Aba could generate a huge EEZ extending very close to Palawan, an EEZ that China could exploit with the protection of its navy.

Finally, a victory on the third set of submissions would mean that China can no longer legally use its naval vessels to chase our fishermen, or ruin the reefs and ecological structures in our EEZ.

Note that the Philippines did not ask for, and the Tribunal will not grant, any sovereign or ownership rights over any land mass. Reason: The Tribunal’s jurisdiction is limited only to maritime rights recognized under the Unclos.

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TAGS: arbitration, China, Maritime Dispute, South China Sea, Unclos, West Philippine Sea