Looking for tension solutions

In an earlier column, I wrote about the tension arising from the “air defense identification zone” (Adiz) put up by China near what the Philippines considers its territory. So far, however, the Adiz set up by China does not seem to bother Philippine authorities. But it will, should China set up an Adiz over areas we are disputing with China in the West Philippine  Sea (South China Sea).

In response to what we consider Chinese incursions in recent months, we have vigorously protested and announced that we would do whatever it takes to protect our sovereignty. What will it take and how do we stand? For a moment the situation was a little scary when over a year ago there was a week-long standoff between Philippine and Chinese vessels over waters close to the Scarborough Shoal, a rocky promontory close to Subic Bay. That standoff ended but it did not end the problem and may be complicated by Adiz. Why so?

A state’s jurisdiction over airspace is dependent on a state’s jurisdiction over water and land area. Where are we on the dispute? We have boldly asserted our firm resolve to defend Philippine territory. But the incident last year near the Scarborough Shoal and other incidents that followed clearly revealed what a poor match we are to China. We have begun to respond to this. Our foreign secretary, Albert del Rosario, has said that we are ready to tap every resource and call on every alliance needed to protect our sovereignty. Meanwhile, we have decided to avail ourselves of the provisions on peaceful dispute resolution in the United Nations Convention on the Law of the Sea (Unclos). We know that China has also ratified this treaty.

Incidentally, although the Philippines is not the only state aggrieved by the Chinese moves, the member-countries of the Association of Southeast Asian Nations also aggrieved have been careful not to displease China. It will be recalled, for instance, that the Asean failed to release a joint statement on the controversy at the conclusion of its summit even if they all supported a diplomatic solution to the problem. Thus, the Philippines is alone in pursuing an arbitration case as provided for in the Unclos.

A big problem in the Unclos case is that China has refused to join the case. Moreover, even if China joins in the arbitration, it can put up the argument, supported by some scholars, that arbitrators cannot consider “historic bays and titles.” This is one of the categories Unclos allows states to exclude themselves from arbitration. Does this mean that the Beijing claims we are disputing cannot be subject to arbitration?

Let me share with you a favorable conclusion of an article written by scholar David Bosco in Foreign Policy Magazine, “Why Is China Giving the Philippines the Cold Shoulder?”:

“The Philippines . . .  signed up a veteran litigator of maritime disputes [Paul Reichler] to fashion the complaint. When I spoke to him recently, he walked me through Manila’s case and explained why none of China’s restrictions on jurisdiction should prevent the arbitrators from ruling on the case.

“He dealt first with the question of whether China’s alleged historical rights in the South China Sea will prevent the arbitrators from considering the case, insisting that the Unclos notion of ‘historic title’ has a very narrow meaning. ‘States can’t claim historical title in the open ocean,’ he said. ‘The concept applies only to waters very close to the coast that have historically been regarded as a State’s internal waters.’

“Reichler also maintains that the case is not about delimitation of maritime boundaries, which is excluded from arbitration, but about the distinct process of determining what China’s and the Philippines’ entitlements in the South China Sea are under Unclos (you can’t delimit maritime boundaries without first determining entitlements, Reichler points out). Nor is the Philippines asking the arbitrators to rule on the sovereignty of several disputed islands in the South China Sea. Instead, the Philippines wants the tribunal to distinguish between islands, rocks and permanently submerged features. Unclos provides clear guidance for making those distinctions, which hinge on whether the formation in question is permanently above water and can sustain human life and economic activity.

“Some observers believe the Philippines has threaded the legal needle. ‘I am optimistic that the arbitrators will decide they have jurisdiction to hear at least some of the issues presented by the Philippines,’ says Peter Dutton, a law of the sea expert at the US Naval War College. He expects the tribunal will find that the Philippines ‘does have rightful claims to the resources in some of the

waters within China’s nine-dash line.’

“There are practical reasons the arbitrators might seek to avoid ruling on the dispute. China’s refusal to participate sends an important signal about its intentions, and the arbitrators might balk at putting Beijing on a collision course with Unclos. But if the panel does rule in favor of the Philippines, the dispute will change. The nine-dash line won’t merely be exorbitant—it will be legally dubious.

“Beijing might shift tack and adopt a more conciliatory approach. Indeed, the arbitration process is slow, and there’s plenty of time left for diplomacy. But China’s cold response to the tragedy of Typhoon Haiyan [“Yolanda”]) doesn’t provide much.”

We are waiting for further developments.