Enforcing the arbitral award

How can the arbitral award in the South China Sea (SCS) be best enforced? Those who fought for and won the award want to use proactive ways, even at the risk of offending China, of making her more intransigent, and of weakening our political and economic ties with her.

What to enforce. On the other hand, the winners in the last elections (let’s call them the incumbents) want to use friendly persuasion and diplomacy, and to remind China of our legal rights “at the right time and occasion.” They frown on hostile and saber-rattling provocations.

For clarity’s sake, let us review what is to be enforced. First, the 501-page unanimous decision or award ruled that China’s nine-dash line (which claims almost the entire SCS) contravenes the United Nations Convention on the Law of the Sea (Unclos) and is thus illegal.

Consequently, the SCS is open to freedom of navigation for all countries. This is now being enforced by the great powers. American warships, submarines and jets freely roam the SCS. Even our rather antiquated vessels and planes also navigate the area, countering Chinese warnings with “We are sailing in our waters (or flying in our air space).”

Illegal incursions. Second, it also ruled as unlawful the Chinese incursions into our Unclos-recognized maritime zones, namely, our 12-nautical-mile (NM) territorial sea (TS), 24-NM contiguous zone (CZ), 200-NM exclusive economic zone (EEZ), and 350-NM extended continental shelf (ECS).

The award applied these four zones to four kinds of geologic features in the SCS: 1) “low-tide elevations” and 2) “submerged banks,” both being below water at high tide, generate no maritime zones; 3) “rocks,” being above water at high tide, are considered land territory but generate only a TS; and 4) “islands,” which in their natural condition can sustain human habitation, generate all four zones. Reclamations cannot change the legal status of such features.

Third, the decision held that none of the disputed maritime features is an “island.” But Scarborough Shoal (located 124 NM west of Zambales) and Gaven, McKennan, Johnson South, Fiery Cross, and Cuarteron Reefs in the Spratlys are “rocks” which are thus entitled to a TS.

Notably, China has reclaimed and constructed airports, seaports and other structures on these five “rocks,” as well as on two reefs that do not have maritime zones: Subi and Mischief.

Notably, too, China occupied but has not built structures on Scarborough. Since the award did not rule, and the Philippines did not claim, ownership of these five Spratlys “rocks” and of Scarborough, the award may not be enough to evict China from them. The Tribunal has jurisdiction to rule only on water or sea rights, not on land ownership.

Enforcement problem. On these rocks and reefs rest the primary problem of enforcement. The incumbents claim that only the United States could have prevented the Chinese from occupying and building on them. Forcefully evicting them now could lead to nuclear war, which nobody wants.

The incumbents say that the best way to solve the impasse is to befriend and negotiate with China. This strategy has brought immediate fruits: China allowed Filipinos to fish at Scarborough and, as earlier mentioned, desisted from building any structures on it. It promised billions of dollars in investments, trade and aid. It has not asserted Scarborough’s 12-NM territorial sea that overlaps with the Philippine EEZ from Zambales.

On the wider geopolitical sphere, President Duterte has become a sought-after power broker between US President Donald Trump and Chinese President Xi Jinping, an unthinkable role if the Philippines were still regarded by China as a US pawn.

The incumbents were given by our people the mandate to steer our ship of state. In particular, the president is granted by law the prerogative to mold our foreign policy. Absent grave abuse of discretion, this prerogative is respected by the judiciary.

Happily, the incumbents committed to conduct our foreign affairs prudently, without waiving or diluting the legal rights granted by the arbitral award, which could be availed of in the future, should negotiation and diplomacy fail. On this caveat, let us wish them well.

Comments to chiefjusticepanganiban@hotmail.com