Breaking down the Philippines’ legal victory in the West Philippine Sea

From the Thought Leaders section of Rappler (Nov 1): Breaking down the Philippines’ legal victory in the West Philippine Sea (by Richard Javad Heydarian)

'By unanimously voting in favor of exercising jurisdiction on the Philippines’ case, the Arbitral Tribunal effectively rejected Beijing’s efforts to sabotage Manila’s laudable legal effort'   

The widely-anticipated decision of an arbitration body, formed under the aegis of the UN Convention on the Law of the Sea (UNCLOS), to exercise jurisdiction on the Philippines’ arbitration case against China represents a major victory for those who seek a semblance of rule of law in the West Philippine Sea. Interestingly, it happened shortly after (watch out for conspiracy theorists!) the United States deployed destroyers to challenge China’s illegal occupation of features across the Spratly chain of islands.

The Philippines has taken, as the Chinese saying goes, the first step in a journey of thousand miles to ensure coastal states base their claims on modern international law, not obscure claims to historical rights.Thanks to its impeccable and highly creative legal strategy, the Philippines managed to overcome a major hurdle that stood between the prevailing rule of jungle, on one hand, and the promise of rule of law, on the other, in the highly-contested South China Sea.

Though China has formally boycotted the arbitration proceedings at The Hague, and has vigorously argued against compulsory arbitration (under Art. 287, Annex VII of UNCLOS), the Arbitral Tribunal at The Hague has provided the Philippines an unprecedented opportunity to leverage the UNCLOS as a basis to resolve maritime disputes in one of the world’s most critical Sea Lines of Communications (SLOCs).

FIRST VICTORY. File photo of a hearing at the Hague in session

A milestone

Since arbitration bodies under UNCLOS don’t have a mandate to address sovereignty-related issues, the Philippines astutely repackaged its complaint as a maritime delimitation/entitlements issue. This legal acrobatic was nothing short of a stroke of genius -- crafted by a star-studded team of renowned international lawyers carefully assembled by the Philippine government.

China tried to procedurally sabotage the Philippines’ case by citing exemption clauses under the UNCLOS (see under Art. 9, Annex VII), questioning the competency of the Tribunal to adjudicate what Beijing describes as fundamentally sovereignty-related disputes, and argued that compulsory arbitration is premature since all avenues of conciliation haven’t been supposedly exhausted.

By unanimously voting in favor of exercising jurisdiction on the Philippines’ case, the Arbitral Tribunal effectively rejected Beijing’s efforts to sabotage Manila’s laudable legal effort. Despite China’s refusal to participate in the proceedings, the tribunal judges (under Art. 9, Annex VII) have proceeded with arbitration, but will (under Art. 5, Annex VII) continue to provide Beijing the opportunity to present its case through informal channels like, say, positions papers and statements by Chinese public officials. (So we could expect China to release another position paper on the jurisdiction verdict soon.)

In a 10-page summary, the judges argued that the Philippines’ case “was properly constituted” and that the Southeast Asian country’s “act of initiating this arbitration did not constitute an abuse of process [as asserted by China].”Reassuringly, it argued that “China’s non-appearance in these proceedings does not deprive the Tribunal of jurisdiction,” and “international law does not require a State to continue negotiations when it concludes that the possibility of a negotiated solution has been exhausted.”

In short, the Philippines was right to resort to compulsory arbitration, because negotiations with an intransigent China were going nowhere. The Tribunal, however, didn’t exercise jurisdiction on all of the Philippines’ arguments against China, opting to cover 7 items. But other items were left for either further clarification or further consideration since they “do not possess an exclusively preliminary character.”

So far, the Tribunal has exercised jurisdiction on the determination of the nature of disputed features (see Article 121) such as Scarborough Shoal as well as mischief, Gaven, McKennan, Hughues, Johnson, Cuarteron and Fiery Cross reefs; the environmental impact of China’s activities near Scarborough and Second Thomas shoals; and aggressive maneuver against Filipino vessels near the Scarborough Shoal.

Legal multiplier

Having overcome the jurisdiction hurdle, the Philippines has set an important precedence, which can be exploited by other claimant states against China. Based on my exchanges with leading Vietnamese experts earlier this year, my sense is that Hanoi has been carefully watching whether Manila can overcome the jurisdiction hurdle before seriously preparing a similar suit against China.

Now that the jurisdiction is cleared, at least on almost half of the Philippines’ arguments, we an anticipate what I call a “legal multiplier”, whereby other small claimant states such as Vietnam and Malaysia could also leverage the UNCLOS to defend their claims against a revanchist China.

Obviously, any prospective legal maneuver by other claimant states will be tailored to the specific nature of their disputes with China -- Vietnam, for instance, has disputed islands both in the Paracels and Spratlys -- as well as the texture of their overall relations with Beijing. Unlike the Philippines, both Malaysia and Vietnam are heavily dependent on China in economic terms, and none of them enjoy a treaty alliance with external powers like the United States.

But even if they won’t actually file a case proper, they can more credibly threaten China with doing so. This means that Beijing is confronting the prospect of multiple arbitration cases against its sweeping and dubious nine-dashed-line claims, which covers a huge chunk of the West Philippine Sea and much of the South China Sea -- an artery of global trade.

In the coming months, the Philippines will have to defend the merit of its arguments before the Arbitral Tribunal, while hoping that the judges will also exercise jurisdiction over its other (and more crucial) arguments, particularly with respect to the validity of China’s concept of historical rights, its aggressive posturing within the Philippines’ Exclusive Economic Zone (EEZ), and massive construction activities across the Spratly chain of islands.

Tag team

So far, the Philippines has a good chance of, at the very least, invalidating China’s sovereignty claims over land features such as Subi (close to Philippine-held Thitu Island) and Mischief (close to the Philippine-controlled Second Thomas Shoal and Reed Bank). The Philippines argues that since these land features were originally low-tide-elevations, they aren’t entitled to their own territorial sea and exclusive economic zone (EEZ).

Interestingly, America’s freedom of navigation (FON) operations close to Chinese-held features in the area is also predicated on the same argument. For Washington, it has the right to conduct surveillance operations close to Chinese-controlled features such as Subi and Mischief reefs, simply because these are --- prior to their artificial transformation by Chinese reclamation activities -- low-tide-elevations that can’t be appropriated to begin with. (READ: US warship sails near islands claimed by China)

Unlike China, America isn’t a signatory to UNCLOS -- thanks to the intransigence of a vocal minority in the US senate, who refuse to ratify the treaty -- but it actually follows its relevant provisions as a matter of customary international law. And this is why America has allowed Chinese military vessels to roam its EEZ in the Pacific Ocean, even if China refuses to reciprocate accordingly.

In effect, the Philippines and America are acting as a tag team, one deploying its muscles to counter China’s dubious claims, while the other dispatching its best legal minds to highlight China’s contravention of international law.

Nonetheless, there is no room for triumphalist celebration. The Tribunal is also yet to exercise jurisdiction on more important elements of the Philippines’ case, particularly regarding the validity of China’s nine-dashed-line claims and doctrine of historical rights as well as its aggressive reclamation activities and posturing within the Philippines’ EEZ and the Spratly chain of islands. The Philippines, the Tribunal has announced, will have “to present oral arguments and answer questions on the merits of the Philippines’ claims and any remaining issues deferred from the jurisdictional phase.”

China has the ultimate option to ignore any unfavorable outcome, and double down on its ongoing efforts to consolidate its claims across the South China Sea. But the reputational costs, and corresponding diplomatic backlash, will surely undermine China’s soft power and bid for regional leadership.

[The author teaches political science at De La Salle University, and is a regular contributor to Asia Maritime Transparency Initiative of Center for Strategic and International Studies (CSIS) in Washington D.C. His latest book is “Asia’s New Battlefiled: US, China, and the Struggle for Western Pacific” (Zed, London). An earlier version of this piece was published on Huffington Post.]

http://www.rappler.com/thought-leaders/111343-philippines-legal-victory-west-philippine-sea