Why The Hague Ruling on China-Philippines Dispute Defective?

The five Arbitral Tribunal judges in the Permanent Court of Arbitration, The Hague. (Photo from: Permanent Court of Arbitration)

The five Arbitral Tribunal judges in the Permanent Court of Arbitration, The Hague. (Photo from Permanent Court of Arbitration)

On my articles, “China-Philippines Scarborough Shoal Dispute: Will There Be Another Falklands War in Asia? and “Analysis: Philippines Weak Claims Over Scarborough Shoal“, my assessment was to settle it outside the provisions of the legal “nuts and bolts” of the United Nations Convention on the Law of the Sea or UNCLOS. Both claimants must talk and exercise the best diplomacy could possibly be afforded for the sake of respect and camaraderie in all Asian nations. Or else, another Falkland war might be ticking.

It isn’t only absurd to arrive at that perturbing situation but also tempting to hover over an exaggeration of analysis or what we call the analysis paralysis syndrome. But I think that Benigno Aquino government has just paralyzed the entire core values of diplomatic actions when the Permanent Court of Arbitration (PCA) ruled in favor to the Philippines’ claim.

The Hague’s ruling on China-Philippines dispute is not only a clear and unimaginable affront but also an outright disrespect to the core sovereignty of China by its historical claim, a decade and decades long standing.

A Logical Story That Still Counts

Just like claiming a piece of land that this single John Ho has been keeping with for decades from his past generations, he constantly claimed it over and over a considerable long time ago without hearing any such assertive reactions from the face of the Earth. Then, he declared it part of his properties, where his inherent rights rest upon it, even though there hasn’t any single document either from Land Council or from Corners of the Earth to attest to it.

Then, here comes a man named John Doe, who just woke up from the reality of the world. Yet, he has all the attestations from Land Council showing a quantum of proof of all his taxes he paid for that chunks of rocks and lands for not so long ago. This is just to show or to hint that he is reclaiming what he has just been thought were his properties by virtue of documents by documents, especially by virtue of the latest document from Land Council. This document gives rights to John Doe who paid taxes to an undeveloped property, providing him further a specific surplus right over the other properties that are adjacent and proximate the others.

China-Philippines dispute can be demonstrated in that story—a historical and long-standing claim against a claim based on law (international law) and a considered acquiescence for a considerable longer time than it should be realized earlier.

Then, what makes the Hague’s ruling defective?

My take on China-Philippines dispute over the disputed islands in the South China Sea involves three underlying issues:

  • China’s interest,
  • the United States’ interest, and
  • the Philippines territorial claim based on the international law

The Philippines’ claim based on UNCLOS gives us the only clear, legal issue. That was we thought at first about it.

Speaking of UNCLOS, the Philippines ratified it on May 8, 1984, with reservations. China ratified it on June 7, 1996, again with not only reservations but also an expression so clear and should be binding that China opposes Section 2 of Part XV of UNCLOS with respect to all categories of disputes.

Moreover, China’s reservation upon its ratification of UNCLOS clears that:

…reaffirming its sovereignty over all its archipelagos and islands as listed on its 1992 Law on the Territorial Sea and the Contiguous Zone promulgation….

This reservation exactly affirms China’s 1935 claims of the following:

  • islands that are part of Zhongsha islands,
  • 1956 claims for geographical basis, and
  • 1958 Declaration on the Territorial Sea.

Then, what made the Philippines and the Permanent Court of Tribunal (PCA) seemingly so disrespectful and so unilateral to circumvent the issue in the name of the rule of law?

Reading the whole decision of the Tribunal, one may not exactly find any defect not consistent to UNCLOS. Definitely so because UNCLOS is their prime basis of those claims. The Tribunal simply disregards outright the historical claim of China without buying a little hint of consideration on the reservations China had made when it ratified UNCLOS. So exclusive a reading of the law the Tribunal had made!

On one view, UNCLOS provisions providing the Philippines legal rights to assert proximate islands are already weakened and considered nullified through a historical, decades-long standing assertion of China over some islands in the South China Sea, especially on islands China claimed that are part of Zhongsha islands.

By noting this historical claim of China, the Philippines’ basis of claims is as jarring, jaw-dropping, and as staggering in a grand manner as what the legal language of that international law (UNCLOS) may unilaterally say so!

A written expression tantamount to an exclusion of a thing or two from the general rule cannot be simply set aside. That’s the primary reason, I assume, why the Philippines, China, and the rest of the countries that though they had ratified UNCLOS, they, beforehand, decided with conviction to express their reservations—be it a defiance or an affirmation to a provision—were absolutely as binding as a rule of law in the international scope based on the dictates of my sense of justness.

The Hague’s ruling was defective outright! As simply as I could put the issue this way:

Although the issue that was brought upon

was founded by an assertion based on all legal means and interpretation,

the issue, still, shouldn’t be taken at its face value.

There is the legal assertion in one hand, as there is a historical,

a long-standing assertion on the other hand.

By simply invoking UNCLOS that way is simply denigrating the historical claim

of the equally sovereign state. Although there could be no way for any law

to consider a historical claim as legally binding as such

when there was a clear unified law that provides legal claim

as more binding than the other way around, still the Hague’s ruling

founded mostly on UNCLOS

can be as defective, shortsighted as a one-man party rule

in an arbitration process that basically defeated

the very meaning of the process.

In a sloppier than ever talk, this could be better understood this way: How could it be called an agreement when there’s only one party that agreed upon?

The Hague’s ruling, again, has shown defective at the early on when it accepted the case submitted by the Philippines and heard the case further. Assuming for the sake of argument, given these following premises:

  • That, an arbitration case cannot be called as such with only one party is heard, guided by the fact that the other party called in that case had expressed opposition to the arbitration provision when it ratified the very law.
  • That,  as a competent court existed and founded on such very unity that is depicted by the provisions of UNCLOS, which created that court, guided by the fact that ratifying countries had expressed their reservations consistent to their very interest, territorial claim, and sovereignty.

Now, how can that court act as competent as such when the involved party, upon ratifying the very law that created such court, expressed its opposition to the arbitration proceeding and had expressed reservations reaffirming its sovereignty over its decades-long standing claim?

Lastly, how can that court enforce its ruling when at the very substance it has no police power to implement its decision made?

Too beautiful, isn’t it? Not only does it costs time, resources, and effort but also the relationship with the international agenda and among Asian nations, especially with China.

What makes the ruling effective, by the way?

Unfortunately, it becomes only effective for the United States to advance its strategic military and intelligence positioning in the vast Asia and the Pacific. How was that? Where is the Philippines in the game? Are we being politely used, or are we just being strategically outwitted and misled with legal calisthenics? ▲

Related Articles:

  1. EXPLAINER: Philippines’ 5 arguments vs China (by Paterno Esmaquel IIRappler. July 9, 2015, 1:54 PM. Updated: July 10, 2015, 11:57 AM.)
  2. The issue of sovereignty in the PH-China dispute over the WPS (by Mauro Gia Samonte, the Manila Times. June 18, 2016, 12:57 AM.)
  3. COMMENTARY: Puppet tribunal in S. China Sea case does not represent int’l law (by Fei Liena, Han Mo. Editor: Mu XuequanXinhua. July 14, 2016, 23:26:22.)
  4. Overseas Chinese in Britain protest against S. China Sea award (by Xinhua. July 17, 2016, 12:42:28.)

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Former stringer for Allvoices and contributor for Yahoo. Had worked as an editor in publishing companies for years and so far has earned some units in MBA.
Aside | This entry was posted in COMMENTARIES & INSIGHTS, Opinion and tagged , , , , , , , , . Bookmark the permalink.

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