Thanks to Rappler, I gained access to the full-length “Award on Jurisdiction and Admissibility” of the arbitral tribunal that is seised of the case between the Philippines and the People’s Republic of China. I went through all the pages, all one hundred sixty plus pages of the judgment. Round 1—that part of the legal joust that settles the question of jurisdiction and admissibility. Clearly, had we not made it through this stage, that would have been the end of recourse to arbitration, and probably would have prejudiced our claims immensely.
What the “Award” makes clear is that arbitration, as the Convention on the Law of the Sea does provide, is the “default setting” when parties have no prior agreement as to how disputes are to be resolved between them. Although an arbitral tribunal is technically not a court, it is not uncommon for judgments of arbitral tribunals to be cited as authority in international law. The “Clipperton Island” and the “Island of Palmas” cases are the best examples of arbitral awards that are read as classics in respect to territorial claims. If there is a pacific and institutional mode of settling disputes, then clearly, that party that resorts to maritime maneuvers, that recklessly reclaims land and constructs structures with abandon in the disputed area is the provocateur. It is the bully. And already, in the wake of the arbitral award that has asserted the jurisdiction of the arbitral tribunal, nations of the world have called upon China to desist from bullying. It is the nature of bullies not to buckle down immediately, but they eventually do when it becomes clear that they stand alone in their corner!
But what we cannot litigate before the tribunal is also clear: territorial claims. So we should not expect any pronouncements as to sovereignty over the Kalayaan Islands or that portion of the Spratleys to which we lay claim. That, the tribunal has clearly ruled, is beyond the purview of the dispute-settlement mechanisms provided for by the Convention on the Law of the Sea. Several columns ago I already urged just that: We should be clear about what we claim. Are we asserting sovereign rights, or are we asking for a judgment on our claims to territory? It is now clear that only those acts of the People’s Republic of China that we allege to be in contravention of the conduct exacted of all states in respect to maritime regions can be the subject of the arbitral proceedings. Neither can boundaries and margins be passed upon, because these, by express provision of UNCLOS, have to be negotiated in treaties.
China has stood pat by its decision not to participate—hoping to make of the arbitral proceedings an exercise in futility. It will not succeed. The tribunal has articulated the law: It has jurisdiction, and China, as a state-party to the Convention on the Law of the Sea, is bound by the compulsory dispute settlement mechanisms it provides. The PROC will not now be allowed to throw its weight around in the international arena by refusing to participate in settlement proceedings, hoping thereby to render them effete. No nation will ever be safe if mighty nations are allowed to render dispute settlement nugatory by the expedient of non-participation. The United States too, withdrew its submission to the jurisdiction of the International Court of Justice in the case Nicaragua brought against it for its covert support of the “contras” against the Sandinista government. That did not prevent the ICJ from rendering a judgment that has found its way into tomes and treatises of international law, and that made clear that the US was in the wrong!
In fact, China did participate to some degree and it was not totally unrepresented in this phase of the proceedings —and presumably, in the succeeding episode as well. For the arbitral tribunal rightly relied on its declarations, policy statements, official releases and made them part of the records of the case. Unilateral declarations, it has been held in international law, are, under the right circumstances, binding against the states that make them.
There are some who rue our recourse to arbitral proceedings and who insist, quite obtusely, that we should have talked things amicably with China. But we did, and we groveled, and we kowtowed—all to no avail. China holds on to its map that places it at the center of the world, the intractable Middle Kingdom. Why, oh why, would it bother for the please of a dwarf-state like the Philippines? So we are right in seeking formal dispute settlement and those who take a dim view of the present proceedings are either dim-witted or naively trusting of China. Nationalist feelings, it is claimed, will only be fanned in the Chinese populace by the pronouncements of the tribunal adverse to them. Let them be so fanned, and let similar nationalist sentiments be fanned in our own people. it is time to make of the global community a regime of laws and not of men (and women)!
rannie_aquino@sanbeda.edu.ph
rannie_aquino@csu.edu.ph
rannie_aquino@yahoo.com