With increasing globalization and the economic interdependence of nations necessarily comes a greater focus on geopolitics and a watchfulness on the conduct of states that can, or do, pose threats to the safety and sovereignty of others.
As an archipelago, the Philippines is vulnerable to attack and other malicious acts, thus the attention focused on China and its continued saber-rattling in the region, despite having its own internal problems. Many seek to better understand the legal aspects of the issue, particularly with regard to the United Nations Convention on the Law of the Sea (UNCLOS) and its relevance to the Philippine case.
Lawyers Saul Q. Hofileña, Jr. and Daniel Soriano Hofileña offer a succinct primer on the matter in their latest book, Turmoil at the South China Sea: The Philippines vs. China Arbitration and Other Relevant Matters.
The father-and-son tandem, international law experts, have teamed up before to explain legal matters in clear and concise language accessible to the educated layman. In this slim volume they present the more important provisions of UNCLOS and the decision in the Philippines vs. China case, which they say has been called “the most important case in international law in this century.”
To give more context to the issue, the authors provide the case of Magallona v. Ermita, which is related to the archipelagic baselines delineating the scope of the country’s maritime zones and continental shelf. The authors believe the case helps explain the Arbitral Tribunal ruling on how the UNCLOS was to be applied to the Philippine case.
‘Turmoil’ is presented in question-and-answer format, making it useful to law students and other legal professionals seeking to understand more about the topic.
According to Atty. Saul Q. Hofileña Jr., “Contrary to popular belief, it was not the Permanent Court of Arbitration (PCA) that decided the case. Rather, it was the Arbitral Tribunal created under Annex VII of the [UNCLOS] that resolved the issues raised by the Philippines.
“Although China refused to participate in the arbitration, it cannot be denied that China gave its consent to be bound by the decision of the Tribunal created under Annex VII of the UNCLOS when it signed and ratified the Convention because the provisions on compulsory arbitration were contained in the body of the Convention itself.”
But did not the Tribunal set out the parameters of the maritime zones, and therefore the scope of the country’s sovereignty?
Hofileña Jr. clarifies that the Tribunal “did not rule on any question involving sovereignty or maritime delimitation. It only ruled on matters which concerned the application and interpretation of the [UNCLOS]. This is because sovereignty and delimitation issues are beyond the pale of jurisdiction of the tribunal.”
Moreover, he adds, “The ruling on Scarborough Shoal was not one of sovereignty but of artisanal fishing rights.”
The book is also highly significant to the public’s understanding of the issue because it outlines “how the lawyers for the Philippines upended China’s claims to historic rights over the South China Sea.”
Hofileña Jr. explains further: “The lawyers for the Philippines approached the case this way: China claimed the South China Sea on the basis of historic rights because according to the Chinese, they have been navigating and using the seas for a long time and therefore it belongs to them. That same argument was used by Spain centuries ago when their kings referred to the Pacific Ocean as the Lago Español or the Spanish Lake.
“Very astutely, the lawyers for the Philippines surmised that even if they hypothetically admit China’s ‘historic rights’ to the South China Sea, by signing the Convention, China had effectively waived such ‘historic rights’ as far as the Philippines is concerned.”
What about China’s ‘nine-dash claim,’ then, does it hold water?
“China’s claims to historic rights, or other sovereign rights or jurisdiction,” Hofileña Jr. says, “With respect to the maritime areas of the South China Sea encompassed by the relevant part of the nine-dash line, are contrary to the Convention and without lawful effect to the extent that they exceed the geographic and substantive limits of China’s maritime entitlements under the Convention.”
Both Hofileñas expound further on the matter in the book, which will aid in comprehending laws that involve Philippine sovereignty and security in relation to the government’s practice of realpolitik from its own interpretation and agenda, with which many may disagree.
As such, Turmoil at the South China Sea is another triumph of savvy and smarts from the father-and-son lawyers who have established themselves as subject matter experts on international law.
Turmoil at the South China Sea: The Philippines vs. China Arbitration and Other Relevant Matters
By Saul Hofileña Jr. and Daniel Soriano Hofileña
2022, 90 pgs, pb, Baybayin Publishing
Dr. Ortuoste teaches communication and creative writing. She is a board member of the Philippine Center of International PEN and a member of the Manila Critics Circle that established the National Book Awards. You may reach the author on Facebook and Twitter: @DrJennyO