Thursday, July 9, 2015

• Presentation: The Philippines, China and International Law in the West Philippine Sea (South China Sea)

Presentation by Philippine Solicitor General Francis Jardeleza in the University of the Philippines Law center on Feb. 27, 2014.

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China vs. the Philippines: Will International Law Resolve South China Sea Disputes?
Will the 21st-century global order be led primarily by might and military muscle or rights and norms? We may get an answer in the near future.

The Philippines' quest for peacefully resolving territorial disputes in the South China Sea has entered a critical stage. After more than two years of hard work and extensive preparations, culminating in the thousand-page-long memorial, Manila has the chance to convince the arbitral tribunal at The Hague that its case deserves to be heard.

The ultimate aim is to ensure all claimant countries honor their treaty commitments under prevailing international legal regimes, particularly the United Nations Convention on the Law of the Sea (UNCLOS), which has been ratified by the Philippines (1984) and China (2006) alike. The key hurdle, however, is the question of jurisdiction: That is to say, whether the arbitral tribunal, formed under the aegis of the UNCLOS, has the mandate to rule on the Philippines' case against China.

The Philippines won't be able to even defend the merit of its case, unless it convinces the court that compulsory arbitration is the way forward. What is at stake is not only the merits of the Philippines' arguments, and the questionable character of China's sweeping claims, but also the very credibility and viability of international law as the primary arbiter for resolving seemingly intractable territorial spats.

This is precisely why the whole international community is anxiously following the ongoing proceedings at The Hague, with Asian countries such as Vietnam, Malaysia, Indonesia, Thailand and Japan sending observers to the hearings.

A Brave Move
The Philippines has been praised by nations around the world, because it is the first country to have dared (under Art. 287 and Annex VII of UNCLOS) to take China to the court. Throughout my visits to and interactions with colleagues and officials from sympathetic countries across the Pacific region, I have constantly been told about how they genuinely admire the Philippine government's decision to resort to compulsory arbitration despite China's vehement opposition.

Though China has refused to engage the legal proceedings, claiming "inherent and indisputable" sovereignty over almost the entire South China Sea, the UNCLOS (under Art. 9, Annex VII) has not barred the resumption of the arbitration efforts, which kicked off in early 2013. Without a doubt, the Aquino administration has made a very bold decision by taking on China directly -- albeit not through force, but instead the language of law.

Beijing knows it would be very difficult to justify its notorious nine-dashed-line doctrine. As Professor Alexander Proelß, a leading European maritime law scholar, recently told me: "I do not believe that China will manage to provide the necessary evidence concerning all territorial features and marine areas" it is seemingly claiming across the South China Sea.

So China has instead chosen to sabotage the Philippines' arbitration efforts by raising (see its Dec. 7, 2014 position paper, which can be read as an informal counter-memorial) technicality-procedural questions. China has deployed three related arguments that aim to put into question whether the arbitral tribunal should exercise jurisdiction at all.

China cites that the UNCLOS doesn't have the mandate to address sovereignty-related (title to claim) questions, while, invoking Art. 298 back in a note verbale in 2006, China has opted out of compulsory arbitration on issues that concern its territorial claims, among others. China also claims that it is premature to resort to compulsory arbitration, since alternative mechanisms haven't been fully exhausted.

The Philippines' savvy legal team, however, has tried to address the jurisdiction issue by eschewing the sovereignty question, instead focusing on two major issues.

All or Nothing
First, the Philippines has emphasized the importance of clarifying (under Art. 121 of UNCLOS) the nature of disputed features: Whether they are low-tide or high-tide elevations or islands, since this has a huge implication on whether the features can be appropriated at all or can generate their own 200 nautical miles Exclusive Economic Zone (EEZ).

Perhaps the most important argument of the Philippines is that the arbitral tribunal should examine (and ultimately invalidate) China's nine-dashed-line claims, whichare based on pre-modern, questionable, and vague notion of "historical rights/waters". In short, the Southeast Asian country wants to make sure all claimant countries harmonize their claims and maritime behavior along modern, internationally-accepted legal principles -- not obscure doctrines.

In preparation for my book, "Asia's New Battlefield", I had the chance to consult with leading legal experts from across the United States, Asia, and Europe in the past year. My key impression is that the legal community is quite divided on whether the Philippines can overcome the jurisdictional hurdle, since it will have to argue that its case transcends any sovereignty-related question.

Crucially, if the Philippines overcomes the jurisdictional hurdle, then I am confident that Vietnam and other like-minded countries will more seriously contemplate the option of leveraging UNCLOS to rein in Chinese belligerence. Some scholars have raised the possibility of establishment of a "conciliation commission" (under Annex V of UNCLOS) as another mechanism to peacefully resolve dispute, especially if the arbitral tribunal turns down jurisdiction.

There is also the option of the Philippines going to International Court of Justice (ICJ) to directly resolve sovereignty-related disputes, or try to get the support of the UN General Assembly to pass a resolution criticizing China's aggressive behavior and gobbling up of contested features in the South China Sea. (But China, a permanent member of the UN Security Council with huge global networks of support among developing countries, can/has shut down those alternatives. China doesn't recognize compulsory arbitration under ICJ, while the Philippines has expressed reservationsvis-a-vis territorial/jurisdictional issues)

Practically everyone, however, agrees that China has to first clarify sweeping territorial claims, which are neither consistent nor precise. Up to this day, it is not clear whether China is claiming the entire South China Sea or only the features and fisheries and hydrocarbon resources in the area. And if China doesn't even clarify the precise coordinates of its claims, it would be almost impossible to have any viable joint development scheme among claimant countries.

The Philippines' case has also presented a huge dilemma for arbitration bodies under UNCLOS. If the arbitral tribunal turns down jurisdiction, and refuses to even hear the merits of our arguments, then the very viability of international law as a conflict-management/resolution mechanism will come under question.

At the same time, if it decides to push ahead and eventually rule against China, then there is a huge risk that, as a good friend Columbia University Professor Matthew C. Waxman puts it, the arbitral tribunal would be "ignored, derided and marginalized by the biggest player [China] in the region." After all, there are no multilateral compliance-enforcement mechanisms to force China -- a permanent member of the UN Security Council -- to abide by any unfavorable verdict.

In practical terms, the big concern is that while the legal cycle slowly grinds, China is actually changing the facts on the ground on a daily basis. This is why it is extremely important that the Philippines remains vigilant, and primarily focuses on tangibly guarding its interests on the frontline by fortifying its position on features it already controls, negotiate necessary measures (i.e., hotlines) to prevent unwanted clashes and escalation in the high seas, and employ all instruments in its toolkit to protect its territorial integrity.

An urgent concern, in particular, is to prevent China from imposing an Air Defense Identification Zone (ADIZ) in the Spratly chain of islands, which may give Beijing the ability to choke off the supply-lines of other claimant states and dominate arguably the world's most important maritime highways.

The truth is: the Philippines can't only rely on UNCLOS to address this critical situation, and it will need the help of its allies (particularly the United States and Japan) and partners across the world as well as the full support of the Filipino nation.

By Prashanth Parameswaran
July 08, 2015

On July 7, the Arbitral Tribunal at The Hague began its hearing on the case submitted by the Philippines against China regarding its South China Sea claims. As we get bombarded with news updates in the coming weeks, it is important to keep the broader significance of the case in mind.
In terms of principle, the case is important because it is a bold attempt to begin to untangle the knotty South China Sea disputes through the rule of law rather than the might makes right approach that China has been using over the past few years. Since 2009, China has increased its assertiveness in the South China Sea, including by seizing Scarborough Shoal from the Philippines in 2012, forcibly moving an oil rig into Vietnamese waters in 2014, building artificial islands, and encroaching even into the southernmost extent of its nine-dash line reaching into Malaysia and Indonesia (See: “Malaysia’s South China Sea Approach: Playing it Safe“). This disturbing and destabilizing pattern has continued despite repeated protests that it violates the United Nations Convention on the Law of the Sea (UNCLOS), other agreements like the 2002 Declaration on the Conduct of Parties Beijing inked with Southeast Asian states, and general principles like the peaceful settlement of disputes (See: “Does ASEAN Have a South China Sea Position?“).
What is the recourse for smaller states when a larger actor is breaking the rules and infringing on their rights? And is there a way to impose some kind of diplomatic cost on the offending state? This is where the case comes in. While various states have been crying foul and appealing to international law, there is no substitute for a neutral court making a decision on legal questions based on a common set of rules. This is what Philippine Foreign Secretary Alberto del Rosario meant when he said to the tribunal earlier this week that the court’s decision has global significance because it has an “impact on the application of the rule of law in maritime disputes.” In addition to the capitals world over that will be monitoring the decision closely, Malaysia, Indonesia, Vietnam, Thailand and Japan are directly observing the proceedings after being permitted to do so by the court, even though it declined to open the hearing to the public.
How does principle translate into practice? In the case, the Philippines is asking the court to rule on the validity of China’s nine-dash line as a maritime claim; the status of individual features that China occupies; and Beijing’s interference in Philippine activities in the South China Sea.  If, in the best case scenario, the court largely rules in Manila’s favor on these questions, it may push China to significantly redefine its illegal nine-dash line. Since other South China Sea claimants have also registered their opposition to or sought clarification about China’s claims in this respect, the decision would benefit them as well in trying to settle their disputes with Beijing further down the line. It also has broader importance for other actors like the United States and Japan, since China’s claims and the way it secures them has increased tensions over freedom of navigation and overflight (See: “How Would the US Challenge China in the South China Sea?“).
However, as significant as this case is, it is also important to point out that the extent to which it matters both in principle and its practice will depend on several factors. The first is the way the court rules. Procedurally, the court will begin by first determining if it has jurisdiction and whether the Philippines’ claims are admissible before deciding on the merits of the case itself. Assuming it gets down to the merits of the case, even those sympathetic to the Philippine position know that its case is far from a clear-cut one. Indeed, the court may very well decide in Manila’s favor on some, but not all of its claims (eg. agree that the nine-dash line is not a valid maritime claim but not agree on the legal status of certain features).
In this instance, in practice Beijing would be able to just modify the nine-dash line but still maintain its claim to most of the waters there through claims generated from these features. While that would make China’s claims less extensive and clearer, it would be a much more limited victory than Manila and its supporters would like. More generally, in principle, a ruling that is only partly in favor of the Philippines would also muddy the waters and be less in line with the moral clarity that some prefer on the case.
That bleeds into the second factor which affects the significance of the case – which is China’s own response to the decision. China has already declined to participate in the case while continuing its assertiveness in the South China Sea, including the construction of artificial islands which it claims it is winding down for now (See: “The Truth About China’s South China Sea Land Reclamation Announcement“). Looking ahead, given its past behavior, Beijing is expected to ignore a ruling that is against its favor on the basis that the tribunal – in its view – lacks jurisdiction. In this case, its assertiveness in the South China Sea would continue. Alternatively, even if – either due to intense diplomatic pressure, its own volition, or a mix of both – Beijing ignores the court’s decision and modifies the nine-dash line further down the line, as stated earlier it may choose to do so to a very limited extent that is insufficient to mollify the concerns of other claimants.
If these factors end up reducing the significance of the case drastically, the consequences could be dire not just for the Philippines, but other countries as well. For the Philippines, there may be general cynicism about the legal route, especially since Manila has had to suspend some of its military and economic activities in the South China Sea while pursuing this case while Beijing has been free to do as it pleases while refusing to participate. Indeed, some have already questioned the wisdom of the Philippine quest for the ‘moral high ground’ since it risks widening the already glaring asymmetry between it and Beijing for an uncertain outcome (See: “The Truth About Philippine Military Modernization and the ‘China Threat’“).
For other claimants, it could send a clear and concerning signal that for all the rhetoric, rule of law is rather ineffective in reality when it comes to curtailing Beijing’s assertiveness, and that they must increasingly look to further developing their own capabilities to preserve their claims. The legal route is not the only tool that these smaller claimants have, but it is the only one where they get a fair hearing relative to China and the outcome is not rigged in the latter’s favor. Beijing’s relative military superiority, foot-dragging on a binding code of conduct, and expansive claims, already severely restrict their options, and this would be another blow in that respect.
As for outside actors like the United States and Japan, they may rely even more on building ‘coalitions of the willing’ to emphasize the primacy of rule of law in the South China Sea in the absence of a clear verdict in favor of it in court. International discourse on the legality of South China Sea claims will also continue to lack the clarity and decisiveness of such a verdict. Needless to say, that’s not a very comforting thought. As China has shown over the past few years, it is perfectly willing to exploit ‘grey zones’ – conceptual or otherwise – to its own advantage.