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Philippines vs. China: International Law or Rule of the Jungle?

The Huffington Post The Huffington Post 31/10/2015 Richard Javad Heydarian

2015-10-31-1446250786-9382746-UN_General_Assembly_hall.jpg © Provided by The Huffington Post 2015-10-31-1446250786-9382746-UN_General_Assembly_hall.jpg

Earlier this month, many Filipinos, who are sick and tired of chronic corruption, were annoyed by the United Nations' (UN) decision to slam the Filipino government's detention of former president Gloria Macapagal-Arroyo, one of Philippines' most unpopular politicians in history.
The UN High Commission on Human Rights Working Group on Arbitrary Detention (WGAD) censured the Aquino administration's -- among the most popular in Philippine history -- whimpering efforts to ensure accountability on the part of former high-level officials, who have allegedly indulged in large-scale graft and misuse of public office. The WGAD criticism came on the heels of Amal Alamuddin Clooney's efforts to end Arroyo's years-long detention, raising eyebrows among many of George Clooney's diehard fans in the country.
Anyone with a basic understanding of the Philippine justice system is well aware of the fact that the country's bureaucracy is simply too ill-equipped and undermanned to handle high-profile trials with expediency and full competence. To his credit, President Benigno Aquino has invested much of his political capital in pursuing high-profile targets, mostly from the previous administration and the opposition. Some asked why the UN is picking on the Philippines, which is among the very few surviving (albeit highly imperfect) liberal democracies in Asia.
They asked, quite reasonably, why isn't the UN instead pursuing autocratic regimes with more problematic human rights record and actually support the Filipino government's efforts to address systematic corruption; thinking of the UN, they wondered: where is the love?
Then, all of a sudden, came the widely-anticipated decision of an arbitration body, formed under the aegis of UN Convention on the Law of the Sea (UNCLOS), to exercise jurisdiction on the Philippines' arbitration case against China. Suddenly the UN is no longer perceived as annoying as weeks earlier. It is now seen as the island nation's best hope to equalize a highly asymmetrical maritime showdown with a Northeast Asian juggernaut.
Legal Breakthrough
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 and Annex VII of UNCLOS), the Arbitral Tribunal 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).
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 Arbitral 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 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 while leaving the rest for either clarification or further consideration since they "do not possess an exclusively preliminary character." So far, it 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.
Ripple Effect
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 can also leverage the UNCLOS to defend their claims against a revanchist China. This means that Beijing is confronting the prospect of multiple arbitration cases against its sweeping and dubious nine-dashed-line claims, which cover 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 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.
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 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.
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.

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