Arbitral PH vs China: A colossal deception

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First of 4 parts
IT is a colossal deception that the Philippines in 2016 won the arbitration suit against China involving our disputes in the South China Sea and that the country should pursue the “enforcement” of the arbitral tribunal’s “award.”

If it was a victory at all, it was a pyrrhic one, not a few international law scholars have concluded, That means that the damage to Philippine interests, and to the integrity of arbitration based on the provisions of the UN Convention on the Law of Sea (Unclos), made it tantamount to defeat.

(Salako, S. E. in “Entitlement to Islands, Rocks and Low-tide Elevations in the South China Sea: Geoeconomics versus Rule of Law” and Nordquist, Myron, “Unclos Article 121 and Itu Aba in the South China Sea Final Award: A Correct Interpretation”)

President Benigno Aquino 3rd and his foreign secretary Albert del Rosario told the country when it filed the suit in January 2013 that it would recover Scarborough Shoal (Bajo de Masinloc), which Aquino and del Rosario lost to China in June 2012 because of their bungling of the two-month-long stand-off between Philippine and Chinese vessels in the area, as extensively discussed in previous columns. Aquino’s plea for the US to intervene for us to get back Bajo de Masinloc, through American warships escorting our ships back into its lagoon, was also rejected by President Obama.

Del Rosario also claimed that the arbitration would resolve the country’s other disputes with the Chinese in the Spratlys area, specifically its occupation of seven reefs it claims China has no sovereignty nor sovereign rights over, but are within the Philippines’ exclusive economic zone (EEZ). “The Philippine choice of arbitration under Unclos is the last resort for a peaceful resolution of disputes in the West Philippine Sea after exhaustion of political and diplomatic approaches,” he said in his press statement.

But the Philippines failed to recover Scarborough through that arbitration suit. The tribunal ruled that it had no jurisdiction on this Philippine claim and that it was not an issue of maritime entitlements under Unclos, but of sovereignty over an island. The tribunal merely admonished China that it must allow Filipino fishermen, as well as those from other nationalities, to “engage in traditional fishing at Scarborough Shoal.”

The arbitration tribunal did not rule that Bajo de Masinloc was part of Philippine territory, nor that the Chinese occupation of it was illegal under the Unclos or any international law. The tribunal merely ruled:

“Scarborough Shoal has been a traditional fishing ground for fishermen of many nationalities and declares that China has, through the operation of its official vessels at Scarborough Shoal from May 2012 onwards, unlawfully prevented fishermen from the Philippines from engaging in traditional fishing at Scarborough Shoal.”(page 475 of arbitral tribunal’s award, July 2016)

However, the tribunal emphasized that it was not in any way deciding, nor could it decide on which country has sovereignty over Bajo de Masinloc. It had no jurisdiction on the Philippine demand since it was not an issue of maritime entitlements under Unclos — that is, exclusive rights over an area in the sea that extends from a land territory such as the EEZ — but of sovereignty over an area. This was not within the authority of Unclos.

In the very first pages of the “award,” the tribunal pointed out:

“The Convention, however, does not address the sovereignty of States over land territory. Accordingly, this Tribunal has not been asked to, and does not purport to, make any ruling as to which State enjoys sovereignty over any land territory in the South China Sea, in particular with respect to the disputes concerning sovereignty over the Spratly Islands or Scarborough Shoal. None of the Tribunal’s decisions in this Award are dependent on a finding of sovereignty, nor should anything in this Award be understood to imply a view with respect to questions of land sovereignty.” (pages 1 and 2 of the Award)

The tribunal indeed repeated this important point several times in its award:

— “The question of sovereignty over Scarborough Shoal will remain entirely unaffected by the Tribunal’s determination.” (page 176)

— “The Tribunal records that this decision is entirely without prejudice to the question of sovereignty over Scarborough Shoal.” (page 318)

— “The Tribunal has not addressed — and will not address — the question of which State has sovereignty over Sandy Cay, Thitu, or Scarborough Shoal and would thus have an entitlement to the surrounding territorial sea.” (page 296)

The tribunal’s decision on Bajo de Masinloc even indirectly strengthened China’s occupation of the shoal: China could now argue that even the ruling on the Philippine suit against China had not declared its occupation of the shoal illegal or violative of international law, even if the Philippines also claims that it is.

The tribunal merely admonished China that since it was traditional fishing grounds, it must allow Filipino fishermen and those from other countries to fish there. But that has been what China claims it was doing until the Philippines arrested its fishermen there in April 2012 and even sent a warship there to assist such an operation by is Coast Guard.

A November 2014 report of the Center for Naval Analyses — a private think tank for the US military — in November 2014, that is, two years before the tribunal handed down it ruling, pointed out:

“From its perspective, China resolved the sovereignty dispute with the Philippines over Scarborough Shoal in 2012 when it established control over the shoal. Again, it is unlikely to relinquish it. The government of the Philippines is in no position to even begin to contemplate the use of force to recover Scarborough, and the United States is not going to become involved in any attempt to expel the Chinese.”

The tribunal’s ruling in effect totally closed down arbitration, or any suit brought in an international court, as venues for the Philippines to recover it by means other than force.

Sovereignty claims
The tribunal in its decision even mentioned China’s modern sovereignty claims over Bajo de Masinloc as well over the Spratlys:

“China claims sovereignty over Scarborough Shoal, which in China is known as ‘Huangyan Dao’ and treated as part of the Zhongsha Islands. In China’s 1958 Declaration of the Government of the People’s Republic of China on China’s Territorial Sea, China declared a twelve mile nautical sea from “all territories . . . including . . . the Zhongsha Islands.” China’s 1992 Law on the Territorial Sea and the Contiguous Zone also included the Zhongsha Islands in China’s territorial land which generated a 12-nautical- mile territorial sea.” (pages 199 to 200)

The tribunal added:
“On 27 November 2012, the Standing Committee of Hainan Provincial People’s Congress revised “The Hainan Provincial Regulation on the Control of Coastal Border Security” (“the Hainan Regulation 697”). As an administrative matter, China considers the Spratly and Paracel Islands, as well as Scarborough Shoal to form part of Hainan Province, since 2012 as part of the city of Sansha.” (page 271)

What many scholars found strange in the award was that while it purported to be aware of the Chinese claims of sovereignty, it facetiously dismissed these as irrelevant to the Philippine suit. “There is, indeed, much interesting evidence—from all sides—that could be considered by a tribunal empowered to address the question of sovereignty over the Spratly Islands and Scarborough Shoal. This Tribunal, however, is not empowered to address that question,” the tribunal merely said. (page 112)

Nevertheless, in the other rulings made by the tribunal, it actually — without saying so — ruled on the sovereignty issue even if it had no authority to do so, as many international law scholars have pointed out.

“The dispute between the Philippines and China is obviously over sovereignty over maritime features in the SCS, and only relatedly over maritime zones and the entitlements that the relevant features generate,” an Oxford University professor on public international law Antonios Tzanakopoulos pointed out. (In “Resolving Disputes over the South China Sea under the Compulsory Dispute Settlement System of the UN Convention on the Law of the Sea”)

Similarly, Chris Womersley, an international law expert who has been an adviser to the British government on territorial issues pointed out: “The tribunal failed to recognize that the fundamental dispute is about the sovereignty over the features in the South China Sea, and that the status of the features, such as whether they are low-tide elevations or ‘rocks,’ is a question which can only logically be answered once the sovereignty dispute has been resolved.” (In “The South China Sea: The Award of the Tribunal in the Case Brought by Philippines against China — A Critique”)

That it ruled against China’s sovereignty claims in its award and recognized Philippine EEZ entitlements is the huge flaw in the tribunal’s decision.

Part 2 on Friday:
“PH shot itself in the foot”




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