PERHAPS it was a classic instance of following an aphorism in Sun Tzu’s Art of War: “The whole secret lies in confusing the enemy, so that he cannot fathom our real intent.”
But on the face of it, President Rodrigo Duterte’s statements before the United Nations General Assembly (UNGA) on September 22 regarding the South China Sea arbitration award was so terribly wrong.
“The award is now part of international law, beyond compromise and beyond the reach of passing governments to dilute, diminish or abandon,” Duterte pontificated.
But this is very wrong. An arbitration is an arbitration of two parties’ agreement to let a third party settle its dispute. An ad hoc panel of five judges — all European except a Ghanaian, who is, however, a permanent resident of Europe — handled the arbitration that wasn’t an arbitration, as China refused to join it.
The panel itself called its rulings an “award” and not a decision. How can an “award,” which the panel itself emphasized can be binding only on the two parties, become “part of international law”?
Even arbitration awards within one legal jurisdiction, i.e., one nation, cannot be part of that nation’s law — which is determined by laws passed by Congress, and their interpretation by appellate courts and most especially the Supreme Court. And Duterte says this arbitration award is part of international law, which therefore other sovereign nations have to follow?
China refused to participate in the arbitration, pointing out that its accession to UN Convention on the Law of the Sea (Unclos) specifically was on the condition that no such compulsory proceeding can be undertaken with regard to disputes involving questions on its sovereignty and its overlapping exclusive economic zones (EEZs).
After the initial hurrahs over the award, perfectly understandable because the US and its Western dummies dominate global media, more and more international-law barristers and academic experts have criticized many of the award’s provisions in the past three years.
Oxford professor Stefan Talmon, considered one of the best experts on Unclos, pointed out in a May 2017 article on the South China Sea arbitration in the Journal of International Dispute Settlement:
“An arbitral award, as any decision by an international court or tribunal, does not cast international law in stone. Unlike most domestic legal systems, international law does not know of a hierarchically organized judiciary with a single highest court at the apex. On the contrary, even the decisions of the International Court of Justice have no binding force except between the parties and in respect of the particular case at hand.”
Talmon listed so many instances when legal rulings in decisions or awards by international tribunals were routinely reversed or ignored by others similar bodies.
What’s very important in Talmon’s article is his explanation that there are four ways by which an arbitral award — or even decisions by international courts — such as that on the South China Sea arbitration can be reversed.
The most important, I think, among Talmon’s four ways: “Judicial and arbitral pronouncements can be reversed through contrary state practice.”
In the case of the South China Sea arbitration award, China’s total rejection of it, and Duterte’s actual policy and practice of setting it aside — despite his recent declaration that it is part of international law — have in effect legally reversed the arbitration award.
Indeed, more than four years since the arbitral panel handed down its award, Duterte’s refusal to act on any provision of the award has made it what is called in legal systems a “dead letter,” a law or parts of a law that is ignored or is not enforced for various reasons.
Duterte may just be diabolically clever, and pulling the leg of China-bashers and the Yellows. His UNGA statement undermines one of the noisiest issues against him — that he is a China-lover — but he is still not enforcing the award’s provisions. After all, beyond the propaganda rhetoric, the award’s provisions do not really advance our sovereign claims, with some even directly going against our national interest.
Among these are the following.
First, President Benigno Aquino 3rd and his Foreign secretary had claimed that the suit was in order for the country to recover for us Scarborough Shoal, which they were fooled into losing by the US.
The award didn’t: it was even the first declaration by an international panel that China and the Philippines each were claiming sovereignty over it, which the panel nor any international body is not authorized to rule on.
Second, yes, the award declared Mischief Reef as well as the purportedly hydrocarbon-rich Reed Bank as within our EEZ. But China claims these areas as part of the sovereign territory it calls its Nansha archipelago, which by definition is a more powerful claim than sovereign rights in an EEZ. The tribunal was silent on which claim is superior — of course, since neither it nor any other body can rule on such sovereignty issues.
Third, yes, the award declared that the nine-dash line encompassing most of the South China Sea shown in Chinese maps as without basis in international law. But China’s claim over the Spratlys (nor on the Paracels) is not based on this nine-dash line, but on several other developments in the modern era as well as its declarations of sovereignty through several of its laws.
Proof of this is that China defined the boundaries of its Paracel islands by drawing its baselines in 1996, without any reference to the nine-dash line. Woe to us if China decides to draw its baselines around the Spratlys.
Worse, the award could have given China an idea that would be very bad for us.
The Yellow lawyers had stupidly asked the tribunal to rule as illegal Chinese ships’ attempts in May 2013 to block Philippine vessels from providing supplies to our 12-man Marine detachment at the Second Thomas (Ayungin) Shoal living in the BRP Sierra Madre wreck. The tribunal ruled that the incident was a “quintessentially military situation,” and therefore it had no jurisdiction to consider the complaint.
This kind of view was confirmed when the tribunal maintained that it has jurisdiction in determining if the construction on Mischief Reef violated Unclos since China had described these as civilian in nature.
Roncevert Ganan Almond, a partner of a Washington-based think-tank studying the arbitration award, pointed out how this conclusion of the panel favors China: “If only to avoid future compulsory arbitration, China may simply drop the thin veneer of civil use and more explicitly militarize its positions within the South China Sea.”
The Yellows and ignorant writers yelling for Duterte to implement the award don’t really know what they are talking about.
Do they want Duterte to declare that our Pag-asa and seven other islands in the Kalayaan Island Group are no longer islands entitled to a 200-nautical-mile EEZ, but are merely “rocks” with a small 12-nautical-mile territorial sea and “low-tide elevations”?
Believe it or not, this was the tribunal’s decision, that not only the Chinese-occupied reefs but all the heretofore so-called islands in the Spratlys are not entitled to EEZs. The idiots forgot that our islands are also in the Spratlys: How can the tribunal rule one thing on the Chinese-occupied features, and another on those we occupy?
Do they want Duterte to declare, complying with the award’s provisions, that the Kalayaan Island Group — because of Marcos’ Presidential Decree 1596 in 1978, the only addition to our territory since the 1898 Treaty of Paris defined it — is dissolved, and all we have in that area are only a smattering of separated islets?
After all, how would Duterte “enforce” the tribunal’s decisions, almost all of which simply declare that China had breached this and that Unclos provision, but do not specifically say what China and the Philippines should do about this?
An example of this rather Catch-22 situation is the tribunal’s conclusion that China built an artificial island in Mischief Reef “without the authorization of the Philippines.”
But what can Duterte do to enforce this decision? Issue a note verbale asking China to request its permission? But China will simply explain that even if Mischief Reef is within our EEZ, it is part of its sovereign territory Nansha Island, and therefore it doesn’t need any permission from the Philippines. Why, the tribunal didn’t even order China to dismantle its artificial islands.
If one just carefully reads the award, it did not order China to do anything even if it ruled that China was in breach of this or that Unclos provision. A weak analogy, but the tribunal is in effect declaring that somebody is illegally occupying a piece of land, but stops short of ordering it out of the land. A Dead Letter — exactly.
The arbitration suit was the past Yellow regime’s colossal folly, prodded on by the US as part of the Obama-era “Pivot to Asia” move. Indeed US Secretary of State Michael Pompeo recently demonstrated in his recent anti-China tirade that it is solely the arbitration award the US could harp on — that is, China’s refusal to recognize it — as “proof” of the Asian superpower’s rejection of international law. The award also gives the US Navy the legal clout to patrol the South China in any way it wants.
The suit was a decision of a small cabal of the Yellow regime to file, at that time also intended as a smokescreen for its colossal boo-boo of losing Scarborough Shoal. Only a handful of legislators were invited to a meeting explaining it, which even gave them little background nor time to study it.
The Duterte administration should organize an expert group, without Yellow affiliations, to really investigate what the suit was all about. Perhaps even ask the Senate to do such a probe. After all it does concern our foreign relations with China, the emerging superpower not only in our neighborhood but in the entire planet.
There is urgency to do so as the Yellows and the US, because of their lies about the arbitration suit, have whipped up such anti-China sentiment that makes it virtually impossible for government to undertake a very urgent task.
The Malampaya wells which supply one-third of our energy requirements will run dry in 2024. Other than importation, the only way to replace Malampaya is to extract the natural gas from the Reed Bank which we can only do through a collaborative venture with China and Vietnam. The anti-China frenzy whipped up by the Yellows will make it difficult to do so.