Philippines wins trial of the century

Nothing but truth in here and it was unfair, lamented Aglaya Ivanovna, one of Dostoyevskys protagonists in The Idiot. This was essentially Chinas response to a major legal setback, when an arbitration body at The Hague ruled against the Asian giants expansive claims and assertive manoeuvres in the South China Sea.

The arbitration case was brought forward by the Philippines, which has been locked in a bitter territorial dispute with China in recent years.

Back in 2012, Chinese paramilitary forces wrested control of the Manila-claimed Scarborough Shoal, a disputed land feature that lies only 220 kilometres away from Philippine shores but almost 900 kilometres away from the nearest Chinese shoreline.

It was a tragic episode for Manila, which lacked the requisite military capabilities to reclaim what it viewed as an integral element of Philippine territory.

No tangible assistance

With key traditional allies like the US unwilling to commit any tangible assistance, former Philippine President Benigno Aquino decided to take China to international court.

At the beginning, few believed that the Southeast Asian country could convince an international court, formed under the aegis of the United Nations Convention on the Law of the Sea, to rule against China.

Led by world-class lawyers, however, the Philippines managed to pull off a major victory after three years of excruciating legal proceedings. Though the verdict is binding and final, enforcement is far from assured.

A defiant China, which boycotted the whole arbitration proceedings, has dismissed the final ruling null and void and a worthless piece of paper without any consequence.

In truth, however, China faces major strategic and diplomatic costs. If it fails to comply with the arbitration outcome, it risks being branded as an international outlaw, inviting further legal and/or military countermeasures by its neighbours as well as by external powers such as America.

Enraged China

From the very beginning, China sought to undermine the Philippines arbitration case by invoking jurisdictional rebuttals.

It argued that arbitration bodies under the UNCLOS have no mandate to adjudicate the South China Sea disputes.

It sought exemption from third-party arbitration by citing legal provisions (Art. 298, Section 2, Part XV) in the Convention. China even accused the Philippines of abusing international law and violating prior bilateral and multilateral agreements by initiating a compulsory arbitration proceeding.

On the diplomatic front, China sought the support of up to 40 countries to oppose the Philippines case, while threatening to withdraw from the global maritime convention altogether. Earlier this year, it also announced its decision to set up alternative international arbitration bodies.

It also embarked on a relentless campaign to delegitimise and denigrate the whole arbitration proceedings, tried to lobby some court officials to dismiss the case, and went so far as accusing the tribunal of having failed to be impartial, acting in a law-abusing, careless, and irresponsible manner. The Arbitral Tribunal, however, rejected almost all of Chinas arguments.

Legal victory

In its final ruling, the court dismissed Chinas doctrine of historic rights, undergirding its sweeping nine-dashed-line claims, as ultimately incompatible with modern international law, since there was no evidence that China had historically exercised exclusive control over the waters or their resources.

Thus, the tribunal nullified any Chinese claim to the high seas and bulk of the waters of the South China Sea. It also ruled that the Asian power violated the Philippines sovereign rights by depriving its Southeast Asian neighbour of the unimpeded opportunity to exploit fisheries and hydrocarbon resources within its 200-nautical-mile Exclusive Economic Zone.

It also criticised Chinas massive reclamation activities - 17 times larger than all other claimant states combined in the past 40 years - arguing that they are incompatible with the obligations of member states, because they inflicted irreparable harm to the maritime environment and destroyed evidence of natural condition of features in the disputed area.

Finally, it also ruled that the bulk of Chinese-occupied land features in the area are low-tide-elevations, which cant generate any territorial claim. Others are, at most, only rocks, that can only generate 12 nautical miles territorial sea.

Hard choices

The verdict is binding, but enforcement is a huge concern. The Philippines has the option of releasing a strong statement calling for China, an aspiring regional leader, to comply or be branded as an outlaw.

The Southeast Asian country can also call upon external powers such as America, Japan, and Australia to enforce the verdict by conducting multilateral Freedom of Navigation Operations in the disputed waters and close to Chinese-occupied land features.

The Philippines legal victory also provides an encouraging precedent for other claimant states such as Vietnam to file a similar arbitration case against China.

The newly elected President Rodrigo Duterte, however, has called for restraint and sobriety, refusing to flaunt the historic legal victory to taunt China.

Most likely, Manila will not release a strongly worded criticism of its giant neighbour based on the verdict as a gesture of goodwill.

For the Duterte administration, it is important to manage a soft landing by restarting high-level negotiations with China in order to peacefully manage maritime disputes in the South China Sea.

The new governments priority is to avoid escalation, re-open communication channels with Beijing, explore joint-development agreements in disputed areas, and bring back Chinese investments into the Philippines. Ultimately, it may use the favourable verdict to bargain for a good deal in disputed waters. But this will a huge gamble.

Source: The Frontier Post