Aileen S.P. Baviera

20161003.PCA.Arbitration

Photo: Permanent Court of Arbitration

On July 12, 2016, the arbitral tribunal organized under the UN Convention on the Law of the Sea (UNCLOS ) Annex VII , and registered at the Permanent Court of Arbitration in The Hague, ruled on the complaint brought by the Philippines that China’s actions in the South China Sea had encroached on its maritime rights. The tribunal ruled largely in favor of Manila.

In a decision that was proclaimed “final and binding,” it concluded that China’s nine-dashed line claim had no basis in law or historical fact, and that the features occupied by China and Taiwan were not legally “islands” and are therefore not entitled to large maritime zones of their own. This ruling significantly reduces the area under dispute to small features and narrow belts of water immediately surrounding those features.

zhao duterte

Photo from: http://goo.gl/PQt6nV

Dialogue between Philippines and China may hold the key to soothing tensions and promoting peace in a longstanding regional flashpoint. Emotions ran high after the Hague-based Permanent Court of Arbitration (PCA) rendered a historic decision ending a 3-year arbitration process marred by China’s non-participation and artificial island-building and US challenges to excessive Chinese claims through freedom of navigation operations. The Award was considered a milestone in reiterating that pre-existing rights or historical claims are already superseded by UNCLOS and that features that do not qualify as true islands are ineligible for extensive maritime entitlements, save for a maximum12 nautical mile territorial sea for rocks. With a favorable ruling, there is much pressure on the Philippine government to use this legal and moral high ground to put to rest the decades-old dispute, but political realities make this difficult. There is also an emerging view that, despite the enormous resources invested in the legal track, dialogue may still hold the key to resolving the disputes.

In this reply to Professor Graham Allison, the writer argues that it is in the interest of both small states and great powers to abide by international law.

Professor Graham Allison is a brilliant scholar. He is currently the director of the Belfer Centre for Science and International Affairs at the Kennedy School of Harvard University. He had served previously as the dean of the Kennedy School. On July 16, this newspaper published an article by him entitled "Heresy to say great powers don't bow to international courts?"

He concluded that: "It is hard to disagree with the realists' claims that the Law of the Sea tribunals, the International Court of Justice and the International Criminal Court are only for small powers. Great powers do not recognise the jurisdiction of these courts - except in particular cases where they believe it is in their interest to do so."

Prof Allison also quoted, with approval, Thucydides' summary of the Melian mantra - "The strong do as they will; the weak suffer as they must…"

Synopsis

China has chosen not to take part in the arbitral tribunal brought against it by the Philippines. Hence, now that the tribunal has issued its ruling, China should stay away from commenting on the case and instead offer concrete plans for functional cooperation in the South China Sea.

Commentary

AFTER THREE years, the international arbitration that the Philippines brought against China on issues relating to the South China Sea dispute between them came to a formal end on 12 July 2016. The findings of the arbitral tribunal did not come as a surprise.

The Chinese government has rejected the tribunal’s finding, having exercised its right allowed in public international law not to participate in the tribunal. Chinese and/or non-Chinese citizens can take issue with the wisdom or the lack of it behind that decision. Regardless, a page has been established in history. Meanwhile, it is upon us to make use of moments of history.