By Satur C. Ocampo
At Ground Level | The Philippine Star

Invoking the UN Convention on the Law of the Sea and seeking resolution to our maritime dispute with China via the arbitral tribunal provided under the UNCLOS is probably the best tack to take, a belated realization by the Philippine government.

Better, certainly, than the following options:

1. The Aquino government’s obdurate stand to rely primarily on the US commitment of military support, under the 1951 RP-US Mutual Defense Treaty, against China’s increasing aggressive intrusions into the Philippines’ exclusive economic zone and continental shelf in the West Philippine/South China Sea.

That commitment has been proven to be unreliable, with President Obama himself averring that the MDT does not apply in the case of the maritime dispute with China. Nonetheless, the Aquino government used the dispute to justify its signing the Enhanced Defense Cooperation Agreement. The EDCA, now challenged before the Supreme Court as to its constitutionality, allows increased US troop presence and grants America the right, upon its request, to use any part of the country as military base.

In effect, on the premise of seeking US support to assert our national sovereignty, the P-Noy government has committed to worsen America’s long-running derogation of such sovereignty in exchange for dubious benefits to the Filipino people.

2. To dialogue or negotiate with China without first seeking recourse through the arbitral tribunal, even as China has repeatedly claimed “undisputable,” “nonnegotiable” historical sovereignty over practically the entire sea and the islands within it.

Our strongest argument against China’s spurious claim is the UNCLOS provision upholding a member-country’s exclusive right to exploit the resources of waters within a 370-kilometer (200-mile) radius from its outermost territorial baseline, designated (as earlier mentioned) as exclusive economic zone. The Panatag, Ayungin, Mabini and other shoals claimed by the Philippines all fall within our EEZ.

China has acceded to the UNCLOS, which was approved in 1982 but came into force only in 1996. Thus China is morally bound to adhere to its provisions. As of Jan. 10, 2014, the convention had been ratified by 166 UN member-countries. This large number of adherents enhances its international viability or moral force.

Last Tuesday the UN Permanent Court of Arbitration acted on the Philippines’ legal challenge to China’s sovereignty claim in a 4,000-page “memorial” filed last March 30. (The original request for arbitration, under Annex VII of the UNCLOS, was filed in January 2013.) The court ordered China to submit its reply or defense by December 15.

(The permanent arbitration court is based in The Hague. It was established by the Hague Peace Conference in 1899 to provide services for the arbitration and resolution of disputes among states, international nongovernment organizations, and private parties.)

As one would expect, China has spurned the order. It reiterated its refusal to participate in the arbitral proceedings, implying that it would not recognize the outcome.

However, while noting China’s rejection, the court said:

“The arbitral tribunal will determine the further course of the proceedings, including the need for, and scheduling of any other written submission and hearings, at an appropriate later stage, after seeking the views of the parties.”

With the UN tribunal giving due course to the challenge, the Philippines is now in a better position to entertain an out-of-court negotiation with China. It’s a diplomatic option — while pursuing the case at the UN and using the submitted “memorial” as leverage — should China reiterate its offer to seek resolution of the dispute through dialogue.

Thus far, the Philippine challenge to China’s claim before the arbitral tribunal has generated other positive developments.

For one, it has impelled President Obama to publicly press the US Senate to ratify the UNCLOS. As a superpower, the US has refused to ratify the UNCLOS (as well as the 1991 International Criminal Court statute) on the imperialistic presumption that it hampers or overrides American sovereignty.

In a commencement address at the US Military Academy last week, Obama said:

“We can’t try to resolve the problems in the South China Sea when we have refused to make sure that the Law of the Sea Convention is ratified by the United States — despite the fact that our top military leaders say that the treaty advances our national security.”

In what amounts to a rebuke to the US government, Obama added: “That’s not leadership; that’s retreat. That’s not strength; that’s weakness.” It remains to be seen how the US Senate would react.

Another positive development has been the Vietnamese government’s indication that it was considering taking a similar action before the UN arbitral tribunal. However, at the Asian Dialogue on Security held in Singapore last week, defense minister Gen. Phung Quang Thanh clarified that Vietnam would rather solve its current maritime dispute with China through dialogue. He said international arbitration would be the “last resort.”

Further, this week a communiqué was issued in Brussels by the Group of 7 (Canada, France, Germany, Italy, Japan, US, United Kingdom) and the European Union declaring support for the right of territorial and maritime claimants to seek peaceful resolution of disputes in accordance with international law, including “legal dispute settlement mechanisms.” Inversely, the G-7 opposes any unilateral attempt to assert any claim through intimidation or force.

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E-mail: satur.ocampo@gmail.com
June 5, 2014

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