International court of public opinion

PerryScope
By Perry Diaz

South-China-Sea-doesnt-belong-to-ChinaNow that the Permanent Court of Arbitration (PCA) has ruled strongly in favor of the Philippines’ maritime disputes against China in the South China Sea (SCS), people are wondering, “What’s going to happen next?”

Unless China accepts the arbitral tribunal’s ruling – in parts or in its entirety – nothing is going to happen in terms of enforcement. While the Philippines may have won a moral and legal victory, she cannot force China to dance “tango” with her, simply because China has refused from the get-go to participate in the arbitration case and made it crystal clear that she would not abide by the PCA’s ruling.

However, to avoid the appearance of losing face, China opened a little window for bilateral talks. But the question is: Is she going to impose the same old demand that the Philippines must first recognize China’s “indisputable sovereignty” over the South China Sea before talks could begin? And since the Philippines had refused to agree to it, bilateral negotiation was out of the question; hence, the Philippines went to the PCA to seek arbitration.

With the PCA’s legally binding ruling, the Philippines is left with few options, none of which is easy to achieve. But with an alternative of going to war against China, a “peaceful” means of settling their disputes would be in everybody’s best interest, including the international community, which is keeping a keen eye on how China is dealing with the arbitral tribunal ruling. With 80% of global trade – that’s $5 trillion annually – passing through the SCS, there is just too much at stake. Any change in the status quo could upset the balance of power in the Indo-Asia-Pacific region, which would directly or indirectly affect the world’s leading economies. And that includes the Group of Seven (G7), which represents the top seven world economic powers.

International rule of law

Group of Seven

Group of Seven

At the G7 summit hosted by Japan on May 25-26, all the G7 members – Canada, France, Germany, Great Britain, Italy, Japan, and the U.S. – displayed an impressive show of unity to “defend the international rule of law and jurisdictional status quo in both the South and East China Seas.” As reported in the news, the G7 leaders also “affirmed the freedom of navigation and overflight, international law, peaceful settlement of disputes and arbitration, and they condemned unilateral action and the use of force or coercion.”

“Rock the boat”

ASEAN-Nations-mapBut while the G7 is solidly in favor of abiding by the international law, the 10-member Association of South East Asian Nations (ASEAN), at their Foreign Ministers’ meeting in Vientiane, Laos, was divided over the PCA’s ruling. The members were deadlocked over the Philippines’ request to mention the PCA’s ruling in their joint statement.

The Philippines and Vietnam backed the PCA’s ruling, which denied China’s sweeping claims in the SCS, including the nullification of the controversial “nine-dash line,” which delineates about 90% of the SCS as belonging to China. But Cambodia opposed the wordings in reference to the PCA’s ruling; thus, preventing ASEAN from arriving at a consensus. To break the impasse, the Philippines’ Secretary of Foreign Affairs Perfecto Yasay Jr. withdrew the Philippines’ request and agreed to a watered-down joint communiqué that avoided any reference to the PCA’s ruling. Yasay said, “The Philippines did not want to gloat over the win, or rock the boat with ASEAN.”

But excuse me Mr. Yasay, “rocking the boat” is not “gloating over the win.” On the contrary, it would have brought to the fore the importance of ASEAN unity in geopolitical issues that affect them collectively as a regional power bloc as well as individually as nations. Had ASEAN failed to gather unanimity among its member-nations, so be it. But it would have triggered a process to bring the maritime disputes to the center stage of international debate.

Enforcing the ruling

Senior Associate Justice Antonio T. Carpio

Senior Associate Justice Antonio T. Carpio

In a commentary by Senior Associate Justice Antonio T. Carpio published in the Philippine Daily Inquirer last July 21, he asked: “How can the Philippines enforce its exclusive right to the resources in its EEZ?

“If China National Offshore Oil Co. (CNOOC) installs a gas platform on Recto Bank (Reed Bank), which is entirely within the Philippine EEZ, and extracts the gas there, the Philippines can sue CNOOC in Canada where CNOOC has assets.

“The Philippines can show the ruling to the court in Canada, which ratified the United Nations Convention on the Law of the Sea (UNCLOS), that the gas on Recto Bank belongs to the Philippines and CNOOC pilfered it.

“The Philippines can ask the Canadian court to seize CNOOC’s assets to compensate the Philippines for the pilfered gas.

“The Philippines can also ask the International Seabed Authority (ISA), a creation of UNCLOS, to suspend the exploration permits it issued to China.

“The ISA has issued 27 permits to explore the seabed outside any national jurisdiction, and four permits have gone to China, the highest number for any state.

“UNCLOS is a “package deal”—any United Nations member that ratifies UNCLOS must accept all its provisions.

“If China refuses to comply with the ruling of the Permanent Court of Arbitration, the Philippines can ask the ISA to suspend the exploration permits of China because China is accepting only beneficial provisions of UNCLOS and rejecting its burdensome provisions.

“The Philippines must be creative in finding legal means of enforcing the ruling, and not be timid in exploring the frontiers of international law.

“To paraphrase Sun Tzu, you must defeat the enemy in the courtroom if you cannot defeat the enemy on the battlefield.”

The primacy of UNCLOS

Judges of the Permanent Court of Arbitration

Judges of the Permanent Court of Arbitration

Indeed, the most potent weapon that the Philippines could employ to force China to comply with the PCA’s ruling is UNCLOS, which both China and the Philippines are signatories; thus, obligating them to adhere to its provisions. And should China refuse to abide by it, the Philippines could then avail of the legal means that Justice Carpio outlined in his commentary.

It is interesting to note that the U.S. has been pretty vocal and persistent in asserting freedom of navigation and overflight for her naval and air forces. Other countries might follow including Vietnam, Japan, Australia, and India, which begs the question: Is China prepared to go to war against her neighbors, five of which have mutual defense treaties with the U.S.?

While China would try to save face and cut her losses and keep as much territory that she could bargain for, she is vulnerable to global economic sanctions and condemnation. And if the negotiations fail, then there will only be one court left to settle their disputes; that is, the “international court of public opinion,” where judgment is final and there is no appeal. Can China afford to disregard global public opinion, just like what’s happened to another rogue state, North Korea? I doubt it.

(PerryDiaz@gmail.com)


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