South China Sea Verdict: The Philippines Plays It Cool (And Restrained)
MANILA–An international court, formed under the aegis of the United Nations Convention on the Law of the Sea (UNCLOS), just issued an unequivocal rebuke of China’s excessive maritime claims across the South China Sea. Characteristically, China dismissed the unfavorable verdict as “a piece of scrap paper,” “null and void,” and a conspiracy of western powers. Refusing to recognize the jurisdiction of the Arbitral Tribunal (constituted under Art. 287, Annex VII), China has (falsely) argued that it is not bound by the outcome of the Philippine-initiated arbitration.
But according to Article 296 as well as Article 11 of Annex VII of the UNCLOS, the verdict is final and binding. Although China refused to formally participate in the proceedings, Article 9, Annex VII of UNCLOS clearly states that the non-participation of one party doesn’t bar the legal proceedings from moving forward. To be fair, in accordance to Article 5, Annex VII, China was repeatedly provided an opportunity to formally participate, but – perhaps sensing an unfavorable outcome — it instead opted to boycott the whole proceedings.
To absolve itself of any compliance with an unfavorable verdict, China cited exemption clauses under the UNCLOS (Art. 298, Section 2, Part XV), but it was ultimately up to the court to decide whether the Asian power was exempted from the case or not. China sought to procedurally undermine the Philippines’ case by raising jurisdiction issues. It correctly argued that the UNCLOS has no mandate to decide on issues that concern territorial sovereignty, but failed to recognize that the Philippines’ case was skillfully packaged as a question of maritime entitlements and sovereign rights.
More than three years after initiating its ‘lawfare’ against China, the Philippines triumphantly welcomed a landmark verdict, which favored almost all of the Southeast Asian country’s arguments. The newly-elected Rodrigo Duterte administration, however, refused to flaunt the verdict as to taunt China. Instead, in an extremely sober and calibrated fashion, it called for restraint and dialogue with China. Paradoxically, China’s major legal setback may actually pave the way for better relations with am empowered and pragmatic Philippines.
Ahead of the judgment day, China employed all kinds of tactics to frustrate the Philippines’ lawfare. It tried to intimidate the Arbitral Tribunal by announcing, earlier this year, its decision to set up its own international arbitration bodies as an alternative to existing global legal regimes. China also sought to denigrate the legal proceedings, lobbied international court officials to dismiss the case, and went so far as to threaten to withdraw from the UNCLOS altogether.
China also sought the support of up to 60 countries to oppose the Philippines’ arbitration case. But it seems it only managed to garner the support of eight mostly African, landlocked and corruption-stricken nations, which are dependent on Chinese largesse. Meanwhile, up to 40 countries — most democratic and among the world’s most developed — supported the Philippines’ position. The rest are fence-sitters.
In its position papers, China accused the Philippines of abusing international law and violating prior bilateral and multilateral agreement by initiating compulsory arbitration. In fairness, China isn’t the first great power to employ such strident legal position vis-à-vis weaker neighbors, even though any objective assessment will suggest that it is Beijing that has been doing so. In clear contravention of the 2002 Declaration on the Conduct of Parties in the South China Sea (DOC), which calls on claimants to “undertake to exercise self-restraint in the conduct of activities that would complicate or escalate disputes,” and “refrain from action of inhabiting on the presently uninhabited islands, reefs, shoals, cays, and other features and to handle their differences in a constructive manner.”