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Standing up to China (2)

By MARITES DAÑGUILAN VITUG .

Second of five parts

I TAKE a leaf from what a foreign commentator wrote soon after July 2016: “Having seized control of the narrative, Manila must hang onto it… The Philippines must… tell its story well and tell it often.”

In my new book, Rock Solid: How the Philippines won its maritime case against China, I tell the story of this victory that gave the country so much—a maritime area larger than the total land area of the Philippines, rich in resources—but has since been disregarded by the government.

First of all, the case is historic for four reasons:

  1. It is the first to interpret the UNCLOS definitions of rocks, islands and low-tide elevations.
  2. It is the first case to be filed by a South China Sea claimant state against China.
  3. It is the first time the Philippines sued a country.
  4. It is the first case to address the scope and application of the UNCLOS provision on protection and preservation of the environment. As the Philippine lawyers said, international environmental law was still an infant when UNCLOS was negotiated.

The book addresses why President Aquino decided to take China to court. A number of people had openly opposed the arbitration saying that it would do more harm than good to our relations with China.

A lawyer who was part of the Philippine delegation to UNCLOS even called for a withdrawal of the case as the country was awaiting the decision of the international tribunal. This was to give the incoming president latitude in dealing with China as Aquino was to step down in June 30, 2106 and Duterte was to take over.

This may be a little known fact but on the day Aquino was inaugurated president in 2010, China sent him a formal invitation for a state visit, the first country to do so. It showed how strongly China wished to woo the new leader and continue the golden years it had enjoyed with his predecessor, Gloria Macapagal-Arroyo.

Reflecting on his early years as president, Aquino said he wanted to have very good relations with China since it was increasingly becoming an economic superpower.

But two things shaped Aquino’s views on China:

1) In 2011, China, displaying its might, stopped Philippine survey ships in Reed Bank or Recto Bank. These ships had less than two weeks to go before they could finish their survey.

2) A year later, in 2012, China took control of Scarborough Shoal after a one-and-a-half-month standoff, a tense confrontation over fishing rights. A series of dangerous near-collisions took place between Philippine and Chinese ships. Much later, the tribunal ruled that China’s provocations caused these, violating regulations on good seamanship.

Aquino told me in an interview that he particularly remembered the quip of one Asean senior leader: “There are big countries and there are small countries. That’s the way of the world.”

He mulled over this and thought: It was precisely the law that would serve as the great equalizer.

The Case

With this as anchor—the law as the great equalizer—Aquino decided to take China to court, with the approval of the Cabinet, the leaders of Congress and two past presidents.

In January 2013, the Philippines began its legal battle.

More than a year later, the Philippines submitted its memorial, equivalent to a plea, which reached more than 3,000 pages. It was a product of massive research in history, international law, geology, hydrography, marine biodiversity, and cartography. This included ten volumes of annexes which contained maps, nautical charts, expert reports, witnesses’ affidavits, historical records, official communications.

Written exchanges between the Philippines and China, including notes verbale, starting from the mid-1990s, were made public. Intelligence reports of the Navy, the Western Command of the Armed Forces, and the Department of National Defense were also submitted to the tribunal.

This was a first in the country’s contemporary history: that diplomatic cables and intelligence documents were revealed to the public, a fascinating trove of our country’s diplomatic history.

It is good to be reminded that it was the Philippines which hosted the first bilateral consultations that focused on the South China Sea in August 1995.

The Philippine story also unfolds in the transcripts of the oral hearings in The Hague which capture the essential points of the case. As you will see, Paul Reichler and his team at Foley Hoag used the richly documented diplomatic history of the Philippines-China dispute in their arguments before the tribunal.

These transcripts, the Philippine memorial, the awards (or the tribunal’s decisions) on jurisdiction and merit are accessible reading to non-lawyers like me. They can be downloaded from the website of the Permanent Court of Arbitration. (to be continued)

 

(Excerpts from a speech delivered by multi-awarded journalist Marites Dañguilan Vitug at Davao launch of her latest book, “Rock Solid: How the Philippines Won its Maritime Case against China” at the Media Center of the Ateneo de Davao University this Aug. 3.)

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