Standing up to China (4)

By MARITES DAÑGUILAN VITUG .

Fourth of five parts

FIVE judges who hailed from different parts of the world unanimously arrived at the decision, called upon to compose the arbitral tribunal in The Hague. They were all known in the field of international law, specializing in the United Nations Convention on the Law of the Seas or UNCLOS—a rarefied practice in a tight community, a number of whom are legal academics. They were credible and eminent in their fields, champions of rule of law in the vast seas.

In normal situations, where both parties agree to participate in the case, each country chooses one judge and the remaining three are agreed upon by both states. But from the beginning, China refused to have anything to do with the arbitration, citing the tribunal’s lack of jurisdiction to hear the case and the Philippines’ violation of a supposedly legally binding agreement to exhaust consultations and settle disputes bilaterally.

The Philippines thus chose one judge, Rudiger Wolfrum from Germany, a longstanding member of the International Tribunal for the Law of the Sea (ITLOS), a UN-created judicial body that settles disputes arising out of the interpretation of UNCLOS, and a law professor. Since China opted out, UNCLOS rules assign the ITLOS president to pick the rest of the judges.

In 2013, when the Philippines initiated the case, it was Shunji Yanai, a Japanese, who was president of ITLOS. His choice to represent China was Stanislaw Pawlak of Poland, an ITLOS member. He then picked the rest of the judges: Alfred Soons from the Netherlands, a law professor with extensive experience in international litigation; ITLOS member Jean-Pierre Cot of France, and Chris Pinto of Sri Lanka, a legal academic, who was appointed president of the tribunal.

Pinto eventually asked to leave the tribunal because his wife was Filipino, which may have led to a potential conflict-of-interest situation.

Thomas Mensah from Ghana, who was the first president of ITLOS, took over and chaired the tribunal.

Combined, the experiences of the judges in adjudicating law-of-the-sea disputes spanned many decades. This is apart from having plumbed the depths of UNCLOS in their tomes of publications and academic lectures.

It took them more than three years to resolve the issues. Within this period, they listened to two sets of oral hearings in The Hague, one on whether the tribunal had jurisdiction over the case, and the other on its merits.

IN this stunning victory, the Philippines won on both jurisdiction and merits. The tribunal accepted the case because, at its core, the Philippines sought an interpretation of the definitions of islands and rocks by the UNCLOS—and the extent of surrounding waters these were entitled to.

After all, that was the reason the seminal UNCLOS provided ways for countries to come together, present their cases to clear up misunderstandings and resolve conflicts over what certain provisions really meant. One of these venues was arbitration.

The tribunal agreed with most of the Philippines’ arguments (13 out of 15), which essentially covered five key issues. The five judges ruled this way:

• On historic rights and the nine-dash line: China’s claim of historic rights to resources in the waters of the South China Sea is illegal and not compatible with the exclusive economic zones (EEZ) provided by UNCLOS. There is no evidence that China had historically exercised exclusive control over the waters or their resources. Essentially, the tribunal junked China’s sweeping nine-dash line claim which covered 80% of the Philippines’ EEZ.
• On entitlements to maritime areas and status of features: None of the Spratly islands is capable of generating extended maritime zones and none of the features claimed by China is capable of generating an EEZ.

In other words, none of the Philippines’ entitlements are overlapped by any of China’s, giving the Philippines the exclusive enjoyment of the resources in these areas.

• On lawfulness of Chinese actions: China had violated the Philippines’ sovereign rights in its EEZ by interfering with Philippine fishing and petroleum exploration, constructing artificial islands and failing to prevent Chinese fishermen from fishing in the zone.

Fishermen from the Philippines, like those from China, had traditional fishing rights at Scarborough Shoal and China had interfered with these rights in restricting access. Chinese law enforcement vessels had unlawfully created a serious risk of collision when they physically obstructed vessels.

• On harm to the marine environment: China had caused severe harm to the coral reef environment and violated its obligation to preserve and protect fragile ecosystems and the habitat of depleted, threatened or endangered species by building artificial islands.

Chinese authorities were aware that Chinese fishermen had harvested endangered sea turtles, coral, and giant clams on a substantial scale in the South China Sea and had not fulfilled their obligations to stop such activities.

• On aggravation of dispute: China’s recent large-scale land reclamation, dredging and construction of artificial islands were incompatible with the obligations of a state during dispute resolution proceedings.

It permanently destroyed evidence of the natural condition of features in the South China Sea and, by doing so, it extended the dispute.

Overall, the ruling removed cobwebs of doubt on the nature of the features in the South China Sea and what belong to the EEZ of the Philippines.

It has shrunk the disputed area to a much more miniscule size, comprising “not more than 1.5 percent of the 3.5 million square kilometers of maritime space in the South China Sea,” Carpio said in his lectures.

The Philippines reaped huge rewards. A small country with feeble military muscle won in an international court, notching gains for a case it built based on history and  the law of the sea forged by 167 states for years.

China was one of the signatories to UNCLOS but it chose to stay outside it and continued to live with the fiction that it had “indisputable sovereignty” over the South China Sea, rejecting the judgment and a tenet countries should abide by, the rule of law. This made the Philippine victory both sweet and bitter..

In reality, it was China that forced the Philippine government to seek a third-party arbitration. About two decades of diplomatic dialogues, consultations, back-and-forth cables led to a dead end. Another path had to be taken, another door had to be opened. (to be concluded)

(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.)