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The moment of truth: Philippines vs. China at The Hague

By Richard Javad Heydarian, special for CNN Philippines
Thu, July 9, 2015



The week covering July 7 to 13 will be pivotal to the Philippines’ legal battle to assert its claims over the portion of the South China Sea, that it calls the West Philippine Sea.

[Editor's note: Richard Javad Heydarian is an assistant professor in political science at De La Salle University, and a regular contributor to major international publications and think tanks on Asian geopolitical and economic affairs. He is the author of “Asia’s New Battlefield: US, China, and the Struggle for the Western Pacific." The opinions expressed in this commentary are solely those of the author.

Metro Manila (CNN Philippines) — The Philippines’ quest for peacefully resolving territorial disputes in the South China Sea has entered a critical stage. After more than two years of hard work and extensive preparations, culminating in the thousand-page-long memorial, Manila has the chance to convince the arbitral tribunal at The Hague that its case deserves to be heard.

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What is at stake is not only the merits of the Philippines’ arguments, and the questionable character of China’s sweeping claims, but also the very credibility and viability of international law as the primary arbiter for resolving seemingly intractable territorial spats. This is precisely why the whole international community is anxiously following the ongoing proceedings at The Hague.

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Beijing knows it would be very difficult to justify its notorious nine-dashed-line doctrine, so it has instead chosen to sabotage the Philippines’ arbitration efforts by raising (see its Dec. 7, 2014 position paper, which can be read as an informal counter-memorial) technicality-procedural questions. China has deployed three related arguments that aim to put into question whether the arbitral tribunal should exercise jurisdiction at all.

China cites that the UNCLOS doesn’t have the mandate to address sovereignty-related (title to claim) questions, while, invoking Art. 298 back in 2006, China has opted out of compulsory arbitration on issues that concern its territorial claims, among others. China also claims that it is premature to resort to compulsory arbitration, since alternative mechanisms haven’t been fully exhausted. The Philippines’ savvy legal team, however, has tried to address the jurisdiction issue by eschewing the sovereignty question, instead focusing on two major issues.

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In preparation for my book, “Asia’s New Battlefield”, I had the chance to consult with leading legal experts from across the United States, Asia, and Europe in the past year. My key impression is that the legal community is quite divided on whether the Philippines can overcome the jurisdictional hurdle, since it will have to argue that its case transcends any sovereignty-related question.

But practically everyone agrees that China has to first clarify sweeping territorial claims, which are neither consistent nor precise. Up to this day, it is not clear whether China is claiming the entire South China Sea or only the features and fisheries and hydrocarbon resources in the area. And if China doesn’t even clarify the precise coordinates of its claims, it would be almost impossible to have any viable joint development scheme among claimant countries.

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In practical terms, the big concern is that while the legal cycle slowly grinds, China is actually changing the facts on the ground on a daily basis. This is why it is extremely important that the Philippines remains vigilant, and primarily focuses on tangibly guarding its interests on the frontline by fortifying its position on features it already controls, negotiate necessary measures (i.e., hotlines) to prevent unwanted clashes and escalation in the high seas, and employ all instruments in its toolkit to protect its territorial integrity.

An urgent concern, in particular, is to prevent China from imposing an Air Defense Identification Zone (ADIZ) in the Spratly chain of islands, which may give Beijing the ability to choke off the supply-lines of other claimant states and dominate arguably the world’s most important maritime highways. The truth is that, we can’t only rely on UNCLOS to address this critical situation, and we will need the help of our allies and partners across the world as well as the full support of the Filipino nation.

http://cnnphilippines.com/

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