Philippine eyes legal action vs China on arbitral award

Daphne Galvez - The Philippine Star
Philippine eyes legal action vs China on arbitral award
More than 50 Chinese vessels swarm the vicinity of Iroquois Reef and Sabina Shoal in the West Philippine Sea, July 7.
AFP Wescom

MANILA, Philippines — The Office of the Solicitor General has created a “special team” to study possible legal action regarding China’s continued refusal to recognize the ruling of an international arbitration court in 2016.

Solicitor General Menardo Guevarra disclosed this yesterday, two days after the Philippines marked the seventh year since the Permanent Court of Arbitration (PCA) in The Hague ruled in favor of Manila over Beijing in the maritime dispute in the South China Sea.

“This study will be useful to the President and the Department of Foreign Affairs in determining our future course of action with respect to the West Philippine Sea,” Guevarra told The STAR in a text message.

Former solicitor general Francis Jardeleza had broached the idea of filing another arbitration case to further assert the country’s sovereign rights in the West Philippine Sea.

Jardeleza said the case could be filed before an ad hoc tribunal constituted under the United Nations Convention on the Law of the Sea or the International Tribunal for the Law of the Sea.

He said the case should be handled solely by the Office of the Solicitor General to do away with “the heavy cost of hiring foreign counsel.”

“Essentially, litigation options would be the better way for the country,” he earlier said.

Jardeleza said the Office of the Solicitor General can choose from a menu of possible claims, including one for damages or other provisional relief.

The international tribunal’s decision recognized the Philippines’ declaration for rights, without suing China for damages in the Philippines’ exclusive economic zone in the West Philippine Sea.

Jardeleza, however, acknowledged that President Marcos would have the final say if the Philippines decides on the issue, being the chief architect of the country’s foreign policy.

The retired Supreme Court associate justice urged Marcos to solicit recommendations from relevant government agencies to implement a clear and holistic policy on the West Philippine Sea.

As then solicitor general, Jardeleza was part of the legal team in the arbitration case at the PCA in The Hague. Guevarra was also part of the team.

Koko urges caution

At the Senate, Sen. Aquilino Pimentel III on July 13 cautioned the Philippines against filing another case against Beijing at The Hague for fear of overturning the country’s win in the arbitral court.

“We should file another case if based on new grounds. Let us not relitigate what we already won,” Pimentel said in an ANC interview.

He said filing another case may be used as an opportunity by China, which boycotted the court proceedings, to participate this time and strive for a reversal of the ruling.

“Our position is that the 2016 arbitral ruling is already final and executory. Let us be careful in calling for a filing of anything which can be misconstrued or misinterpreted intentionally as a relitigation of the issues,” the senator said.

The Philippines should instead work on fighting for its sovereign rights amid China’s aggressive actions and harassment of Filipino fisherfolk and vessels in the West Philippine Sea.

“The better course of action is to pound on the 2016 arbitral ruling in our favor. Let us be proud that the Philippines has played a role in the development and enrichment of international maritime law,” Pimentel said.

The senator also warned the present administration about allying itself too much with the United States amid the tense geopolitical situation over the South China Sea and the Taiwan Strait.

“I am worried this administration is identifying itself too much with the US. We are still in Asia. Ten million years from now, China would still be our neighbor. We have to find a way to balance everything,” he said.

For her part, Sen. Risa Hontiveros on July 14 slammed the Chinese embassy in Manila for continuing to reject Philippine victory in the arbitral ruling over the West Philippine Sea and claiming that the US is the “mastermind” behind the arbitration.

“By ignoring the growing consensus coalescing around the Philippine victory in the West Philippine Sea Arbitral ruling, the Chinese government further isolates itself from the international community,” Hontiveros said.

The senator also took exception to the embassy’s claim that the US masterminded the arbitration ruling and used it to rope in its allies to “gang up” on China each anniversary of the landmark decision.

“As to the alleged ‘mastermind’ of the arbitration case, I strongly urge the Chinese embassy to at least show some basic courtesy to the Philippines, their host country, before deciding to release inflammatory statements on a day the Filipino people are celebrating a great victory,” Hontiveros said.

She also described as hypocritical the Chinese embassy’s call for other nations to “respect” its “territorial sovereignty and maritime rights and interests,” and its remark that the Philippines’ allies are “troublemakers to peace and stability in the South China Sea.”

Mere ‘laway’

The Philippines did not win anything when the PCA issued its so-called Arbitral Award in 2016, according to former national security adviser Clarita Carlos.

Worse, she believes that the supposed international support that the country is getting seven years after the historic decision was issued, is nothing but “laway” – lip service.

In an interview with “The Chiefs” over One News on July 13, Carlos was asked if the Philippines really won anything at all when it brought China to court.

“Siguro, the quick and dirty answer would be none. The most prominent part of that so-called award, which did not award anything, is the declaration that the nine-dash-line of China does not have any basis in fact. And that no country can claim any part of the contested waters simply by historical claim,” she replied.

She noted that if the Arbitral Award cannot be supported with what she described as naked power, “then it’s laway lang, just a piece of paper.”

“I’m sorry to dash the hopes of people who are rallying and saying that we have a victory. That’s not true. They have to read the award and they have to read the circumstances surrounding (it),” she explained.

Carlos noted that first of all, the Philippines had to “pay a stupendous amount of money” for lawyers when the case was brought before the PCA.

“Second, China did not want to participate in that particular judicial process. And China repeatedly, you know 10,0000 times, would say that we are not participants there, we are not going to pay attention to its results… In other words, it does not form part of the environment of international politics right now,” she said.

Asked if she means that the Philippines should not have done it at all or just kept quiet, Carlos said no and emphasized that in international politics, silence means acquiescence.

“That’s the reason why we have filed hundreds of note verbale,” she said, clarifying that the Arbitral Award has its benefits and no matter how weak and diminished one’s stature is at the time, one has to act.

On so-called international support coming from the United States, Japan and other foreign nations, Carlos said such pronouncements are nothing but talk. “Realpolitik tells us that’s only saliva,” she said.

To deal with the country’s problems with China in the West Philippine Sea, Carlos said one solution she has proposed to President Marcos is moving toward multi-alignment which will focus on economy.

She said such a shift “will be based on multi-polarity. Not one superpower, not two superpowers, a multi-polar world.”

She also proposed shifting from what she refers to as high politics to low politics, which means moving from talking about territorial issues to fishing agreements that would benefit the people.

Fish, for example, hatches in Palawan and is harvested in and by China yet the Philippines does not get even one galunggong, she said. — Marc Jayson Cayabyab, Michael Punongbayan

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