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Significance of The Hague ruling

Ambassador Albert del Rosario (The Philippine Star) - March 2, 2021 - 12:00am

I am humbled to receive this Award conferred by De La Salle University, in coordination with the Jose W. Diokno Foundation and I am even more humbled to receive such an award along with former president Benigno S. Aquino III, retired Justice Antonio T. Carpio and former ombudswoman Conchita Carpio Morales.

As you know, under our system of government, the President is the chief architect of foreign policy and the secretary of foreign affairs is tasked to implement the foreign policy decisions of the President.

I wish to take this occasion to thank especially former president Aquino for making the principled and courageous decision to sue China before an international tribunal to defend the rights of our countrymen.

As secretary of foreign affairs, I was made responsible for bringing China before an international tribunal. While the challenges of enforcing the tribunal’s award remains formidable, by gaining the UNCLOS award in 2016, we as a country have taken a significant step towards upholding the rule of law and defending what is rightfully ours in the face of unlawful aggression by a foreign power.

There are those who think the rule of law in international relations does not apply to great powers. We reject that view. International law is the great equalizer among states.

It allows small countries to stand on an equal footing with more powerful states. Those who think “might makes right” have it backwards. It is exactly the opposite, in that right makes might.

That is why, in January 2013 when we initiated arbitration against China, we confidently put our fate in international institutions which embody the rule of law.

Almost four years after, on July 12, 2016, we were able to vindicate the rights of Filipinos over their waters through the award issued by a tribunal created under UNCLOS. This arbitral outcome is now an integral part of international law.

The UNCLOS award is a remarkable document. It will not only stand the test of time, it will be a model for ages. It is remarkable in many ways, most especially for its moral strength. It is a compelling rebuke to those who doubt that international justice does exist and will prevail.

I say this not just as a former public servant and a Filipino, but also as a global citizen. It is not just the fate of the Philippines that is at stake in the South China Sea dispute. The fate of the rule of law adhered to by almost all nations is at stake, with the insidious specter of “might makes right” hovering over our collective future.

We have always believed in the principles that established the United Nations. That great institution is an expression of the best in us.

It is unfortunate that it took one of the saddest episodes in human history – World War II – to create it. Yet those of us who lived through that episode also remember the hopes for a new chapter in our common history. We dared to envision a future of enduring peace, shared prosperity and a new era of collaboration.

Two centerpieces of that new order were: 1) the sovereign equality of all states, and 2) the commitment to settle disputes peacefully. These are the foundation of our international system today. We invoked these two centerpieces of the UN to win the South China Sea arbitration.

When we decided to go to arbitration, the Philippines was fulfilling one of its most solemn duties, which is to settle international disputes peacefully. Our disputes with China in the South China Sea have, for a very long time, complicated our relationship. Tensions have risen dramatically. Unable to resolve these disputes ourselves, we thus turned to arbitration to provide all parties a durable, rules-based solution.

We believe the UNCLOS award benefits everyone. For China, it defines and clarifies its maritime entitlements under the treaty which it ratified in 1986. For the Philippines, it clarifies what is ours, specifically our fishing rights, rights to resources and rights to enforce our laws within our EEZ.

For our ASEAN neighbors, the award provides persuasive guidance of their rights and entitlements under UNCLOS. And for the rest of the international community, the UNCLOS award upholds the rule of law and will help in attaining security, stability and freedom of navigation and overflight in the South China Sea.

We also believe that our experience in the arbitration is instructive for other states to consider the dispute settlement mechanism under UNCLOS as an option for resolving disputes in a peaceful manner.

I am not a lawyer. But in my mind, when UNCLOS says that the Philippines’ rights in its continental shelf exist and do not depend on occupation, that means that there is no room for China’s claim. And when the Convention speaks of an “exclusive” economic zone, I take “exclusive” to mean exclusive. That means it is ours. And what is ours is ours, not China’s.

With an assertiveness that is growing with every passing day, China is preventing us from carrying out even the most basic exploration and exploitation activities in areas where only the Philippines can possibly have rights.

Until now, China is failing to respect its obligations under international law, specifically UNCLOS. It continues to interfere with the Philippines’ sovereign duty to promote the social progress of our people and our efforts to achieve a better standard of life for all Filipinos.

China is not just interfering with the progress of the Filipino people; China’s unilateral actions and the atmosphere of intimidation they have created are also trampling upon the rights and interests of the peoples of Southeast Asia and beyond.

China’s massive island-building campaign shows its utter disregard for the rights of other states and for international law. China intentionally created one of the biggest environmental disasters in the world.

This is why former ombudswoman Conchita Carpio-Morales and myself, with our counsel, retired Justice Antonio Carpio, submitted a communication to the Office of the Prosecutor of the International Criminal Court to show that Chinese President Xi Jinping and other Chinese officials committed crimes against humanity by causing the near permanent destruction of the marine environment of the South China Sea which will result in a disastrous food crisis in the region.

Yet the stakes are still greater. The rule of law is itself at risk.

For no state, no matter how powerful, should be allowed to claim an entire sea as its own and to use force or the threat of force in asserting that claim. For no state should be permitted to write and rewrite the rules in order to justify its expansionist agenda. If that is allowed, UNCLOS itself will be deemed useless. Power will have prevailed over reason and the rule of law will have been rendered meaningless.

At this somewhat late stage in our lives, we will continue to fight for what the Filipino deserves, knowing that the rule of law should not be reduced to the quaint aspiration of a time now past, but rather will be accorded the primacy that the founders of United Nations envisioned, as well as the founders of our Constitution.

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This article is based on remarks delivered at the Ka Pepe Diokno Human Rights Award conferment by Ambassador Albert del Rosario, chair of the ADR Stratbase Institute.

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