PCA arbitral ruling: Seven years after

When the Philippines initiated arbitration proceedings before the Permanent Court of Arbitration at The Hague in January 2013 against China’s expansive claims and assertions about its supposed “historic rights” over the South China Sea on the basis of its so-called “nine-dash line,” many – including the United States based on the information we received – were initially doubtful about the initiative taken by the late Foreign Affairs Secretary Albert del Rosario.

During the Obama presidency, the United States was not too eager in supporting the PCA suit. Their policy then was, “The United States does not get involved in territorial disputes.” There were also those – including within the Philippines – who were skeptical about such a move because China, after all, was a giant in terms of economic and military might, while the Philippines “did not have much conventional power,” as one analyst described it. In fact, former Chinese Foreign Minister Yang Jiechi stated during an ASEAN foreign ministers meeting in 2010, “China is a big country and other countries are small countries, and that’s just a fact.”

With legal research coming from former Supreme Court Senior Associate Justice Antonio Carpio as outlined in his presentation titled “Historical Facts, Historical Lies and Historical Rights in the West Philippine Sea” with corresponding maps, international cases and decisions that sunk China’s supposed “historic” claims, Secretary Del Rosario went ahead with the filing of the case, oftentimes standing alone in his beliefs during international gatherings.

Saying that our nation “has long placed its faith in the rules and institutions that the international community has created to regulate relations among States” in his impassioned statement before the Permanent Court of Arbitration in July 2015, the late foreign affairs secretary highlighted the “equalizing power of international law.”

Believing that the dispute resolution provisions on the UN Convention on the Law of the Sea allow “the weak to challenge the powerful on an equal footing,” Secretary Del Rosario was proven correct in his conviction that “principles trump power; that law triumphs over force and that right prevails over might” when the PCA unanimously ruled that China’s claims on the South China Sea had “no legal basis.”

Some dubious individuals who tried, and are still trying, to thrash the landmark win of the Philippines are totally wrong – because today, many nations recognize the 2016 Permanent Court of Arbitration ruling as legally binding, among them the most powerful nations known as the G7 – the United States, Canada, Japan, the United Kingdom, France, Germany and Italy, as well as the European Union.

India, which simply said it has “noted the Award of the Arbitral Tribunal” when the ruling came out, has now revised its position – calling for adherence to the arbitral ruling. In a joint statement during the recent 5th India-Philippines Joint Commission on Bilateral Cooperation, the Philippines and India “underlined the need for peaceful settlement of disputes and for adherence to international law, especially the UNCLOS and the 2016 Arbitral Award on the South China Sea in this regard.”

Other claimant nations to the disputed territories in the South China Sea are also using the 2016 arbitral award as basis for their submissions that contest the excessive claims of China over the South China Sea, such as Malaysia that made a submission to the UN in December 2019 rejecting China’s historic rights and its nine-dash line claims; in May 2020, Indonesia submitted a note verbale to the UN challenging China’s wide-ranging claims in the South China Sea as having no international legal basis; in March 2020, Vietnam also submitted a note verbale objecting to China’s historic rights claims, saying Vietnam’s position is compatible with the key findings of the 2016 arbitral ruling.

Non-claimant nations such as Japan have also challenged China’s position in the South China Sea through a submission to the UN, citing the 2016 arbitration award, along with Australia, the UK, the US, France and Germany that rebuked China’s claims as being inconsistent with the UN Convention on the Law of the Sea, to which China is a signatory.

China’s reclamation activities and construction of artificial islands have also endangered marine biodiversity, causing irreparable harm to the coral reef ecosystem. As early as 2019, marine scientists from the University of the Philippines’ Marine Science Institute have warned that the Philippines loses about P33 billion a year due to China’s reclamation and illegal fishing activities. A group of scientists also said the country’s food security is threatened with fish and marine species losing their habitat, while over 600,000 Filipino fishermen could lose their livelihood due to harassment and bullying by Chinese vessels.

Filipinos are alarmed at Chinese Coast Guard vessels continuing to harass, bully and obstruct our Philippine Coast Guard patrol vessels escorting boats on a resupply mission for Philippine Navy troops at the Ayungin (Second Thomas) Shoal, conducting dangerous maneuvers and coming within 100 yards of the PCG vessels. Last Friday, the Armed Forces of the Philippines also reported the presence of 48 Chinese fishing vessels in Del Pilar (Iroquois) Reef and Escoda (Sabina) Shoal within our exclusive economic zone, describing it as “alarming” and a “potential threat” to Recto Bank.

This Chinese aggression simply tells us one important fact: We must continue to push for strengthening our defense capabilities and working with our allies and partners in standing up for freedom of navigation and the international rule of law.

In any event, we are confident a peaceful resolution of issues between claimant nations to the disputed territories will eventually take place. More importantly, the ASEAN community would like to see the United States and China resolve their differences peacefully.

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