We have witnessed in the past decade the worrisome evolution of international conflicts accompanied by deepening acrimonious divisions, exchanges of harsh rhetoric, provocative maneuvers, and the miseducation of people about such conflicts’ true nature, origin, and potential adverse consequences.
On July 12, 2016 the world was afforded a momentous opportunity to take a new path toward the peaceful and principled settlement of international disputes. An Arbitral Tribunal convened pursuant to the United Nations Convention on the Law of the Sea (UNCLOS) rendered an Award in ‘The South China Sea Arbitration (The Republic of the Philippines versus The People’s Republic of China). The award reiterates the primacy of international law particularly UNCLOS in governing the maritime entitlements and other territorial rights and obligations of littoral States.
Without delving into the merits of the case vis-à-vis the Philippines and China, the decision does lay down important principles in international maritime dispute resolution and does provide states with a fair, transparent, and independent means of settlement. In the interest of fairness and cognizant of its role defined by UNCLOS, the Tribunal took pains in determining the principal question of its jurisdiction over the case by requiring extensive submissions from the Philippines and by thoroughly questioning witnesses and experts. After doing so, it promulgated an award which clearly ruled on the Philippines’ “sovereign rights in its exclusive economic zone” while carefully reiterating that it did not “rule on any question of sovereignty over land territory and does not delimit any boundary between the parties.” We cannot ignore, however, the finding by the Tribunal that China’s recent large-scale land scale reclamation and construction of artificial islands in the Spratlys together with other harmful fishing practices violated its obligations to preserve and protect the marine environment, which is a duty imposed by U NCLOS. Also the repeated approach at high speed by Chinese law enforcement vessels and their attempt to cross ahead of Philippine vessels created a serious risk of collision and danger to Philippine ships and personnel, and thereby violated the UNCLOS and the Convention on International Regulations for Preventing Collisions at Sea.Enjoying this article? Click here to subscribe for full access. Just $5 a month.
China, although a signatory to UNCLOS, stated repeatedly that “it will neither accept nor participate in the arbitration unilaterally initiated by the Philippines.” It has characterized the filing of the arbitration case by the Philippines as “baseless” and “an act of bad faith” and has dismissed the Court as a “puppet” of external forces, claiming that not one of the judges was Asian and therefore could not possibly understand the issue. China insists that the issue has to be resolved solely through bilateral talks between the claimant parties. More recently Chinese Vice Foreign Minister Liu Zhenmin stated that China viewed The Hague ruling as “merely a pile of invalid papers which will never be observed.” “I kindly advise you to throw the papers concerning the arbitration into the rubbish bin, put them aside on book shelves, or put them in the archives. The disputes will eventually have to return to the table for negotiations and China hopes the Philippines to return to the track of bilateral negotiations,” Liu added. Taiwan also chimed in, its President Tsai Ing-wen stating that the Award “gravely harmed” Taiwan’s rights in the South China Sea.
We think that it is precisely the fairness and impartiality of the process chosen by the Philippines to vent its claims that China objects to — a process whereby the principal advantage of a state is not its economic or military strength but the legality of its claims and the sole basis of which is an international statute of long standing to which both parties were signatories. We believe that China, contrary to its stance, should embrace the process and work with it in articulating its side, in order for it to fulfill its obligations as a major power. This will have twin benefits — it will further the institutionalization of UNCLOS as the law of the sea on hand, and it will prove China’s commitment to the rule of law to the rest of the world, which badly needs such commitments by major powers. Thus it is important for China to realize that its hardline position, with the accompanying shrill rhetoric, does the world no service; on the contrary it adds significantly to the list of brewing tempests worldwide.
Fortunately, some voices of hope are heard from within China. The New York Times recently reported that Professor Shen Dingli, an internationally respected Fudan University academic, wrote that China needed to “revise its stance” and “employ a more effective approach” that maintained China’s “long-held smiling image.” Indeed, Beijing has been an advocate of soft power in order to boost its image to the extent of issuing official etiquette guides to its citizens who travel abroad as tourists. China must realize that its “smiling image” is easily betrayed by what people think lies behind it. Its attitude toward rules-based proceedings to settle international disputes is a litmus test of its credibility and does serve as a critical factor in the judgment the free world makes on its bona fides.
Arbitration is only one the venues that states may use in settling their disputes; there are many other venues established by custom and treaty. Participation by China in dispute prevention is one of its fundamental responsibilities given its major power status. It must take an active role in the United Nations and the different Committees thereof, the Commission on the Limits of the Continental Shelf, and other multilateral international agencies. In this way China can, together with other states, have great sway in shaping international norms. Through greater interaction with the rest of the world in long-established international organizations, China can then work toward reshaping the international normative environment which it now seems to claim has a bias against it. By working collaboratively within established international systems, its credibility as a major power will be more accurately appreciated.
While we recognize the importance of bilateral negotiations in international relations we think that such should not be the sole method of resolving states’ disputes. Bilateral negotiations are rarely effective absent a situation of relative economic and military parity between the parties. Such may be likened to a poker game where the richer player keeps on raising the stakes until the opponent folds. It is precisely in bilateral negotiations where standards such as rule of law, fairness, and equality can be jeopardized by might, size, and wealth. Institution building also suffers should such negotiations not be conducted in an open and transparent matter. Lastly, and we feel most importantly, solutions reached through closed bilateral negotiations are oftentimes ad hoc concessions, which may not crystallize into institutions and norms that will be acceptable to the generations. They are the principal beneficiaries; therefore any proposed solution to an international dispute must have their best welfare as a principal standard. One could therefore argue that should a state fail in its duty to justly settle its international disputes it violates a trust which it holds as a steward of the rights and interests of future generations.
The rest of the world is indispensably embroiled in the Philippine-Chinese dispute, not only because of the issues of freedom of navigation, mineral resources, and other substantive issues but also because of the process taken and its eventual outcome. As such it is in the highest interest of states to convince China to work within the process and to find therein an acceptable means of redress. Only through sincere cooperation and friendly encouragement can this ever be achieved. Yet should states stand idly by and let this momentous occasion lapse, throwing the award in into the proverbial “dustbin,” the world will have lost a valuable opportunity to strengthen the role of institutions and the rule of law by letting the whims of leaders and the caprice of self-righteousness hold sway. Let us hope the world chooses the path of principled peace and stability.
Gilberto C. Teodoro, Jr., was the Philippines’ Secretary of National Defense from 2007-2009. Prior to that, he served as a three-term Member of Congress. He is now an independent consultant.