On the eve of a verdict

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Legal circles are abuzz with talk of an impending verdict in the dispute between the Philippines and the People’s Republic of China. The arbitral tribunal that has jurisdiction under the compulsory dispute-settlement provisions of the UN Convention on the Law of the Sea (UNCLOS) is said to be ready to promulgate judgment sometime in the first week of July. Not too long ago, an article appeared in the South China Morning Post on how the PROC might save face after an adverse judgment. It is widely (not wildly, I hope) surmised that the tribunal will rule in favor of the Philippines.

What China would do should judgment be adverse to it is a no-brainer. At the outset, it has rejected the tribunal’s assertion of jurisdiction. It abstained from participation in all proceedings. But it had earlier issued statements and declarations that provided the adjudicating panel with enough material with which to make out the PROC’s legal claim and its warrants. Predictably, the Chinese will shrug off the decision—or at least put on the appearance of shrugging it off—by pointing to its non-participation in the proceedings. Legally, of course, that is an untenable position. A party to a dispute cannot avoid the binding force of adjudication by the expedient of refusing to participate. The proceedings, it must be insisted, were not voluntary. Arbitration is the “default-setting” in respect to dispute resolution when the parties —antecedently bound by the provisions of the Convention—have not agreed on a common mode of dispute settlement.

And so it is that many, Filipinos among them, doubt that the judgment would do very much. How does one enforce a judgment against a behemoth that has muscle enough to keep even the Americans at bay? But that is not really the point. The first effect of any judgment is a declaration of where rights lie, and in the case of the present dispute, that might just be what is most important. China’s aggression in the area—its forcible occupation of islands and features, its eviction of all others from the disputed waters, its saber-rattling—would be arrant lawlessness, if not criminality, except for the color of legitimacy lent by its claims, supported by documents it has thus far proffered, including maps supposedly going back to the Sung Dynasty. After a tribunal ruling that passes upon the claims of either party, then it shall become clear whose actions are pursuant to sovereignty and whose are nothing more than the swaggering of a bully!

But it will be well to remember what the matter in issue is, what the law calls the lis mota. The judgment will not resolve claims to sovereignty. That is beyond the jurisdiction of the proceedings and beyond the purview of UNCLOS. Claims to territorial sovereignty are properly raised in different proceedings, if not before the International Court of Justice. What we have asked the arbitral tribunal to rule on are our claims to sovereign rights and the actions of the People’s Republic of China in that part of ocean vis-a-vis the rights guaranteed us by the Convention.

http://thestandard.com.ph/opinion/columns/pens-es-by-fr-ranhilio-aquino/208952/on-the-eve-of-a-verdict.html

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