Understanding the arbitral award



The arbitral award or judgment, dated July 12, 2016, was issued unanimously by the five members of the Arbitral Tribunal Constituted Under Annex VII of the 1982 United Nations Convention on the Law of the Sea (that is how the tribunal called itself). Alleging the tribunal’s lack of jurisdiction, China refused to participate in the proceedings and does not recognize the award. To help readers understand the lengthy 501-page award, I will try to summarize it into three parts.

First, it rejected China’s “nine-dash line” and its claim of “indisputable sovereignty” over almost the entire South China Sea (SCS) for contravening the United Nations Convention on the Law of the Sea (Unclos). Consequently, the SCS is open to freedom of navigation by all countries.

Second, it upheld our maritime claims over the rocks, islets and other features in the Spratlys and declared unlawful the Chinese incursions into the UN-recognized baseline entitlements of our “archipelagic state,” namely, our 12-nautical-mile (NM) territorial sea, 24-NM contiguous zone, 200-NM exclusive economic zone and 350-NM extended continental shelf. This entire sea area along the west side of our country from Aparri to Sulu is collectively referred to as the West Philippine Sea (WPS).

Third, it held that none of the disputed maritime features is an “island” and, therefore, even if China occupies and has built structures on these features, it has no maritime rights over the WPS. It also ruled that Scarborough Shoal, located 124 NM west of Zambales, is a high-tide elevation with a protruding rock that generates only a 12-NM territorial sea. Though declared a traditional fishing area for Filipino, Chinese and Vietnamese fisherfolk, it was seized and is now occupied by China.

Note, however, that the Philippines did not ask for, and the tribunal did not award, any rights over the land areas, given that the arbitration was about maritime rights only, and did not include land occupations, reclamations and constructions.

Although they were not parties to the arbitration won by the Philippines, the great powers of the world now freely enjoy and enforce the first part of the award. American, Australian, British and Japanese warships, submarines and warplanes openly roam the SCS, ignoring Chinese warnings that they are violating China’s air space and maritime territory.

But they are not enforcing the second and third parts, which are left to our care. Neither are these two parts enforced by sheriffs and policemen. While we have defense pacts with the United States and other countries, there is no certainty that these powers will enforce the award unless, like us, they too are benefited.

True indeed is the teaching of Lord Palmerston (Henry John Temple) of Great Britain that in international relations, there are no permanent friends or permanent enemies, only permanent interests.

Verily, during World War II, Japan and Germany were the enemies of the United States while China and Russia were its allies. Now, their national interests have changed and no longer intersect; so have their status as friends and enemies. Their enemies yesterday are their friends today. And vice versa. Ditto for China. Its rhetoric and acts are always calculated to promote its interests.

By itself, the award cannot be used by the Philippines to prevent (much less oust) China from occupying the rocks above water at high tide in the SCS and from reclaiming land, constructing airports, seaports and other installations thereon, because, as I said, it covered only rights over water, not over land.

Unlike the great powers, the Philippines does not have the military capability to watch over and protect Filipinos who fish or exploit the natural resources in the WPS. True, it has concluded mutual defense pacts with the great powers like the United States.

Sadly, however, these treaties have no express provisions that obligate them to protect our maritime rights in the WPS. They will do so only if their national interests impel them to. After all, the American people pay taxes to protect their interests, not those of aliens. “America First” is their slogan.

How then can we enforce our maritime rights in the WPS? Ah, that’s a good topic for another column.

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