The impossible dream and the West Philippine Sea

BY JAY L. BATONGBACAL

 

Foreign Affairs Secretary Alberto del Rosario’s announcement that the Philippines is initiating UNCLOS Annex VII Arbitration has finally ended the suspense on the announced intentions of the Philippines of taking China to before an international tribunal. But it leaves many unanswered questions.

The most obvious question is whether it is possible to take China to arbitration without its consent. The government believes so, relying on the fact that China, like the Philippines, accepted arbitration by default because it did not choose any other procedure upon ratification of UNCLOS.

However, this is only one aspect of consent in international arbitration. The importance of consent of both parties cannot be underestimated; it is essential at each stage throughout the entire arbitration process, from the appointment of the arbitral panel, determination of jurisdiction to proceed, implementation of the process and trial on the merits, and compliance with the award. To achieve an unquestionably binding resolution, State consent is crucial at all these stages of the proceeding.

The second question is what happens next, what might China do at each of these stages in the coming months or years? DFA says that the process will take 3-4 years. In reality many things can happen during that period.

China’s options

First, China may either join the arbitration by appointing the 5-man arbitral panel with the Philippines, or ignore the Application completely. Joining the arbitration however is contrary to China’s long-standing position against allowing any third party to intervene in any of its disputes with other States, so most believe this to be highly unlikely.

But if China still ignores the Application after two months, the Philippines may request the President of the International Tribunal of the Law of the Sea (ITLOS) to appoint the remaining members of the panel. However, the idea of appointing a panel in this manner is so far untested, and there is no precedent for the unilateral appointment of an arbitral panel over the objections of a disputing State.

If constituted, the panel can establish its rules of procedure to govern timelines, reception of pleadings and evidence, and decision-making. Its first order of business will be to determine whether it has jurisdiction to settle the case, and if the claim is well-founded. China may appoint arbitrators and participate only for the determination of whether the case can be settled by the arbitral panel in this preliminary phase.

It may raise various objections: such as that it has not given consent, or that despite the Application’s description the case actually falls within either the mandatory or optional exceptions under UNCLOS; or, that there is a procedural infirmity such as failure to exhaust local remedies, or the existence of another dispute settlement mechanism under a different agreement such as the 2002 Declaration of Conduct; or that UNCLOS Annex V Conciliation instead of arbitration is the proper 3rd party mode applicable under the circumstances. Any one of these may be cause for a finding of lack of jurisdiction.

If China does not participate at all, the Philippines must then be the one to persuade the panel that none of those objections apply, and also it is sufficiently empowered to proceed with the case and decide on the merits. This will not be an easy task: as stated, an arbitration conducted over the express objection and without the participation of one of the parties contradicts the very essence of the international arbitration process.

If the panel decides that it does have jurisdiction, China may then decide to either continue with or withdraw from the proceedings. Continuation of the proceedings will require China to defend the so-called “nine dashed lines” as a singular exception to the system of maritime zones established by UNCLOS. Most scholars agree that the nine dashed lines is indefensible in international law, and is precisely the kind of exaggerated maritime claim that UNCLOS was designed to suppress. The inherent weakness of the position is therefore a serious disincentive for China.

If China decides to risk a defense, it would probably be accompanied by a legal offensive. It may invoke the equitable doctrines of estoppel and “he who comes to court for equity must come with clean hands,” attacking the validity of the Philippines’ own maritime zones based on what it calls the “illegal occupation” of the Kalayaan Island Group and calling it to task for previously insisting that its national territory extended westward only as far as the 1898 Treaty of Paris limits, and for enacting PD 1596 inconsistently with UNCLOS.

If it decides to fully participate in the arbitration, it may also attempt to expand its scope by seeking a favorable determination of sovereignty over the islands and rocks themselves, which the Philippine Application deliberately avoids.

A full determination of not only maritime zones but also of sovereignty over the islands and rocks in the West Philippine Sea (WPS) poses extreme risks to both sides, more so for China since on balance it has more maritime areas to lose. Again, it would contradict their long-held policy against third party intervention. It would thus be perfectly logical for China to instead withdraw, as this would leave issues hanging at the status quo.

Scenarios

If the arbitral proceedings reach argument and decision on the merits, the tribunal shall either award or deny the reliefs sought by the Application. Assuming that the Philippines is entirely successful, it would have on hand a definitive opinion about the illegitimacy of the nine dashed lines and a legal characterization of waters and seabed areas measured from the western coast of the main archipelago.

Its practical effect is to officially declare illegal all artificial structures on submerged reefs not built by the Philippines and constructed without its permission. Foreign occupation of islands and rocks would not be similarly affected, since this is integral to the issue of sovereignty over islands and rocks that the Philippine Application excludes from consideration. Since China currently occupies mostly underwater features and no full-pledged natural islands, the ultimate gain from a completely favorable award for the Philippines are a statement of legal obligations to remove structures like those on Mischief Reef, and to stop interfering with Philippine fishing, petroleum exploration, or other activities.

China would then decide whether or not to recognize and comply with these terms of the award. It would be well and good if it does recognize the award as it would imply a retreat of China’s permanent presence in the WPS. But if it refuses at the end of the international arbitration process, there is no international sheriff or police force to enforce the judgment against the losing State, hence, the integral need for State consent and good relations between the parties.

Wild cards

A number of “wild cards” can complicate this already difficult process. These are events not currently at play but which could take place and sidetrack Philippine expectations.

1.) The first is if China attempts to consolidate its position and create a fait accompli by building additional permanent structures on Bajo de Masinloc or any of the remaining reefs and shoals around the Kalayaan Islands while the case is pending.

The Philippines may seek an order for provisional measures from ITLOS, which it is authorized to issue in support of an Annex VII Arbitration process in order to preserve the rights of the parties pending the constitution of the arbitral tribunal.

This is a delicate matter, because by its very nature, provisional measures apply to both parties and the entire area of the dispute, which in this case is the WPS. For example, a measure requiring the parties to stop all petroleum exploration activities would be more damaging to the Philippines because all of its exploration areas are within the WPS, while China has many other areas other than the WPS.

If provisional measures are issued and an arbitral panel is subsequently constituted, the latter will then also decide whether it should maintain those measures as part of preliminary proceedings to determine if it has jurisdiction over the case. Such measures are dissolved if the panel finds it has no jurisdiction. But it is important to note that a request for provisional measures must be treated and argued as a separate case; the proceedings and decisions of one body have no bearing on the other. The Philippines must therefore be prepared to wage its legal battle before two separate fora: the ITLOS and the arbitral panel.

2.) A second wildcard is if China, pending arbitration, decides to suddenly “clarify” its nine dashed line claim and declare UNCLOS-based maritime zones to their maximum breadth around every island, reef, and rock it claims.

This is technically feasible and would result in relatively minimal changes to the outer periphery of the area of the South China Sea its claims under its jurisdiction. It will take the steam out of the arbitration by transforming the situation indubitably into one of maritime boundary delimitations falling within the optional exceptions to dispute settlement that China made in its ratification of UNCLOS. But the risk to China is that it implies an abandonment of the nine dashed lines, so it will require an enormous amount of spin-doctoring on the China’s side in order to address their domestic audience.

3.) What if Vietnam intervene in the arbitration?

Although an arbitration cannot affect the rights of non-parties, obviously if the result of this process is a legal characterization of the maritime zones in the WPS, the logic of any favorable findings could also work against Vietnam’s current position. It holds the most number of features in the Spratly Islands, but majority are also artificial structures on submerged reefs like China’s, and at least five are within the Philippine EEZ and continental shelf.

If Vietnam joins the Philippine cause against China, it would be admitting that these are likewise illegal. Removal of those structures will not affect its island possessions, but Vietnam might consider it to be in its legal interest to contest the Philippine Application to either preserve or pursue its claims to the entire Spratlys, which it calls Truong Sa. A Vietnamese intervention, if allowed, combined with Chinese non-participation could turn the legal contest into one between the Philippines and Vietnam instead.

4.) Another scenario is the tribunal proceeds, but grants an award that directs the parties to enter into bilateral negotiations to settle the issues between them. Especially in light of the absence of consent, and the interim nature of the reliefs sought in the Application (after all, the issue of sovereignty over the islands and rocks are the very source of the maritime disputes), a directive to negotiate would place the Philippines, after all that is said and done, right back at square one.

Alternative tracks

Yet, there are also several alternative tracks that the arbitration process might divert the parties to.

One is an amicable settlement negotiated between the two parties as recommended by UN Secretary General Ban Ki-moon.

It has happened on occasion that States began arbitral proceedings and then ended up negotiating a compromise agreement before the tribunal finished its task. Litigation, after all, can serve as leverage between parties, and may instead bring them to an agreed resolution they both create. This is usually preferable to States because the outcome is subject to their control unlike an arbitral award which may result in a completely satisfactory relief.

This presumes that there remains sufficient trust, confidence, and good relations between the disputing parties so that they continue to discuss possible solutions despite the engagement of the arbitration process. It goes without saying that it also requires an enormous amount of skill in bilateral diplomacy and negotiations, and a willingness to negotiate.

Another possible track is the intervention of a conciliator or mediator who offers amicable solutions to both parties.

Going into arbitration essentially means that there is a deadlock between parties, which often results from their having become too entrenched in their positions that they see no other ways out of their problem. A third party may have a different view of the issues and offer a fresh, independent perspective that enables it to find solutions where the disputing parties see none.

However, this presumes the existence of a disinterested conciliator/mediator who is independent and credible to both parties. It also assumes that parties are willing to negotiate a settlement based on the conciliator/mediator’s proposals.

Yet another track is the outbreak of hostilities.

Nobody wants this to take place, but logic dictates that it remain a possibility. While the chances of general hostilities are remote, incidents involving the use of arms on a limited scale are not precluded. All that it really takes is a simple mistake by a nervous, impulsive individual out at sea. China and Vietnam have already had such incidents take place between them, resulting in casualties and the forceful taking of islands in the South China Sea, even though the incidents did not escalate into war. The level of risk is usually proportional to the actual state of relations and speed of real communication between the two countries involved; hence, the importance of ensuring the continuation of cordial and genuinely friendly ties all throughout the arbitration process.

Though hostilities are very unlikely, non-military conflict in the form of economic and political altercations are par for the course and to be expected. Officially, both the Philippines and China agree and reiterate that the contentious issues in the WPS do not constitute the sum-total of all their relations, and that the dispute should not affect the development of other bilateral relations.

But the truth is that this separation is only artificial: one cannot be extremely hardline and adversarial one day and then completely friendly and cooperative on the next without losing trust and credibility. Only doubt and suspicion are generated by obviously inconsistent conduct.

It would be surprising if China were to not respond economically or politically with punitive intent, not only directly through its bilateral relations with the Philippines but also through its relations with other countries. The country could be politically isolated and economically stranded, especially from the expected growth of the Asian hemisphere.

The road ahead

The above scenarios paint a long and difficult road for the Philippines’ attempt to bring China to arbitration, and highlight the seriousness and gravity of such a decision.

It is no wonder that some describe the Philippine move as “bold” while others “desperate:” its future path appears as a battle between Don Quixote and the windmill, in addition to David versus Goliath. It is indeed an idealistic gambit, requiring the confluence of both good fortune and skill in order to prevail.

What people must understand is that the idealism in UNCLOS rules and the reality of international relations do not converge, and there is a constant tug-of-war between the demands of principles and the requirements of politics.

If anything, the arbitration process only places a greater onus on the Philippines to become better in international diplomacy, enhance its skills in bilateral and multi-lateral negotiations, and ironically, improve its relations with China. The arbitration cannot take place in isolation from other foreign relations, and any one of the wild cards and alternative tracks outlined above will require major diplomatic activity. Unlike in a domestic context where litigants can ask a court to render and enforce judgment after which the parties go on their separate ways, an international arbitration requires the parties to work together and jointly recognize and implement the award.

If the arbitration succeeds then the award can only provide a new starting point for conducting bilateral relations, and falls rather short of defining a final, comprehensive, and durable solution to the issues in the WPS.

If the arbitration fails then the parties likewise have no choice but to continue working bilaterally toward a peaceful solution because no proposal can work without both parties’ cooperation. This arbitration exercise may in fact be more useful in providing opportunities for breaking the deadlock in relations rather than producing a decision.

In the end, a truly durable solution to the issues in the WPS requires the Philippines to marshal incredibly skillful diplomacy, muster improbably good luck, and have absolute and unshakeable faith in an impossible dream. – Rappler.com

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