A basic fact oft overlooked is that international law operates differently from domestic law. “Sovereignty” plays a huge part in this. In relation to territorial claims, resolution by treaty or customary law, as well as third-party institutions, come in terms of other States’ recognition but not actual conferment of ownership. Effectively, the States claimants do that among themselves.
Put another way, the ownership of territory is what the State claimant declares it to be.
This is particularly true of the July 2016 Philippines v. China Permanent Court of Arbitration South China Sea ruling, which essentially glossed over questions of ownership and instead focused on:
a) The 9 Dash Line: the Tribunal concluded the same is “contrary to the Convention and without lawful effect... [and] that the Convention superseded any historic rights or other sovereign rights or jurisdiction in excess of the limits imposed therein.”
b) Status of certain features: The following were pronounced as high-tide features: Scarborough, Cuarteron, Fiery Cross, Johnson, McKennan, and Gaven (North). Meanwhile, considered low-tide elevations are: Hughes, Gaven (South), Subi, Mischief, and Second Thomas Shoal.
“High Tide Features” are either “islands” (if able to “sustain human habitation or economic life of [its] own”) or “rocks” (if not). The former is entitled to territorial waters, contiguous zones, and a patrimonial sea; rocks merely have territorial seas. “Low Tide Elevations” (those submerged at high tide) have nothing.
The ruling would go on to say “that none of the high-tide features in the Spratly Islands are capable of sustaining human habitation or an economic life of their own... All of the high-tide features in the Spratly Islands are therefore legally rocks.” “There is, accordingly, no possible entitlement by China to any maritime zone in the area of either Mischief Reef or Second Thomas Shoal.” Furthermore, “as between the Philippines and China, Mischief Reef and Second Thomas Shoal form part of the exclusive economic zone and continental shelf of the Philippines.”
As decisions go, this was overwhelmingly in favor of the Philippines. The problem was the utterly bizarre absence of planning to take advantage of it.
There was, perhaps unintentionally, a moment of ironical levity in the Tribunal’s decision. In considering “the future conduct of the Parties,” the Tribunal solemnly declared “it beyond dispute that both Parties are obliged to comply with the Convention, including its provisions regarding the resolution of disputes, and to respect the rights and freedoms of other States under the Convention. Neither Party contests this.”
Indubitably, it would be difficult for China to contest the ruling as it determinedly made clear it wanted no part of it.
And there lies the rub: the point was to get the islands and not create beautiful developments in international law.
That a case should have been filed was not the question; it was the timing and preparation to ensure effectiveness thereof. Both counts definitely left a lot to be desired.
The proceedings were initiated January 2013, with a procedural/jurisdictional question that needed to be addressed first and was done so October 2015. A decision on the merits could have been expected only around 2016 or 2017, with the new administration left to do the heavy work of managing the expected victory.
And so it proved.
There were certain smug presumptions surrounding the case’s filing: that China would be shamed into compliance, that history (as was in US v. Nicaragua) would repeat itself, that a Philippine victory would encourage further suits by other claimants, and that the ruling would generate global widespread support for the Philippines. All of which were proven wrong.
There is no question, of course, that the Philippines must stand by the ruling. But jubilantly waving it around is just counter-productive.
Three things must be remembered: First is that international law and policy is in no way a matter of choosing a door among many (whereby picking one bars access to the others). It is a toolbox, the contents of which can be used singly, in varying combinations, or discarded as is necessary.
Second is time. The territories and international law will be there. Foreign policy is a game played in decades, even centuries. Demographics, economic and military strength -- all can and will change. What is needed are patience, resolve, consistency, and common sense.
Finally, it is essential we determine with clarity our national interests and -- more importantly -- our values as a nation. Foreign policy is but an extension of the domestic. From such comes a reasonable starting point with China.
Doing so could accomplish four things: the first is to halt further construction by China; second, is to take up China’s offer of common use of the constructed facilities; third is to implement the ruling (albeit even if on piecemeal basis) by agreeing on areas of shared political and economic interests; and finally, use the time acquired to strengthen Philippine competitiveness.
There is, after all, more than one way to eat dimsum.
Jemy Gatdula is the international law lecturer at the UA&P School of Law and Governance and Executive Director of the Philippine Council for Foreign Relations.