Home / Opinion / Fake news? No such ‘PCA decision’ on suit vs China

Fake news? No such ‘PCA decision’ on suit vs China

July 17, 2019

RIGOBERTO D. TIGLAO

NOT exactly fake news. But certainly a variation of it. This particular deception has been spread mainly by the Yellows, helped by mercenary academics and uncritical media.

For some reason, they are doing this to make Filipinos hate China and pressure President Duterte to take a belligerent stand against the emerging superpower.

This version of fake news: “The Hague-based Permanent Court of Arbitration in 2016 ruled in favor of Philippines’ claims against China.”

The Social Weather Stations even asked its respondents to respond to this false statement in its survey which was really intended to portray the false picture that Filipinos are angry over President Duterte’s stance toward China. It asked its respondents to reply yes or no to the statement: “The government should assert its right to the islands in the West Philippine Sea as stipulated in the 2016 decision of the Permanent Court of Arbitration (PCA).”

There is no such “decision of the PCA,” nor was the Philippine suit against China over maritime claims in the South China brought to that court. The SWS asked its respondents to reply to something that didn’t exist.

The body that heard the suit and issued the award — the term it used, and which never referred to it as a decision — was, as the title page of the actual document on it puts it: “An Arbitral Tribunal constituted under Annex VII to the 1982 United Nations Convention of the Law of the Sea.” (Annex VII details the procedures for arbitration.) The word “tribunal” is used here in its sense of a panel handling disputes, and not in its second meaning of a “court of justice.”

Office secretary

The PCA simply acted as a registrar (the depositary of documents), office secretary, and lessor of the offices of the panel members and their staffs as well as the impressive cathedral-like hall where the oral deliberations were held. The PCA staff also were the waiters to serve coffee and snacks and office boys to run to the copying machines. That there is a note at the top of the page “PCA Case No. 2013-19” is only because of its function as a registrar.

And what was the “Arbitral Tribunal”? You and your neighbor are squabbling over the use of an empty lot adjacent to both your houses. To settle it — and avoid you shooting each other — you agree to an arbitration, the Cambridge dictionary definition of which is “the formal process of having an outside person, chosen by both sides to a disagreement, to end the disagreement.”

Since arbitration means both parties choosing the arbitrator, the logical assumption for an arbitration is that it is voluntary on the part of both parties. This of course is so different from what a court means. A court determines if you broke the law or not, requires you to attend its proceedings, and you are bound by it, whether you like it or not.

This is where our arbitration suit that del Rosario and Carpio are so ecstatic about gets weird. While some commentators keep repeating that China is bound to comply with the award since it is under the Unclos, it did so only with the explicit qualification that it does not agree to the settlement of its disputes of maritime boundaries through the listed processes of that treaty, which includes arbitration.

That the five-man panel of arbitrators (all Europeans except one, a Ghanaian who is a London resident) went on to hear the case — for which of course they were paid hefty fees for each day of the hearing — has had international law scholars’ head spinning, even as they are fascinated by how it argued in the Philippines’ favor.

Conciliation

The huge cloud of doubt over the arbitral panel’s award is that it may have had no business hearing the suit in the first place. This is because it had not followed Unclos’ procedures, one of which requires the exhaustion first of conciliation processes and bilateral negotiations.

This obviously had not happened as the suit was rushed to cover up for Aquino and del Rosario’s bungling that lost us Scarborough Shoal to the Chinese in June 2012. However, the more important reason for its questionability is that, despite our American lawyers’ savvy claims that the suit didn’t involve sovereignty issues, the award quite obviously did — which is way beyond Unclos’ authority.

But why do the US, the Yellows, and the anti-China bashers keep saying that it is a “PCA decision”? It is not simply semantics. The term has powerful propaganda use.

A “court” connotes a body that enforces laws, which fits into the messaging of the US and del Rosario that China is defying the rule of law, and that Duterte has allowed it to do so. Albert del Rosario is devious as he refers to it often as the “Hague ruling,” not just because the PCA is in that Dutch city, but to confuse you. “Hague rulings” often refer to the decisions of the International Court of Justice and the International Criminal Court which are based there.

Indeed, many pro- and anti-Duterte netizens wrongly refer to the arbitral panel as a “world court.”

On the other hand, “arbitration” means a voluntary process between two parties over matters that don’t involve the question of whether which party broke laws, but is merely an attempt to reach a mutually acceptable agreement.

To refer to the award as by an “arbitral panel” — or simply by “arbitrators” — immediately raises the question that weakens its validity as well as significance: “How could it be an arbitration if China refused to join it?”

And Albert del Rosario and Antonio Carpio want Duterte to force China to comply with an award decided by arbitrators? Why, Carpio is even calling Western powers’ navies to patrol the South China Sea to make sure China complies with the arbitrators’ award. Has he gone mad?

We can’t just be patriots. We have to be smart patriots, so that we’re sure we’re not really serving the US’ interests in the South China Sea.

As one of my sources (in the academic sense) for this piece, the following are excerpted from a chapter by James Borton, in an anthology of essays he edited, Islands and Rocks in the South China Sea: Post-Hague Ruling (Xlibris, US). Borton is a non-resident fellow with the Stimson’s Southeast Asia program, who has written extensively on the Philippine suit against China.

Borton’s words:

“Having traveled quite intensively since the rendering of the 2016 award and having read many newspapers along the road commenting on this award, I was struck by the utmost confusion as to the body thought to be the drafter of this award.

“Since the proceedings had been held in the Peace Palace in The Hague, the home of the Permanent Court of Arbitration (PCA created in 1899) as well as the International Court of Justice (ICJ), both institutions have often been accredited as the drafters of this award.

“The ICJ, which is a totally distinct institution, has had no involvement in the above-mentioned case.

“As a member of a legal panel of a conference to comment on the 2016 award on the very day it was rendered, namely 12 July, in Washington D.C., I seized the occasion to stress the exact relationship between the PCA on the one hand, and the Annex VII arbitral tribunal that rendered the award on the other.

“There has been a steady growth in the establishment of Annex VII arbitral tribunals ever since the late 1990s, reaching a grand total of 17 such cases at present. However, none of the awards have been rendered by the PCA, since legal basis was not found in either the 1899 Convention or the later 1907 Convention for the Pacific Settlement of International Disputes, which together constitute the founding conventions of the PCA. That legal basis has rather to be found in Annex VII of the 1982 Convention.

“The question can then be raised why these cases are nevertheless to be found on the website of the PCA. The only explanation is that Annex VII arbitral tribunals may request the PCA to act as a registry, but this is no obligation whatsoever. Once constituted, it is up to the tribunal itself, after consultation with the parties, to decide on how it will deal with the duties linked to the registry.

“The PCA assigns a so-called ‘PCA Case No.’ to all these Annex VII arbitrations making use of that court to act as registry. Despite all these formal links that exist at present between almost all Annex VII arbitral tribunals and the PCA — which the latter carefully seems to nurture it must be admitted — the fact remains that these awards can simply not be assimilated with awards delivered by that institution.

“This point can hardly be overstated at present… because of the clear confusion that exists in the media.”

Email: tiglao.manilatimes@gmail.com

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