July 11, 2019
IT is inconceivable that some people could go to the extent of slandering the Republic. They are now propagating this canard that the Philippines had somehow “bought” the Permanent Court of Arbitration (PCA), which ruled in our favor. This view was triggered by a statement of former ambassador Rosario Manalo who echoed the argument of China that the arbitration was not warranted.
Manalo said the process was irregular and not according to the rules, and since China was not involved, the selection of the arbitrators was allegedly entirely in the hands of the Philippines. Manalo even quipped that it would then be understandable if the decision was favorable to the country. Which is most unfortunate since — while it may not have been what Manalo meant — it became fodder for the China defenders to push the line that the Philippines somehow became the beneficiary of a biased and flawed process.
This is indeed most offensive. And to think that Ambassador Manalo may not even be entirely correct.
One doesn’t have to be an international law expert to understand the basic reasoning which the PCA used in its award or decision.
China’s objections to the PCA’s jurisdiction were enumerated in a position paper dated Dec. 7, 2014. First, China argued that the subject matter of the arbitration was territorial sovereignty which is beyond the scope of the Unclos. Second, even if the issue falls under the ambit of Unclos, it would still involve questions of maritime delimitation which China had opted out of in a 2006 Declaration, and thus could not be the subject of compulsory arbitration. Third, China alleged that the Philippines had agreed to settle disputes through bilateral negotiations. And finally, China accused the Philippines of reneging on its obligation to exchange views with China on the means of dispute settlement. China further accused the Philippines of abusing the compulsory arbitration procedures of Unclos.
When China opted to ratify Unclos in good faith, it willingly agreed to abide by its processes. While it can raise its objection on the jurisdiction of the PCA, it was duty bound to abide by its decision after such jurisdiction would have been affirmed as having legal ground.
The PCA ruled that it was not deciding on any issue of sovereignty, since this was not within the scope of Unclos. In addition, while China manifested its intention to opt out of compulsory arbitration on issues affecting territorial delimitation, the PCA ruled that the issues at hand were not on matters involving territorial delimitation. The PCA pointed out that the dispute raised by the Philippines was on whether it possesses an entitlement to a maritime zone, and that this was a matter that was different from the delimitation of maritime zones in an area in which they overlap. The PCA ruled that these were issues that were not covered by the 2006 Declaration by China, and thus would qualify for compulsory arbitration.
Hence, the PCA faced no legal impediment in taking jurisdiction over the case filed by the Philippines. As for China’s allegation that the Philippines had reneged on an agreement for a bilateral mode of dispute resolution, this would have been mooted by the latter’s opting for compulsory arbitration. There is no impediment for the Philippines to take this option, considering that questions of sovereignty and territorial delimitation were not part of its pleadings. The PCA pointed out that the arbitration was about the legal basis of maritime rights and entitlements, the status of certain geographic features, and the lawfulness of certain actions taken by China in the West Philippine Sea.
China’s non-participation was taken into consideration by the PCA, even as it was not enough grounds to abandon the process considering that Article 9 of Annex VII of Unclos provides for such instances.
This is where Ambassador Manalo’s line of reasoning was incorrect. Just because China refused to participate in the process, it doesn’t mean that the proceedings were no longer a valid arbitration. This is simply because such an eventuality is covered by the pertinent provisions of Unclos.
But more fundamentally, Manalo should have known, as a veteran ambassador herself, that the stability of international institutions rests on good faith and the willingness of state parties to abide by procedures set forth and for which they willingly signed into. The entire global order will collapse if just one country like China refuses to participate in an otherwise valid dispute resolution mechanism, as affirmed by a body whose mandate is to uphold a treaty which China had ratified willingly, and after that body had exercised due diligence in inquiring into its own jurisdiction. China wanted the whole process aborted.
China made its position clear. The PCA took this into consideration and ruled that there was no valid argument to derail the process. The PCA took extra measures that the process would be fair to China, by constantly communicating with it and providing it with every document submitted and with records of the proceedings.
It is indeed sad that the views of Ambassador Manalo have led to the propagation of fakery and malicious accusations in social media. Many people painted the arbitration process as a flawed one, even to the point that some accused the panel of being biased in favor of the Philippines. Others went so far as to accuse the Philippine government of bribing the PCA, and of handpicking the arbitrators to suit its interests. What came out of this was the image of China being the victim of a corrupt Philippine government in cahoots with well-paid international lawyers to influence a gullible PCA.
It is simply hard to take that some Filipinos could say these hateful things against their own country, and that they would not hesitate to slander the image of the Republic, simply because they have an ax to grind against a former president that they hate.
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