Only two hours ago, the Chinese Foreign Ministry through Ambassador Ma informed Filipino diplomats that they were rejecting the notice to arbitrate and the statement of claims which the Philippines furnished the Chinese delegation in Manila to arbitrate the legality of the Chinese nine-dash lines under the compulsory and mandatory dispute settlement procedure of the UN Convention on the Law of the Sea. This means that China will now snub the arbitration and will not participate in the proceedings.
This is truly unfortunate. China has repeatedly maintained that it exercsies” undisputable sovereignty and rights” in the waters within its nine-dash lines. And yet, it has failed to explain the nature and the basis of its claims. The arbitration would have been the appropriate forum where it can regale the rest of the world with both its legal and factual basis for its claim to title to a greater portion of the west Philippine Sea. With this latest decision, the world is again left to wonder what, if any, China’s legal basis is.
The arbitration under Annex VII of the UNCLOS will of course proceed. The Philippine has appointed a former president of the International Tribunal for the Law of the Sea and still a sitting Judge in the tribunal, Rüdiger Wolfrum, a German national as its arbitrator for the proceedings. The Chinese snub now makes it incumbent on the current President of the ITLOS, Shunji Yanai, a Japanese national, to complete the five man tribunal. Thereafter, it is expected that the Tribunal will sit as the lone judge of its own competence. It will have to determine whether the issues submitted by the Philippines, to wit: the legality of the nine-dash lines, the status of the waters outside of the 12 nautical miles of the Panatag shoal, and whether low tide elevations currently occupied by China in the disputed Spratlys group of islands form part of the continental shelf of the Philippines.
China;s snub, while regretful, has nonetheless made our task to resolve the West Philippines dispute somehow easier. As in all forms of litigation, an ex-parte submission is always easier than a disputed proceeding.
China’s failure to remove its vessels from Panatag Shoal is clear evidence of Chinese shadow play in the resolution of the dispute. Remember that about a month ago, Chinese authorities declared a fishing ban in the area for a period of two and a half months. Philippine authorities, in an effort to calm the standoff, followed suit and declared a similar ban. But contrary to the ban, no less than 20 Chinese fishing boats remain in the lagoon of the shoal, an area that is approximately as big as Quezon City. This number is in addition to no less than three Chinese government vessels in the area. This is clear doublespeak.
Despite China’s doublespeak, President Aquino still ordered our two remaining government vessels in the area to leave. The pretext was the onslaught of a powerful typhoon. But diplomatic pundits do not buy this. They say that the real reason is that our policy makers probably miscalculated that China, like us, would want to reduce the tension the area. They hoped that Chinese authorities would reciprocate the order for our vessels to leave. This did not happen.
At least, it is now clear that China does not intend, or wish, to scale down its action. It is also now clear that China will not settle for anything less than our relinquishment of our claim to the shoal. This is their desired end-result when they espouse a “diplomatic” solution to the standoff.
The question in our mind is why is China taking this position only now? And why the brazenness of its acts?
Observers posit that China’s actuations are a precursor of further trouble to come. The real battle ground is Recto Bank where we are about to drill for oil. Our responses to Chinese provocation in the shoal will in turn determine their future actuations in Recto Bank. On the basis of their current track record in the shoal, we should expect the Chinese to send its entire Armada to Recto should we persist in our effort to drill for oil in the area. Already, China has announced that it would conduct military exercises aimed at defending their perceived right to explore for mineral deposits in the West Philippine Sea. This is a clear message that China will use its recently acquired military might to defend its interest in these troubled waters.
It is imperative for Philippine policymakers now to acknowledge this state of affairs. Yes, diplomacy is the preferred mode of international dispute settlement. But this is only when the parties to the dispute observe good faith in their negotiations to arrive at a mutually acceptable solution to the dispute. It cannot be the solution when the Chinese view is that diplomacy should only result in our recognition of their claim to the area.
I have consistently argued hence that the only recourse for the country is to resort to the binding and mandatory dispute settlement procedure of the UNCLOS. The question was asked recently in a forum sponsored by the Ortigas library on why the Philippines has not brought the matter earlier to this dispute settlement body.
Professor Randy David had a notable observation. President Gloria Arroyo, according to him, courted Chinese support precisely by sitting on our options in asserting our national territory. This appears plausible given that instead of asserting our sovereignty, PGMA and her cohorts at the DFA and other line agencies—many of whom have recycled themselves as being pro-P Noy today—allowed the Chinese to engage, among others, in the exploration of our natural resources through the Joint Maritime Seismic and Exploration Agreement of the West Philippines Seas and the grant of mining grants in Diwalwal and North Davao to the company behind the botched National Broadband Network, ZTE Corporation. This is, many believe, in return for the many fraudulent Chinese funded projects entered into by the Arroyo regime, including the Northrail contract and the NBN-ZTE deal. In short, it was territory in exchange for pay-offs, or “tongpats.”
It is hoped that President Aquino will hence assert Philippine sovereignty in territories that are in fact ours. The starting point is a clear and unequivocal declaration from a body such as the International Tribunal on the Law of the Sea on which country is entitled to explore and exploit the natural resources in Panatag and in the Kalayaan group of islands.