Seeking justice beyond The Hague

July 12, 2019 marked the third anniversary of the Philippine’s victory in its arbitration case against China over the South China Sea. Three years ago, the Philippines received the arbitral award from the Permanent Court of Arbitration in The Hague that favored Manila’s maritime claims over the West Philippine Sea and legally discredited China’s nine-dash line claims to the South China (which later became a “10-dash line” then “11-dash line”). The award upheld the Philippines’ rights to a full 200-nautical mile Exclusive Economic Zone (EEZ) in the West Philippine Sea.

Three years ago, too, no less than the President of the Philippines “unilaterally” decided to shelve the arbitral ruling — at first, to restore bilateral relations with China that has been severed when the Philippines brought China to the international court, and later, for “friendly” relations with China. The Filipino public was made to believe that it was necessary and urgent. But three years have passed and what was initially a stop-gap diplomatic measure or strategy became, over time, the Philippines’ pivot to China.

The President’s pivot to China produced confusing claims. Did it just aim to revivify relations with China? Or did it seek to be independent from the US? Or both? The Filipino public was confused, especially when the government declared to pursue these as essential to the pursuit of an independent foreign policy. But how can we pursue an independent foreign policy when we cannot even uphold the arbitral ruling! How can it be an independent foreign policy when we cannot uphold our own national interests?

What may be clear though is that the pivot quashed the country’s legal leverage against China over the highly disputed South China Sea. Without undermining the Build, Build, Build infrastructure program of the government care of China, the pivot sabotaged what could have been the country’s powerful legal and legitimate ammunition against China.

As a consequence, China became more aggressive, not only with its continuous and massive reclamation activities and military installations in the South China Sea — unmindful of international law and the arbitral ruling in favor of the Philippines. On June 9, a Filipino fishing boat was rammed by a Chinese ship, sinking it in Recto Bank (Reed Bank) in the West Philippine Sea. The President called it “a little maritime accident,” only to retract the statement after he received flak from the public. To add insult to injury, the President declared that the Chinese can fish in Philippine waters while speaking at the anniversary of the Presidential Security Group on June 26.

Taking up the challenge of the President about looking for a “formula to enforce the arbitral award without going to war with China,” Supreme Court Senior Associate Justice Antonio Carpio proposed nine ways to do so at the Ateneo Law School’s graduation ceremony on July 14.

First, the Philippines and Vietnam can enter into a sea boundary agreement on their overlapping extended continental shelves beyond the Spratlys area.

Second, the Philippines can enter into a similar sea boundary agreement with Malaysia on the adjoining EEZs between Borneo and Palawan.

Third, the Philippines, Vietnam, Malaysia, Indonesia, and Brunei can enter into a Convention declaring that, as ruled by the arbitral tribunal, no geologic feature in the Spratlys generates an EEZ and there are only territorial seas from the geologic features that are above water at high-tide.

Fourth, the Philippines can file an extended continental shelf claim in the West Philippine Sea beyond our 200-nautical mile EEZ off the coast of Luzon, where China is the only opposite coastal state.

Fifth, the Philippines can send on patrol its 10 new 44-meter multi-role response vessels that were donated by Japan for use by the Philippine Coast Guard.

Sixth, the Philippines can welcome and encourage the Freedom of Navigation and Overflight Operations of the US, UK, France, Australia, Japan, India, and Canada in the South China Sea, including the West Philippine Sea.

Seventh, the Philippines can send its own Navy to join the Freedom of Navigation and Overflight Operations of these foreign naval powers to assert, on behalf of the Philippines, that there is an EEZ in the West Philippine Sea belonging to the Philippines as ruled by the arbitral tribunal.

Eighth, the Philippines can invite Vietnam, Malaysia, Indonesia, and Brunei to conduct joint freedom of navigation operations in their respective EEZ facing the South China Sea.

Ninth, the Philippine Government can support private sector initiatives to enforce the arbitral award.

Obviously, war is not an option! These nine proposals, if and when pursued, can help enforce the arbitral award. More importantly, these nine proposals can provide legal and legitimate means beyond and outside of war in seeking justice beyond The Hague’s arbitral ruling. As the title of Justice Carpio’s speech to the Ateneo Law Schools’ graduating batch of 2019 says — “Follow the Rule of Law, But Aspire for the Rule of Justice” — we must follow the rule of law but we must also aspire for the rule of justice.

There can be one more other way to seek justice beyond The Hague — one that will require the support of the international community and one where the goal is to strengthen the national justice system so the “actions” of China can be checked-and-balanced and Chinese government can be made accountable for its “atrocities.” If the 18^th Philippine Congress is serious about charter change, then this must be the right direction.

Diana J Mendoza, PhD, is Chair of the Department of Political Science at the Ateneo de Manila University.