ROCK SOLID: Standing up to China

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(Delivered by multi-awarded journalist Marites Dañguilan Vitug at the Davao City launch of her latest book, “Rock Solid: How the Philippines Won its Maritime Case against China” at the Media Center of the Ateneo de Davao University on 03 August 2018).  

Good afternoon to everyone.

Let me begin in 2016. Let’s go back to events two years ago.

On the evening of July 12, 2016, journalists gathered in the press room of the Department of Foreign Affairs (DFA), waiting for Foreign Secretary Perfecto Yasay to give the first official reaction of the Philippines to its sweeping victory in The Hague.

Mutliawarded journalist Marites Danguilan Vitug talks about the case of Philippines vs China during the Davao City launch of her 8th book, “Rock Solid: How the Philippines won its maritime case against China” on 03 August 2018 at the Ateneo de Davao University. MIndaNews photo by MANMAN DEJETO

A couple of hours earlier, the Permanent Court of Arbitration had announced the tribunal’s decision, releasing the 500-page award on its website. The air was heavy with anticipation —and a hushed silence descended on the room as Yasay stood before the podium to read a prepared statement which was to be carried live on national TV. He appeared morose with no trace of a smile on his face.

      The Philippines welcomes the issuance today of the Award by the Arbitral Tribunal…

      Our experts are studying the Award with care and thoroughness that this
      significant arbitral outcome deserves. In the meantime, we call on all
      those concerned to exercise restraint and sobriety.

     The Philippines strongly affirms its respect for this milestone decision as
     an important contribution to ongoing efforts in addressing disputes in the
     South China Sea. The decision upholds international law, particularly the
     1982 UNCLOS.

     The Philippines reiterates its abiding commitment to efforts to pursue the
     peaceful resolution and management of disputes with a view to
     promoting and enhancing peace and stability in the region.

With his deliberate manner, Yasay took up three minutes to read the four-paragraph statement after which he hurriedly left.

It was a surprising response to a landmark decision that garnered accolades from international legal circles and allies of the Philippines. “Without any other context, you might have thought he was delivering a eulogy,” a columnist for CNBC observed.

In his home, Jose Rene Almendras, who was foreign secretary in the last few months of the Aquino government, watched Yasay on TV. He did not sense a whiff of elation in the statement, not a hint of joy. Yet this was the culmination of the first ever international arbitration case on the South China Sea and gave the Philippines its shining moment.

In the DFA under Almendras, their victory scenario was to begin with a statement that would reflect the significant gains of the Philippines, celebrate the rule of law as a means to settle disputes and achieve peace. It would then call for international support for compliance with the ruling because there was no global policeman to enforce it.

His predecessor, Albert del Rosario, under whose watch the arbitration case was filed, had already talked with representatives of various governments for statements of support if the Philippines won. They were expected to follow after the Philippines released its own statement. These countries were going to take the cue from the Philippines.

But none of this ever came to be. The Award was issued soon after Aquino stepped down.

Near Manila Bay, hundreds gathered to celebrate, released balloons and tossed flowers in the air hours before the ruling was released. When news on the victory spread, #Chexit, short for “China exit,” rippled on Twitter.

Demonstrators outside the Chinese embassy in Manila waved colorful streamers: CHINA, RESPECT THE RIGHTS OF OUR FISHERMEN! #CHEXIT, CHINA OUT OF PH WATERS! Some carried a makeshift fishing boat with a Philippine flag planted on it. Emblazoned on the boat was CHINA, OUT OF PH TERRITORY!

* * *

It has been two years since the Philippines’ overwhelmingly won in its maritime dispute against China. But during this time, the official narrative in the Philippines  has been one with strong defeatist tones.

From Day 1, July 12, 2016, when the international arbitral tribunal issued its decision invalidating China’s nine-dash line and clarifying the status of certain features in the South China Sea, this ruling has never been given the national attention it deserved.

It has not been used as a leverage in the country’s dealings with China. It has not been part of the country’s diplomatic arsenal.

Marites Danguilan Vitug responds to questions raised during the open forum that followed her presentation on “Standing up to China” during the Davao City launch of her book, “Rock Solid: How the Philippines won its maritime case against China” on 03 August 2018 at the Ateneo de Davao University. MIndaNews photo by MANMAN DEJETO

In the two years that Duterte has been president, the Award has been brought up with China twice in bilateral consultations. Twice in two years. Foreign Secretary Alan Cayetano revealed this during a recent Congressional hearing called by the special committee on the West Philippine Sea.

The government says yes, we won but…

  • China is our source of economic deliverance. China will rebuild war-torn Marawi. It will invest heavily in the government’s ‘Build, Build, Build’ program. Millions of Chinese tourists will boost our tourism industry. China is our new source of weapons.
  • China is a dear friend who, unlike the EU, is nonchalant about the deadly drug war that has killed thousands and has led to a tidal wave of impunity.

These buts drown out the gains of July 12, 2016, weakening the Philippine position, making our country’s voice part of the chorus of approval of China in the region.

Today, as a journalist, I’d like to present a different narrative so that the public is not taken by the official story.

It is time we talk about a narrative that takes us back to the story of Philippines vs. China, the historic arbitration case that reverberated in various parts of the world.

It is time to go back to the almost two decades of back-and-forth with Beijing when our diplomats asserted Philippine rights over parts of the South China Sea—only to be rebuffed with the stock response that China had “indisputable sovereignty” over this vast area.

It is time to go back to the Award.

It is time to hear from experts, diplomats and the public on how to make use of our legal victory and start a national conversation on this vital issue.

Rock Solid

I take a leaf from what a foreign commentator wrote soon after July 2016: “Having seized control of the narrative, Manila must hang onto it… The Philippines must… tell its story well and tell it often.”

In my new book, Rock Solid: How the Philippines won its maritime case against China, I tell the story of this victory that gave the country so much—a maritime area larger than the total land area of the Philippines, rich in resources—but has since been disregarded by the government.

First of all, the case is historic for four reasons:

  1. It is the first to interpret the UNCLOS definitions of rocks, islands and low-tide elevations.
  2. It is the first case to be filed by a South China Sea claimant state against China.
  3. It is the first time the Philippines sued a country.
  4. It is the first case to address the scope and application of the UNCLOS provision on protection and preservation of the environment. As the Philippine lawyers said, international environmental law was still an infant when UNCLOS was negotiated.

The book addresses why President Aquino decided to take China to court. A number of people had openly opposed the arbitration saying that it would do more harm than good to our relations with China.

A lawyer who was part of the Philippine delegation to UNCLOS even called for a withdrawal of the case as the country was awaiting the decision of the international tribunal. This was to give the incoming president latitude in dealing with China as Aquino was to step down in June 30, 2106 and Duterte was to take over.

This may be a little known fact but on the day Aquino was inaugurated president in 2010, China sent him a formal invitation for a state visit, the first country to do so. It showed how strongly China wished to woo the new leader and continue the golden years it had enjoyed with his predecessor, Gloria Macapagal-Arroyo.

Reflecting on his early years as president, Aquino said he wanted to have very good relations with China since it was increasingly becoming an economic superpower.

But two things shaped Aquino’s views on China:

1) In 2011, China, displaying its might, stopped Philippine survey ships in Reed Bank or Recto Bank. These ships had less than two weeks to go before they could finish their survey.

2) A year later, in 2012, China took control of Scarborough Shoal after a one-and-a-half-month standoff, a tense confrontation over fishing rights. A series of dangerous near-collisions took place between Philippine and Chinese ships. Much later, the tribunal ruled that China’s provocations caused these, violating regulations on good seamanship.

Aquino told me in an interview that he particularly remembered the quip of one ASEAN senior leader: “There are big countries and there are small countries. That’s the way of the world.”

He mulled over this and thought: It was precisely the law that would serve as the great equalizer.

The case

With this as anchor—the law as the great equalizer—Aquino decided to take China to court, with the approval of the Cabinet, the leaders of Congress and two past presidents.

In January 2013, the Philippines began its legal battle.

More than a year later, the Philippines submitted its memorial, equivalent to a plea, which reached more than 3,000 pages. It was a product of massive research in history, international law, geology, hydrography, marine biodiversity, and cartography. This included ten volumes of annexes which contained maps, nautical charts, expert reports, witnesses’ affidavits, historical records, official communications.

Dabawenyos who bought copies of Marites Danguilan Vitug’s latest book, “Rock Solid: How the Philippines won its maritime case against China” await their turn for autographed copies at the Dsvao City launch of the book on 03 August 2018 at the Ateneo de Davao University. MIndaNews photo by MANMAN DEJETO

Written exchanges between the Philippines and China, including notes verbale, starting from the mid-1990s, were made public. Intelligence reports of the Navy, the Western Command of the Armed Forces, and the Department of National Defense were also submitted to the tribunal.

This was a first in the country’s contemporary history: that diplomatic cables and intelligence documents were revealed to the public, a fascinating trove of our country’s diplomatic history.

It is good to be reminded that it was the Philippines which hosted the first bilateral consultations that focused on the South China Sea in August 1995.

The Philippine story also unfolds in the transcripts of the oral hearings in The Hague which capture the essential points of the case. As you will see, Paul Reichler and his team at Foley Hoag used the richly documented diplomatic history of the Philippines-China dispute in their arguments before the tribunal.

These transcripts, the Philippine memorial, the awards (or the tribunal’s decisions) on jurisdiction and merit are accessible reading to non-lawyers like me. They can be downloaded from the website of the Permanent Court of Arbitration.

                                                   * *  * 

In the international law community, the Philippines v. Chinacase reverberated in forums, lectures, blogs and journals. Countless opinions, analyses and news reports in the media in various capitals of the world streamed in. It was a much-awaited award, a case that elicited extraordinary attention.

“July 12, 2016 is a date that will remain etched in the history of international adjudication, a professor of the faculty of law, University of Geneva,intoned in his introduction to a forum. “The Award was an undeniable judicial victory for the Philippines.”

In an essay, Lowell Bautista, who teaches at the University of Wollongong School of Law, hailed the case as the “first international litigation initiated by a claimant state in the South China Sea.”

He called it a “bold move, a game changer” which has “altered the terrain of strategies available to claimant states that have always eschewed legal options.”

In London, one of the Philippine counsels, Philippe Sands, put in some perspective: “This is the most significant international legal case for almost the past 20 years since the Pinochet judgment,” he told The Guardian.

Closer to home, the comments of Singapore Prime Minister Lee Hsien Loong were remarkable because these departed from the usually subdued tones of Southeast Asian leaders when they talk about other members of ASEAN. While visiting the US, he was asked about the Philippines v. Chinacase. He replied: “The ruling of the tribunal has made a strong statement on what the international law is…It is an impartial, objective, peaceful way of resolving issues.”

Japan, for its part, had been openly supporting the Philippines’ move to seek a solution to its maritime dispute with China via international arbitration. Ambassador Shingo Yamagami of the Japan Institute of International Affairs, a think tank, said in a speech in Manila in December 2016 that the ruling was a “historic decision and it will have a sustained power. Whenever legal scholars or international experts review this case or similar case, this arbitration award will stay for good, forever.”

He went on, in a reassuring way: “This ruling is going to be the litmus test of the rule of law in East Asia…We do not want to see bullying, we do not want to see a world where only might prevails… You might feel lonely standing at the frontline, but you are not alone.”

* * *

It was only in 2009 when China made official its U-shaped nine-dash line claim, when it transmitted it to the U.N. China claimed historic rights but in reality, it had no legal basis. China wove its fiction from thin air, like arbitrarily drawing boundaries over existing maps. Del Rosario described the nine-dash line as a “Berlin wall of the sea: a giant fence owned by and excluding everyone but China itself.”

The tribunal conducted a total of seven days of hearings, three on jurisdiction issues and four on the merits of the case. These were held more than a year apart.

Paul Reichler’s firm—the Philippine lawyers—hired an expert cartographer to help draw the maps because they made legal arguments using pictures.”  Through the maps, the Philippines showed the “outrageousness” of China’s claims. More importantly, Reichler said: “There is nowhere on earth where the Philippines can stand up against China, except in a court or international tribunal, and if you believe in justice for those who are the worst victims of justice internationally, then a career as an international lawyer gives you a chance to do something.”

To put the issues in perspective for the public, Supreme Court Justice Antonio Carpio warned that the country was facing the “gravest external threat to the Philippines since World War II.” In his speeches, he said that the root cause of the South China Sea dispute was China’s nine-dash lines claim, which gobbled up large areas of the EEZs of the Philippines, Vietnam, Malaysia, Brunei and Indonesia.

This, he said, enclosed 85.7 percent of the entire South China Sea. For the Philippines alone, this covered 80 percent of its EEZ, a huge maritime space which Carpio depicted in numbers: “over 531,000 square kilometers, larger than the total land area of the Philippines of 300,000 square kilometers.”

This was what was at stake—and the Philippines could keep it or lose it to China.

                                       * * *

Five judges who hailed from different parts of the world unanimously arrived at the decision, called upon to compose the arbitral tribunal in The Hague. They were all known in the field of international law, specializing in the United Nations Convention on the Law of the Seas or UNCLOS—a rarefied practice in a tight community, a number of whom are legal academics. They were credible and eminent in their fields, champions of rule of law in the vast seas.

In normal situations, where both parties agree to participate in the case, each country chooses one judge and the remaining three are agreed upon by both states. But from the beginning, China refused to have anything to do with the arbitration, citing the tribunal’s lack of jurisdiction to hear the case and the Philippines’ violation of a supposedly legally binding agreement to exhaust consultations and settle disputes bilaterally.

The Philippines thus chose one judge, Rudiger Wolfrum from Germany, a longstanding member of the International Tribunal for the Law of the Sea (ITLOS), a UN-created judicial body that settles disputes arising out of the interpretation of UNCLOS, and a law professor. Since China opted out, UNCLOS rules assign the ITLOS president to pick the rest of the judges.

In 2013, when the Philippines initiated the case, it was Shunji Yanai, a Japanese, who was president of ITLOS. His choice to represent China was Stanislaw Pawlak of Poland, an ITLOS member. He then picked the rest of the judges: Alfred Soons from the Netherlands, a law professor with extensive experience in international litigation; ITLOS member Jean-Pierre Cot of France, and Chris Pinto of Sri Lanka, a legal academic, who was appointed president of the tribunal.

Pinto eventually asked to leave the tribunal because his wife was Filipino, which may have led to a potential conflict-of-interest situation.

Thomas Mensah from Ghana, who was the first president of ITLOS, took over and chaired the tribunal.

Combined, the experiences of the judges in adjudicating law-of-the-sea disputes spanned many decades. This is apart from having plumbed the depths of UNCLOS in their tomes of publications and academic lectures.

It took them more than three years to resolve the issues. Within this period, they listened to two sets of oral hearings in The Hague, one on whether the tribunal had jurisdiction over the case, and the other on its merits.

*  *  *

In this stunning victory, the Philippines won on both jurisdiction and merits. The tribunal accepted the case because, at its core, the Philippines sought an interpretation of the definitions of islands and rocks by the UNCLOS—and the extent of surrounding waters these were entitled to.

After all, that was the reason the seminal UNCLOS provided ways for countries to come together, present their cases to clear up misunderstandings and resolve conflicts over what certain provisions really meant. One of these venues was arbitration.

The tribunal agreed with most of the Philippines’ arguments (13 out of 15), which essentially covered five key issues. The five judges ruled this way:

  • On historic rights and the nine-dash line: China’s claim of historic rights to resources in the waters of the South China Sea is illegal and not compatible with the exclusive economic zones (EEZ) provided by UNCLOS. There is no evidence that China had historically exercised exclusive control over the waters or their resources. Essentially, the tribunal junked China’s sweeping nine-dash line claim which covered 80% of the Philippines’ EEZ.
  • On entitlements to maritime areas and status of features: None of the Spratly islands is capable of generating extended maritime zones and none of the features claimed by China is capable of generating an EEZ.

In other words, none of the Philippines’ entitlements are overlapped by any of China’s, giving the Philippines the exclusive enjoyment of the resources in these areas.

  • On lawfulness of Chinese actions: China had violated the Philippines’ sovereign rights in its EEZ by interfering with Philippine fishing and petroleum exploration, constructing artificial islands and failing to prevent Chinese fishermen from fishing in the zone.

Fishermen from the Philippines, like those from China, had traditional fishing rights at Scarborough Shoal and China had interfered with these rights in restricting access. Chinese law enforcement vessels had unlawfully created a serious risk of collision when they physically obstructed vessels.

  • On harm to the marine environment: China had caused severe harm to the coral reef environment and violated its obligation to preserve and protect fragile ecosystems and the habitat of depleted, threatened or endangered species by building artificial islands.

Chinese authorities were aware that Chinese fishermen had harvested endangered sea turtles, coral, and giant clams on a substantial scale in the South China Sea and had not fulfilled their obligations to stop such activities.

  • On aggravation of dispute: China’s recent large-scale land reclamation, dredging and construction of artificial islands were incompatible with the obligations of a state during dispute resolution proceedings.

It permanently destroyed evidence of the natural condition of features in the South China Sea and, by doing so, it extended the dispute.

Overall, the rulingremoved cobwebs of doubt on the nature of the features in the South China Sea and what belong to the EEZ of the Philippines.

It has shrunk the disputed area to a much more miniscule size, comprising “not more than 1.5 percent of the 3.5 million square kilometers of maritime space in the South China Sea,” Carpio said in his lectures.

The Philippines reaped huge rewards. A small country with feeble military muscle won in an international court, notching gains for a case it built based on history and  the law of the sea forged by 167 states for years.

China was one of the signatories to UNCLOS but it chose to stay outside it and continued to live with the fiction that it had “indisputable sovereignty” over the South China Sea, rejecting the judgment and a tenet countries should abide by, the rule of law. This made the Philippine victory both sweet and bitter.

In reality, it was China that forced the Philippine government to seek a third-party arbitration. About two decades of diplomatic dialogues, consultations, back-and-forth cables led to a dead end. Another path had to be taken, another door had to be opened.

* * *

To refresh our memories, here’s a short timeline:

China, which used its ship, collected the data, and Vietnam supposedly processed it and the Philippines interpreted it. The survey results, some of which were blurred, have remained confidential. China, it is said, controlled the process. A case questioning the constitutionality of the JMSU is pending with the Supreme Court https://www.rappler.com/nation/59224-sc-petition-ph-china-agreement.

*   *   *

Here’s a little known fact: six fishermen helped the Philippines win its case. Four of them came from Masinloc, a coastal town in Zambales that was on the frontlines of the struggle against China’s aggression. (The two were from Infanta, Pangasinan.) These six men, who lived by the sea, may not have stepped into the august halls of the Peace Palace in The Hague but they made their voices heard through their written testimonies.

From Masinloc, one can see the craggy outlines of Scarborough Shoal (Bajo de Masinloc). It takes anywhere from nine to thirteen hours by motorized boat to reach the shoal which the Chinese grabbed in 2012. The Chinese coast guard stopped the Filipinos from fishing there, at one point spraying them with water cannons.

Some of the fishermen in the seaside town of Masinloc thought of Scarborough as their secret, the source of their bountiful harvests during the calm months, except  when the storms batter the area.  Financiers from distant places like Cebu hired them and they would live in their boats off the shoal for a few months, casting their nets until they filled up the small boats that would then take their catch to the shore. These included expensive fish like maya-maya (snapper), lapu-lapu (grouper), and talakitok(jack fish).

These sturdy men came back sunburned, with lines in their weather-beaten faces, but they earned enough to send their children to school. Geopolitics, however, came in the way and Scarborough was revealed to the world and, as they said, it suddenly became famous.

Tolomeo Forones, Miguel Lanog, Cecilio Teneo, Richard Comandante, all from Masinloc, had been fishing for years in Scarborough Shoal, some of them following in their fathers’ footsteps. Through their words and those of Crispen Talatagod and Jowe Legaspi from Infanta, the judges learned about the shoal as traditional fishing ground, not only of Filipinos, but also of the Vietnamese and Chinese, and how they were expelled from these rich fishing grounds by China in 2012. They gave their testimonies in Filipino which were translated into English.

The effect on the fishermen’s income and their sustenance had been profound.

*  *  *

Through the years, as the Philippine memorial and supporting records showed, Chinese fishermen routinely used destructive methods like dynamite and cyanide fishing in Scarborough Shoal and Second Thomas Shoal (Ayungin).

They blasted rare corals with dynamite to make them easier to extract and harvested endangered or threatened marine species, including giant clams and sea turtles. This was driven by the demand for live fish from the aquarium trade and from restaurants. Chinese fishing vessels were not on their own; they were protected by the government. China also dredged coral reefs to build artificial islands leaving irreparable harm to the environment.

As part of its case, the Philippines thus included China’s willful damage of the marine ecosystem. Its main argument was that China breached its international obligations not to destroy the marine environment.

In the memorial, the Philippines pointed out that despite repeated protests from the Philippines, China had not stopped its fishermen from engaging in environmentally harmful practices. It backed up its assertions with several photographs.

Conclusion

There are lessons to learn from other international cases wherein one of the states did not participate. Primarily, offending states, those that ignored the cases brought against them, eventually partly comply with the international court’s ruling—in various forms.

What Nicaragua did when the U.S. failed to comply with the ruling of the International Court of Justice (ICJ) shows options available to countries.  The U.S., at the time, was funding the contrarebels who wanted to topple the Sandinista-led government. When the case filed by Nicaragua reached the merits phase, the U.S. declined to participate. The ICJ ruled against the U.S. and ordered it to pay reparations.  The US ignored Nicaragua’s request for negotiations on compensation and continued to support the contras.

Nicaragua went to the U.N. Security Council seeking a resolution to urge the U.S. to heed the World Court’s decision. The U.N. Charter says that if any party to a case fails to perform its obligations under a judgment rendered by the Court, the other party may have recourse to the Security Council. Nicaragua failed because the U.S., as permanent member of the Council, vetoed it.

Undeterred, it went to the U.N. General Assembly. Here, it succeeded. The General Assembly adopted four resolutions calling for “full and immediate compliance with the judgment of the ICJ.”

Overall, Nicaragua did not succeed in getting the U.S. to fully comply with the judgment. But the litigation was not useless. “Its strategy to resort to the Security Council and the General Assembly had the effect of securing publicity for the issue, which helped convince the US Congress to cut off aid to the contras in 1988,” wrote two international law academics.

The U.S. eventually provided aid to the new government in Nicaragua.

These same academics tracked compliance in the Arctic Sunrise case, wherein Russia refused to participate in a suit filed by the Netherlands. Russia, in the end, partially fulfilled the ruling by the International Tribunal on the Law of the Sea (ITLOS).

In 2013, Russia seized the Arctic Sunrise, the ship which was flying the Dutch flag, and its crew of Greenpeace activists. The ITLOS asked Russia to immediately release the ship and allow the non-Russian crew members to leave the country.

At first, it stalled but eventually implemented most of the measures required by ITLOS, “saying they did this because they were following domestic legislation, not the ITLOS ruling.” The Arctic Sunrise and the crew were released but Russia had not yet paid compensation to the Netherlands.

Making the tribunal ruling work and seeing it come to fruition, partly or fully, will take a long time, way beyond a single president’s term.

It will require strategic thinking anchored on a strong sense of justice, equity and sovereign rights.

 

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