When an international court or tribunal hands down a judgment, expect not a sheaf of papers but a tome. That was exactly what we got from the Permanent Court of Arbitration that ruled on our plaint against the People’s Republic of China. Arbitration is generally classified as an alternative dispute resolution method—“alternative” to formal adjudication. In international law, however, arbitration has been a fecund source of doctrine, and the pronouncements of many arbiters and umpires have made it to the corpus of international law classics, cited by most learned treatises on the subject.
A slam dunk—that is how many commentators have described the victory of the Philippines, because almost all of its submissions found favor with the tribunal. And that was not really because the PROC chose to recuse itself from the proceedings. China’s position—expressed in official statements, policy declarations, unilateral pronouncements—was carefully and diligently paid heed. The arbiters also did what most courts in the Philippines would not do: ask independent researchers to supply it with detailed reports on the facts.
China claimed exclusive rights to exploit marine resources in the contested area on the basis of “historic title.” Even before the Philippines went to court, the Chinese had retrieved from their archives ancient maps with strange markings and even stranger configurations that, they claimed, clearly showed that all the contested portions of ocean, islands, islets, shoals and reefs were appurtenances of the Middle Kingdom. For some time, we were flustered, but what more is one to expect from a kingdom that has always thought itself to be at the middle of the world and everything and everyone else as marginal, including “barbarians” claims to rights? Of course, there is the very good point made by Justice Antonio Carpio—who should be receiving plenty of national acclaim for his scholarly contribution to the Philippine case—that we are not even sure that those maps show what they purport to show, having been plotted centuries before cartography became a science! One has only to remember that charming scene from the original “King and I” (the Yul Brynner version) screenplay where Lady Thiang, chief wife, uses an ideological map to show, by sheer magnitude, the might of Siam in contrast to the misery of Burma! Geographical hogwash, but politically useful! We did no less, of course, and Tony Carpio had an armful of maps himself. But the tribunal ruled that historic title would not stand in the face of express provisions of conventional (treaty) law—such as the articles of the UN Convention on the Law of the Sea. The coastal state by provision of positive law enjoys sovereign rights over its Exclusive Economic Zone that not even claims resting on historic title may trump. This is certainly an affirmation of the positivity of modern law. Rosalyn Higgins, at one time president of the International Court of Justice, has argued persuasively for the conception that international law is to be thought of not so much as a set of rules but of processes by which decisions in the international arena are made. Considered thus, the Unclos was a process by which nations of the world (with the notable exception of the USA) agreed on a regime for the world’s waters. The vagaries of historic recall cannot stand in the way of those processes by which the global community arrives at consensus!
There are many other notable findings of fact and statements of the law that are better developed in specialized discourses. Such is the finding that the features in the disputed area does not qualify as islands and are incapable of generating an exclusive economic zone of their own. When is a formation an island and when is it not? Here, one sees how even geography’s definitions yield to the characterizations of law in the conduct of human affairs. While it seems that the arbiters made us of habitability and the capacity to sustain prolonged human occupation as criteria, that triggers very interesting questions in light of decisions of the ICJ and other international tribunals that have made pronouncements on the degree of “effective occupation” necessary to consolidate a claim to sovereignty over a non-habitable island!
But now, it seems, we are pursuing a policy of placation, with President Digong planning on making a trip to China, I hope, not to apologize that we won the battle. To ask for sobriety and charity in victory is all very well. There is no point to useless provocation. But the tantrums of the Chinese, even if it should be the rabid “nationalism” of a humongous nation with which we deal, should not tempt us into a position of misplaced reticence! We won, and most countries of the world that have spoken out have called on China to abide by the judgment. It contributes greatly to the cause of world peace when a people who have nurtured the myth that theirs is the “Middle Kingdom” are taught the political implications of that to which Ferdinand Magellan’s voyage (though ill-fated) gave practical demonstration: that the earth is round, and that there can be no middle kingdoms, really! The British saw their empire shrink, their monarch reduced to a figure-head. It was the same thing with Spain’s dreams of a global empire. And Europe, after Brexit, is less sure of itself now and more aware of the tenuousness of the vision of One Europe. The Chinese have to learn that important lesson, too —because when they do, the world will be better off. Catering to myths by flattery is never a good idea!
