In the past year, China and the Philippines have been fighting a war of words over disputed islands in the South China Sea, and Asean unity on the issue has come under pressure.
Last week, Manila surprised observers when Foreign Secretary Albert del Rosario handed Chinese Ambassador Ma Keqing a note notifying Beijing it was seeking international arbitration to declare Beijing's moves in the oil-rich waters as "unlawful" under the 1982 UN Convention on the Law of the Sea (Unclos).
"The Philippines has exhausted almost all political and diplomatic avenues for a peaceful negotiated settlement of its maritime disputes with China," Rosario said last Tuesday at a news conference. On the surface, the attempt looks like a long shot. China has repeatedly said it has "indisputable sovereignty" over islands in the South China Sea and its adjacent waters. Beijing prefers bilateral talks to resolve the dispute, and for other claimant states not to internationalise the issue.
More importantly, China had in 2006 excluded itself from dispute settlement mechanisms available under Unclos. This relates to issues pertaining to maritime delineation, historic bays and military activities. Hence, China will not be compelled to participate in the arbitral tribunal.
But if one examines Manila's case, as detailed in a 21-page note verbale with notification and statement of claim released last Tuesday, the Philippines does have some tricks up its sleeve.
The document states that Manila is not asking the tribunal to decide on which country enjoys sovereignty over the islands, nor a delimitation of any maritime boundaries. And Manila did not raise any subjects China has excluded from arbitral jurisdiction.
Instead, the Philippines is calling on the tribunal to decide on a major issue - whether China's so-called nine-dash or nine-dotted line claim to nearly the entire South China Sea is lawful.
Within the maritime area encompassed by the nine-dash line, China has also laid claim to, occupied and built structures on certain "submerged banks, reefs and low tide elevations that do not qualify as islands under Unclos but are parts of the Philippine continental shelf", Manila's statement said. These features include Mischief Reef, which China occupied in 1995. China also occupied what the Philippines calls Scarborough Shoal last June.
By asking the tribunal to decide on the legality of China's nine-dash line under Unclos, the Philippines has essentially dealt a clever hand - China might have to clarify the extent and basis for its nine-dotted line claim.
This is something that many analysts have been calling for. Singapore's former senior minister S. Jayakumar said in 2011 that China should clarify its "puzzling and disturbing" nine-dotted lines map, since it had no apparent basis under Unclos and could be interpreted as a claim of all maritime areas within those lines.
By seeking China's participation before the tribunal, Manila has also changed the dynamics of its dispute with Beijing, which has persisted since 1995.
Speaking to The Straits Times on condition of anonymity, a legal expert said that Manila's submission might even compel China - which has largely been leery of settling territorial disputes in international fora - to change its mind.
Beijing would be wise to seek expert counsel before it decides whether to participate or even challenge the tribunal's jurisdiction, he said. "Beijing's initial reaction is likely that it would not participate. But if they seek expert advice, they will find it is a more complex decision than they first thought," the expert said.
Even if China doesn't participate, a decision by the tribunal in Manila's favour would put it on higher legal and moral ground, says Professor Carl Thayer at the University of New South Wales.
Dr Ian Storey, a senior fellow at the Institute of Southeast Asian Studies, said that China is facing a lose-lose situation.
"If it ignores the submission, then it will leave itself open to criticism that it does not adhere to international legal norms. If it decides to argue its case before the tribunal, it will have a very difficult task of justifying the legality of the nine-dash line and its claims to 'historic rights' within the limits of that line - and it might lose," he said.
An Asean diplomat who requested not to be named agreed.
"If they don't fight the tribunal's jurisdiction, it might embolden other claimants in the South China Sea dispute. If they do fight and win, they could lose in the court of international opinion," the diplomat said.
Analysts also noted that the Philippines has prepared its case well by recruiting top American lawyer Paul Reichler. He is a giantslayer in the realm of public international law, and became famous in 1984 when he won Nicaragua's case against the US over its paramilitary activities in Central America.
In 2008, he also joined a legal team acting on behalf of Georgia, after Russia had invaded the country that year. He managed to secure a historic ruling from the International Court of Justice, which ordered both Russia and Georgia to halt ethnic cleansing in Russian-occupied Abkhazia and South Ossetia while Georgia's case against Russia was being heard.
As the legal expert put it: "He is a wise choice. He has done David versus Goliath before."
China has 30 days to decide whether it would nominate an arbitrator to the tribunal. The Philippines has already nominated Judge Rudiger Wolfrum, a former president of the International Tribunal for the Law of the Sea, as a member of the tribunal.
Going forward, Manila's submission last Tuesday has significant knock-on effects on Asean.
Asean has been working with China on a legally binding Code of Conduct for the South China Sea. But Manila's latest move might affect Asean's centrality in the dispute. This will become even more pertinent as and when Vietnam - which is challenging China over the Paracels chain - decides to go the same arbitration route as Manila. It does look like the Philippines has scored a minor coup in its dispute with China.
Manila took many by surprise when it tabled its "well-written" submission last week, the Asean diplomat said. "To be honest, overall expectations of the Philippine diplomatic service are low. But what they did do is to listen to good legal advice. The submission was written by someone who really knew his job. They have stunned us by being so together on this case."
The Straits Times
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