Dr. Tran Cong Truc
The Philippines’s East Sea-related arbitral case against China under the 1982 United Nations Convention on the Law of the Sea (UNCLOS), which started out on January 22, 2013, is coming to an end soon as the Arbitral Tribunal will shortly issue its ruling. The anticipation of what the justice will say about China’s irrational “nine-dotted line” claim as well as its other behaviors defying international law in the East Sea (the South China Sea) is tense. China has resorted to seeking international support for its stance on the East Sea issue generally, and the case brought by the Philippines in particular. The activities being employed by China in the case have been to conduct propaganda campaigns, make excuses, and distort the facts of the lawsuit, attempting to mislead the public about the case. Furthermore, China has pitted itself against the Arbitral Tribunal, disregarding the establishment of the arbitration and calling it “a violation of international law.” And Taiwan, known as an institution and not a member of the United Nations and the 1982 UNCLOS, has in recent time “put its hands” into the case with the intention to influence the Tribunal’s judgment and slow down its judgment issuance. Such intentional moves cannot shake our belief in the Arbitral Tribunal that it will perform its designated role in a responsible manner and come up with a ruling based on the sense of justice in the Philippines’s case, contributing to resolving the disputes in the East Sea peacefully and defending the solemnity of international law.
The Philippines took an appropriate move with the court case, which cannot be failed by China
On January 22, 2013, the Philippines, as a member of the 1982 UNCLOS, filed a lawsuit against China to the Arbitral Tribunal, which was established under Annex VII to the UNCLOS. It claimed that China had made erroneous explanations and applications of Articles 279, 283, and 284 of the UNCLOS. The Philippines’s move is viewed as an optimal and legitimate solution matching with international norms after the country failed to settle the dispute with China through peaceful bilateral talks. The lawsuit is also seen as a civilized step in compliance with international law and the correct move to handle the dispute, when the two parties could not reach a mutually agreed deal through talks.
As a member of the UNCLOS, China, however, used exceptions to deprive the UNCLOS’s jurisdiction agencies from exercising their jurisdiction over the case. It reasoned that the Philippines petitioned about the enjoyment and exercise of sovereign rights and the delimitation of sea boundaries, which are exceptions reserved as declared by China, so are out of the jurisdiction of the Arbitral Tribunal which was set up under Annex VII to the UNCLOS. In addition to that, China quoted the Declaration on the Conduct of Parties in the East Sea (DOC) and said the Philippines infringed upon the principles of the DOC and is further complicating the disputes in the region.
Despite China’s announcement of not participating in and not accepting the jurisdiction of the Arbitral Tribunal, the Permanent Court of Arbitration at The Hague – the Netherlands on October 29, 2015 made an announcement asserting the Tribunal’s jurisdiction to rule on the Philippines’s case in accordance with the UNCLOS. That China refused to join the case cannot deter the Arbitral Tribunal from exercising its jurisdiction to issue a ruling. China’s reasoning was also turned down as the Tribunal stated that the Philippines’s lawsuit reflected the dispute between the two countries pertaining to explanations and applications of the UNCLOS. The Tribunal also rejected China’s argument that said the DOC signed between China and ASEAN in 2002 is only an agreement to settle disputes in the East Sea through the means of negotiations. It pointed out that the DOC remains purely a political agreement that is non-legally binding. Therefore, that agreement has nothing to do with UNCLOS regulations on prioritizing the settlement of disputes by any means mutually agreed by both sides. The Arbitral Tribunal’s assertion of its jurisdiction over Manila’s lawsuit is viewed as an early victory for the Philippines and international law as well.
After its endeavors to deprive the Arbitral Tribunal’s jurisdiction over Manila’s case failed, China launched a “campaign” to deter the tribunal’s ruling. The campaign was coupled by such activities as lobbying, threatening and putting pressure on other countries to buy their support. Via this campaign, China declared that it had gained backing for its stance on the East Sea issue from many countries. However, the fact is bitter, as only a few threw their support for China’s way, driven by their national interests and also the pressures put on them by China. The remaining majority of countries have declared their support for the use of peaceful measures to deal with the dispute in compliance with international law. So, the support for China’s stance on settling the dispute bilaterally, as well as its stance on the Philippines’s lawsuit, as it said, was created by Chinese media only. Even Cambodia also discarded Chinese media’s news stories reporting that it reached a new deal with China regarding the East Sea issue during Chinese Foreign Minister Wang Yi’s visit to Cambodia in April 2016. Such lobbying activities showed that China doesn’t want to lose face, to be isolated and to be attacked by public opinion. Its reactions are increasingly worsening the situation but aren’t affecting the tribunal’s ruling. The US, the EU, Japan, the UK and many others have together voiced their support for the tribunal’s ruling and called on China to follow suit.
Taiwan “interferes” into the arbitral case but couldn’t alter the tribunal’s ruling
In recent times, Taiwan has been continuously taking an array of actions to intervene and influence the tribunal’s judgment, like announcing its stance on the East Sea issue, sending a consultancy paper to the court, and asking for the status of an island called Taiping to enjoy an exclusive 200-nautical mile economic zone. These moves one suspects were a calculated and surprise addendum, just when the tribunal is soon to issue its ruling over the Manila case, which the public is burning to know, and when China is increasingly acting wildly, with numerous provocative activities in the East Sea.
In what way does Taiwan’s ‘petition’ impact the tribunal’s judgment?
It’s clear that Taiwan’s ‘petition’ is legally null and void given Taiwan is neither a member of the UN nor the UNCLOS. Taiwan does not represent the defendant and its petitioned issue had not been raised by the Philippines in its lawsuit though the name of Taiping was mentioned at hearings. Therefore, this “petition” can be seen as a trick intended to deter the Arbitral Tribunal from announcing its ruling as scheduled. It forms part of a “catch-and-throw” tactic planned by China and Taiwan in an attempt to save the “cow’s tongue” which is likely to be “axed” by international law. However, any petition lodged to any jurisdiction agencies, when its content is yet to be verified, deserves examination and evaluation, as required by court procedures. As such, Taiwan’s behavior can likely affect the timing of the issuance of the judgment a little bit, not the judgment content. That the tribunal spent more time reviewing arguments and reasoning shows it upholds the sense of justice in exploring every aspect of the issue.
The tribunal will issue fair judgment
The above-said analyses show that no forces could prevent the Arbitral Tribunal from publicizing its judgment. However, even if the date of issuance may not be the date that was originally set and the ruling’s content may not fully cover all submissions explored by the arbitration. Major parts of the ruling could be dealing with the following:
– China’s ‘nine-dotted line’ claim grounded on a “historic right” does not comply with the UNCLOS so it is void
– Taking into consideration legal status of some entities mentioned by the Philippines in the lawsuit, a 12 nautical mile waters zone could only be permitted
– Evaluating China’s violation of the UNCLOS when hampering the Philippines from exercising its sovereign right and jurisdiction in its sea area as mandated by the UNCLOS
The public has a belief in the fairness and lucidity of the arbiters assigned to handle the lawsuit. If the tribunal’s judgment deals with the said contents in a comprehensive and clear manner and in conformity with UNCLOS regulations, it will meet the trust and expectations of the regional and international public, in the struggle to defend justice and the legitimate rights and interests being participated in by countries sharing the East Sea, where China is using its power to claim sovereignty. However, if for whatever reason, the tribunal’s judgment might not fully cover all three of the contents mentioned above, or if it only focuses on clearing China’s “cow tongue” claim, it would still be viewed as a valuable victory that should be recorded as now clearly among international legal precedents.
What should ASEAN and Vietnam do?
In that situation, Southeast Asian countries need to establish a single assessment of China’s behaviors in the East Sea as having affected peace, stability and development in the region. By doing so, they can speak as a single, powerful voice to prevent this giant ‘octopus’ from expanding its legs to waters that are
already under legal sovereignty, and are of the sovereign right and jurisdiction of other countries. In the short run, the ASEAN member countries, especially the four most involved, namely Brunei, Malaysia, the Philippines and Vietnam, which have also declared sovereignty in the East Sea, need to work closely together to support and protect the 1982 UNCLOS, as well as backing the sense of justice and lucidity of the arbiters of the tribunal, together with announcing their stance on supporting the arbitral verdict. Small or big, countries have to abide by international law and the Arbitral Tribunal’s ruling, with a view to safeguarding peace, stability, security, safety and freedom of navigation in the region and the world at large.
For Vietnam, a weightier, results-oriented legal fight on the East Sea issue should continue. A team consisting of experienced domestic lawyers and jurists practising their profession inside and outside the country should be established, together with assistance from foreign lawyers, to research the application of legal measures in addressing the dispute in the East Sea in line with required procedures and contents of the UNCLOS. The work is necessary and is a strong point of contention for Vietnam in the current situation. Looking forward, the contingent of lawyers and jurists should play both the core and vanguard roles in the legal battle. The Vietnam Lawyers’ Association, the Vietnam Bar Association, experts and scholars themselves, should uphold their position and role as responsible social organisations and citizens to take this task before the nation and the people./.