What if The Hague sides with PH on territorial row?

If the Permanent Court of Arbitration (PCA) at The Hague issues an award favorable to the Philippines regarding its case against China on their territorial dispute over South China Sea, would Manila be able to enforce the judgment against Beijing? Also, would such an award be valid and binding under principles and norms of international law?

These are just some of the questions raised by maritime and legal experts as the PCA announced that it will be holding the first hearing on the 2013 arbitration case in July. The case centers on the validity of China’s “9-dash line” claim over the South China Sea.

China has already expressed its refusal to participate in any way in the proceedings. The Philippines, on the other hand, is optimistic that an initial favorable ruling concerning jurisdiction and admissibility of the case will be the result.

First, a PH consensus

On the question of enforcement, experts point out that this would need to be applied indirectly. In an article, Country Risk Solutions CEO Daniel Wagner said the Philippines would have to build international consensus that could lead to multilateral, bilateral, or unilateral action to be taken by states and international organizations. This would be vital for Manila to build its case among key stakeholders in the international community if indirect enforcement is its best and only option.

But surely, said Wagner, the United Nations Security Council will not be involved in the enforcement equation because China is a permanent member holding veto power. This responsibility then comes down to the Association of South East Asian Nations (ASEAN) through the 2002 ASEAN-China Declaration of Conduct in the South China Sea wherein the parties reaffirmed their commitment to the United Nations Convention on the Law of the Seas (UNCLOS) as well as to the purposes and principles of the Charter of the United Nations.

Wagner, author of the book “Managing Country Risk,” stressed that UNCLOS is clearly adverse to the Chinese position which depicts a 9-dash line claiming almost all of the South China Sea.

Putting aside the enforcement problems, it has been noted that the PCA case will be good for building international consensus. States and governments not directly involved in the South China Sea dispute may see better reason to intervene or take unilateral action, with or without countryspecific defensive pacts.

Then, a litmus test While enforcement is one problem being anticipated should the PCA rule in favor of the Philippine position, the larger point being emphasized is the fact that China continue to refuse to be bound by the Rule of Law.

What it wants, said Wagner, is for co-claimants to allow Beijing to pick which provisions of international treaties it will willingly comply with, and which it will not. This is, infact, behavior unbecoming of a rising global power, experts said.

“It makes states which are signatories to treaties with China wonder if its signature is worth the paper it is printed on,” he wrote.

According to Wagner, maritime disputes in the South China Sea and West Philippine Sea will ultimately be a litmus test for whether China will act as a responsible member of the international community, willing to engage other contestants in a rulesbased regime in accordance with established norms of international diplomacy, consistent with a nation of its importance and stature.

“That is China’s challenge,” he said.

The question, added Wagner, is ultimately whether China will prevail in a court of law as well as the court of international public opinion, and whether China will be a graceful loser should the case against it prevail in The Hague.

“It looks increasingly likely that China will lose in The Hague,” Wagner pointed out. “It has already lost in the court of international public opinion. And it remains to be seen whether or not it will be a graceful loser, but this seems unlikely.”