Showdown in The Hague
NEXT WEEK, a team of lawyers led by Solicitor General Florin Hilbay presents the Philippines’ case against China to the Permanent Court of Arbitration in The Hague. The filing of this case demonstrates unmistakably that this country prefers the way of peace. While China ramps up its martial rhetoric and actual military provocations, the Philippines has shown that it abides by the UN Charter and its proscription against the use of force to settle disputes. The Philippines is submitting to the rule of law in international affairs. It is not afraid to take its chances before a neutral arbiter.
By shifting the arena to the courts of international law at the Peace Palace, the Philippines has thus emboldened other states to speak up against China. It used to be alone in standing up to Chinese aggrandizement. Not anymore.
China questions the Court’s jurisdiction, and has sent word that it will boycott the proceedings. Accordingly, in next week’s hearings, what the Court will address is solely the question of jurisdiction—whether it has the power to resolve the dispute, without going into the “merits” or the substance of the Philippines’ claim. Most probably, the Court will find jurisdiction, or it can order a “joinder” of jurisdiction to the merits; either way, it will proceed to hear the merits of the Philippines’ case and hopefully rule in its favor.
By filing this case, the Philippines scored several points in one blow. One, until this case, each time China pushed its weight around, the Philippines faced only two choices: multilateral diplomacy (which China refused) or one-onone talks (which China loved). The Philippines has crafted a third recourse: a neutral body whose legitimacy is beyond question and whose word will carry weight with or without China’s participation.
Two, the Philippines shifted to a venue where might does not make right. Courts decide, not on the basis of politics, but of law. The Philippines invokes an international treaty that both countries have signed: the UN Convention on the Law of the Sea, which lays down the ground rules for drawing maritime boundaries, under which China’s nine-dash line is totally out of line. The Philippines is not wholly at the mercy of its powerful neighbor.
For sure, the asymmetry between Beijing and Manila is not completely neutralized. China can still make its presence—and immense war chest—felt. For instance, because China insists that the Court has no jurisdiction, it has not submitted any brief (“memorial”) in the proceedings. All that the Court has is the Philippines’ submission. But there has now appeared a book, titled “The South China Sea Arbitration: A Chinese Perspective,” and containing essentially all the points that China would have made had it filed a proper brief. One would be terribly naive to assume that this book has been kept hidden from the judges. Talk about having one’s cake and eating it, too. One good thing the Philippines gets from this is China can’t complain that its side has not been ventilated.
Three, the Philippines provides sympathetic states a more diplomatic way to find common cause with it so that they don’t really need to take sides but merely affirm the value of international law and of the peaceful settlement of disputes through international courts. And that should be enough of a boon to the Philippines, given the dire military scenarios and its isolation in the past as the only country foolish enough to stand up to the Chinese behemoth.
Already, other states are questioning China’s claims. Asean has slowly found its voice and, despite a history of “tepid protests” against China, has finally spoken up against China’s construction of artificial islands with military-grade capabilities in the disputed areas. The Group of Seven nations comprising the world’s most developed economies has similarly condemned China’s bid to consolidate its presence in the disputed areas before the Court renders a decision.
As expected, there are local naysayers who say that, even if the Court eventually rules in the Philippines’ favor, China has boycotted the case and couldn’t care less. Indeed, there’s no global gendarme who can enforce the Court’s verdict. But international adjudication works differently from local litigation, and a delegitimized ninedash line will be a serious setback for China’s superpower ambitions. And for a moment, just imagine the Philippines on the periphery of the Middle Kingdom, achieving what Chairman Mao long admonished his own legions: Dare to struggle, dare to win!