‘Lawfare,’ not ‘warfare’

It is almost unbelievable that anyone would consider the outcome of the Philippines’ case against China, filed with the Permanent Court of Arbitration in The Hague, as anything but a resounding victory. And yet, to hear lawyer Estelito Mendoza talk about it, any victory we may have won was a Pyrrhic one—won at too great a cost to be worthwhile for us.

Why? Because there is no way the decision of the Arbitral Tribunal can be enforced.

Well, my suggestion to anyone who shares this view (including, I think, President Duterte) is to read Supreme Court Associate Justice Antonio Carpio’s e-book which I talked about in last week’s column. It is free, and can be downloaded at www.imoa.ph starting May 4, when it is to be launched.

The book, “Philippine Sovereign Rights and Jurisdiction in the West Philippine Sea: The South China Sea Dispute,” is the most well-researched, cogent analysis and discussion of all the issues the Reader may have questions about, and despite its kilometric title, it is surprisingly easy reading. You want to know about China’s historic claims? The territorial and maritime disputes in the South China Sea? How winning states in an international arbitration (historical experience) can help losing states take their medicine? It’s all there, and much more.

But, going back to the doomsayers and scaredy-cats who think that if we say “boo!” to China we are signing our death sentence, Carpio gives them short shrift. He starts with this: “The resolution of the South China Sea dispute is certainly not limited to an option of either ‘war or talk’ with China. The successful arbitration case filed by the Philippines against China proves that the ‘war or talk’ thinking is just too naive.” Then he gives us a menu of options: 1) The Philippines can sue in a jurisdiction that ratified the Unclos (United Nations Convention on the Law of the Sea) in case China installs oil or gas platforms within the Philippines’ exclusive economic zone (EEZ). The Philippines can ask the court having jurisdiction to attach the assets, located in its jurisdiction, owned by Chinese entities involved in installing or operating these platforms.

2) The Philippines can recover damages from China in the proper forum for severe harm to the marine environment in the Spratlys as ruled in the Arbitral Tribunal’s Award.

3) The Philippines can move before the ISA (International Seabed Authority) for the suspension of China’s exploration permits in the area until China complies with the Award on the ground that China is accepting benefits from the seabed provisions of the Unclos but is refusing to comply with its obligations under the dispute settlement provisions of the Unclos. The framers call the Unclos a “package deal” of rights and obligations. A state cannot cherry-pick—that is, it cannot avail itself of the rights without complying with the obligations.

4) The Philippines can likewise move before the UN Commission on the Limits of the Continental Shelf (CLCS) for the suspension of China’s application for an extended continental shelf (ECS) in the East China Sea until China complies with the Award.

5) The Philippines can negotiate its maritime boundaries with Malaysia and Vietnam applying the Arbitral Tribunal’s ruling. This will result in state practice adopting the rulings in the Award.

6) The Philippines can file its ECS claim with the CLCS, and China is then faced with a dilemma. If it opposes, it loses. If it does not oppose, it also loses. Carpio explains why.

7) Philippine Navy and Coast Guard vessels and aircraft can continue to patrol the Philippine EEZ in the West Philippine Sea because under the Philippine-US Mutual Defense Treaty, any armed attack on them in the Pacific area (clarified to include the West Philippine Sea) is a ground to invoke the treaty. Remember that America has declared that China must comply with the ruling of the Arbitral Tribunal, thus recognizing the Philippines’ right to patrol the West Philippine Sea.

All these are an example of “lawfare,” not “warfare.” With so many options, how can anybody say that we are helpless to enforce the Arbitral Tribunal’s ruling? The question is: Are we doing it? Or are we afraid of our own shadow?