Ineffective and a waste of time

I have just read Julian Ku’s

“China Launches Op-Ed Rebuttal to

Philippines’ Arbitration Case. It gives a good picture of where the case is going. Ku’s op-ed gives indications it will be ineffective and a waste of time.

The op- ed on the UNCLOS Arbitral Tribunal writes on why this will be so. China was given until Jan. 1 to reply to the Philippine arguments during the merits hearing.

China did not show up at any of the hearings, nor has it submitted any official written arguments to the Tribunal. Nor will it make any submission according to People’s

Daily, the flagship newspaper of the Chinese government. Instead it attacked the Philippines arguments in a response published as an editorial. “The first editorial, “Grandstanding Cannot Cover Up

Illegal Moves,” is focused on vilifying the Philippines for bringing this arbitration, and the remarks of its foreign minister Albert F. del Rosario.

The criticism is mostly non-legal, accusing Mr. del Rosario of bad faith, speaking untruths, and being an all-around bad guy. But the op-ed does contain the germ of a legal argument justifying China’s defiance of the UNCLOS tribunal:

State sovereignty is a core principle in contemporary international law. No force is above a sovereign state. No country, organization or individual could expect China to stand by and allow its interests to be harmed.

Here is a piece of advice for people like Mr. del Rosario: “Don’t misread the situation. The Chinese government and people are adamant about safeguarding China’s rights and interests in the South China Sea. All calculating moves against that would end up in failure.

The second editorial, China’s Sovereignty over the South China Sea Islands Brooks No Denial, offers more of a legal and factual argument. Interestingly, the editorial relies heavily on the legal force of the 1943 Cairo Declaration and the 1945 Potsdam Declaration as the basis for China’s South China Sea claims over the disputed Spratly/Nansha Islands. The theory here is that the Spratly/Nansha islands belonged to China, and that Japan forcibly occupied them during WWII. Cairo and Potsdam required Japan to return all “stolen” territories, ergo, the South China Sea islands go back to China.

The Philippines (apparently) argued at the merits hearing that the Nansha Islands were “terra nullius” and were not included in the “stolen” territories that Japan had to return to China. Moreover, the Philippines argued that the Cairo and Potsdam Declarations were not legally binding.

China responds with a factual claim (China has always had sovereignty over the islands) as well as legal claim (the Cairo and Potsdam Declarations are legally binding). This latter argument is not precisely accurate, although it is true that Japan promised to comply with Potsdam in its surrender. But none of this changes the fact that neither Cairo nor Potsdam say anything about the Spratlys/Nansha specifically, and seem a weak legal basis for China’s claims to those islands.”

In any event, the editorial is largely rhetorical rather than legal. It concludes by rallying the Chinese people against mysterious international forces threatening their sovereignty:

“The determination of the Chinese people to safeguard its territorial integrity is as firm as a rock. Only the Chinese people have the final say when it comes to China’s territory. Any attempt to negate China’s sovereignty, rights and interests through a so-called “arbitration award” will be nothing but wishful thinking, just like flowers in a mirror and reflection of the moon in water. By going back on its own words and confusing the concepts for the purpose of territorial expansion, the Philippines will only end up bringing disgrace on itself.”

Personally I find it disconcerting that we make a case for UN arbitration of the South China Sea conflict between the Philippines and China at the same time that we defy the UN Commission on Human Rights decision that the continuous imprisonment of former President Gloria Macapagal Arroyo. It is inconsistent.

But knowledgeable sources told this column that the Supreme Court may dismiss the plunder case against her. That would be the respectable and responsible move forward. With the UN decision the Supreme Court would be doing the right thing.

The plunder case against her was about her alleged misuse of P366-million intelligence fund of the Philippine Charity Sweepstakes Office (PCSO) during the latter years of her administration.

Her lawyer, Atty. Larry Gadon, counsel for Mrs. Arroyo said the SC might dismiss the case because the prosecution has no strong evidence that she allegedly mishandled the multi-million-peso intelligence fund.

Earlier, the high court had stopped the trial of Mrs. Arroyo on plunder for 90 days.

Her lawyers also sought immediate resolution of her bail petition and reversal of the final ruling of the anti-graft court. The ruling denied her bail motion in the remaining plunder case against her.

In the petition, Arroyo asked the high tribunal to rule on her case, citing a recent report from the United Nations (UN) Technical Working Group on Arbitrary Detention recommending her release from detention. The prestigious international lawyer, Amal Clooney handled her case in the UN.

The UN panel has recommended a consideration of Arroyo’s application for bail in accordance with the relevant international human rights standards. Gadon said the extension of the status quo ante is a good sign that Mrs. Arroyo will eventually be acquitted on the plunder charges. I usually do not bother writing on the Time Person of the Year but I will make an exception with their choice of Angela Merkel this year. First, it is because she is a woman and second because she had to work hard to achieve excellence at par or superseding those of her male colleagues. Reading her biography, it seems there was no indication that she would achieve that goal. The men laughed at her inadequacies. She was referred to as mostly quiet, doing her work ably in whatever capacity given to her. That humility paid off in the end when the men had to rely on her wisdom. She had the last laugh.

In naming her the person of the year Time said it was for “her central role in preserving European stability at a time of resurgent Russian aggression in eastern Europe, Angela Merkel is named today as The Time Person of the Year.

The German chancellor, who must decide by 2016 whether to stand for a fourth term in office, was chosen principally for taking control of the west’s fraught negotiations with President Putin of Russia after his annexation of Crimea.”