Now that the Permanent Court of Arbitration has come out with a decision upholding all the issues raised by the Philippines against China, many could only speculate on its aftermath. Although many are basking on the euphoria generated by the decision, almost the same number are asking whether that US-formulated strategy could be enforced or we would just be nurturing a national humiliation that would forever make us militarily dependent on the US.
Before the decision, both countries tried to observe a status quo by refraining from taking any action that could heighten the tension. But when the Aquino administration decided to bring the case to the PCA, it was seen as a game changer. China promptly responded by not recognizing the tribunal or submitting to its jurisdiction. It means that from thereon, we would be relying on the usual reassurance of the US that it would stand by our side. China soon began to build permanent structures on some of the islands aimed at securing their position, and the US, despite its flotilla of warships, failed to deter China.
It is beyond doubt that the US principally instigated the Aquino administration to shy away from the negotiating table understandably because that move will deprive it of its role in the region and diminish the importance of its military presence. To some, it was a blunder because we denied ourselves the chance to resolve the dispute through direct negotiations. China’s refusal to recognize the arbitration court was ominous that our approach was heading for the rocks. The Aquino administration failed to realize that China only would reciprocate our move in a calibrated way to make it more difficult for us.
Despite that gloomy scenario, the Aquino administration persisted in heightening the tension by allowing the return of the US military bases. Whether it was at the instance of the US or was requested by the Aquino administration, what was clear is that the US has a totally different agenda why it wants to have access in the Philippines. Even if the Philippines has a subsisting mutual defense treaty with the US, and now reinforced by our signing of the Enhanced Defense Cooperation Agreement, the Aquino administration failed to analyze that our defense treaty with the US is only binding if the country is attacked.
Our defense agreement with the US is different because the US Congress will still have to decide whether or not to go to war for us. Besides, it is much doubtful whether the US would comply to its commitment to defend us over a disputed territory and not to one where we could categorically point as an occupation of our national territory to fit the charge of being the victim of aggression.
In short, the Philippines was hoodwinked to allowing the return of the US bases. This is evident because the US continues to echo a vague and different pronouncement why they are here. The country now appears to have been humiliated twice: first, by the instigation that we submit our case for arbitration for which the US knew could not enforce; and, and second that we allowed the return of the US bases only to realize that they have their own agenda. In fact, what we hear now is sort of a morale booster to keep up the propaganda war against China. To quote State Department spokesman John Kirby, “The world is watching to see if China is really the global power it professes itself to be and the responsible power that it professes itself to be. The world is watching this.”
In the end, the decision can never be said as vindication of our claim. First, the arbitral court should have not decided the case after China manifested that it would not recognize or submit to its jurisdiction or accept its decision. As our lawyers would often say, it was void ab initio because the court acted to hear and decide a case without jurisdiction. Second, international law has greatly been ignored and disregarded by the US after it emerged as the only superpower.
The architects of its foreign policy invented terms to justify its continued violation of international law. It came out with such sugarcoated terms as US exceptionalism and unilateralism to justify its bombing of Serbia, Libya, Tunisia, Yemen, Syria, Kenya, Somalia and Sudan, and to invade Afghanistan and Iraq. It continues to assassinate alleged terrorists by the use of drones or kidnap them using such term as special rendition to sanitize them from the jurisdiction of US courts.
The US disregarded the agreement it signed with the then-Soviet Union to end the Cold War in exchange for the abolition of the Soviet-led Warsaw Pact, and by advancing Nato to eastern Europe and entice countries to join the alliance, and establish military bases there. Worse, while it continues to actively support the arrest of black leaders in African as alleged war criminals or for violation of human rights to be tried in a racist tribunal called International Criminal Court, it refuses to ratify that agreement dubbed as the Statute of Rome the same way it refused to ratify the Unclos.
Another, many are puzzled why the Philippines opted to single out China. We know for a fact that there are several claimants and basic to their claim is that those islands and the waterway historically belong to them or that they are within the 200-mile limit delineated by the Unclos. Of course, the unsaid reason is to control the mineral resources that lie underneath the seabed. For instance, Taiwan rejects the decision giving the same reasoning made by China that the adverse ruling could undermine its claim. Nonetheless, they share the same view in defining what constitute the national territory of China.
On the other hand, Malaysia’s claim is one that is legally dubious. Its claim in the South China Sea only came into being after the Federation of Malaysia was formed, which the British handed to Malaya a leased territory known as Sabah. Sabah is owned by the Sultan of Sulu who by instrument of cession turned over the territory to the Philippines. Dissolve the Federation, Malaysia would have no legal standing to make a claim in the South China Sea. On the other hand, even if Vietnam was once the most determined and virulent claimant, tension there receded after China and Vietnam reached an agreement to settle their dispute. Another claimant, Brunei, has opted to remain silent.
Most dangerous, the decision opens the possibility for countries that did not participate in the arbitration proceedings to interpret the decision as favorable to them. This is a likely possibility because the decision opened a gaping hole that could lead to a free-for-all. In fact, other countries can equally claim they too won the case against China. In the end, the Philippines may have won the case but its claim could equally be contested by others to entirely change the dimension and complicate the dispute.