Commentators on events as long and complex as the ongoing tussle between the Philippines and China are wont to borrow the terminology of the world of boxing.
Thus, they are talking and writing about the proceedings in the Hague-based Permanent Court of Arbitration as though it were an event made up of rounds. PCA is an intergovernmental entity that provides facilities for the arbitration of disputes between countries and their institutions. It is the tribunal designated by the UN Convention on the Law of the Sea, or UNCLOS, to hear and resolve issues arising under the terms of the Convention. The Philippines and China are signatories to the UNCLOS.
In the eyes of the commentators, the presentation by the Philippines to the PCA of a 15-submission case against China seeking to invalidate China’s claim of sovereignty over virtually the entire South China Sea—encapsulated in China’s so-called nine-dash line—was Round 1 of a maritime boxing match between this country and its powerful neighbor to the northwest.
With the handing down, last month, of the 151-page decision to accept jurisdiction over, and to hear, the Philippine case, Round 1 has gone to the Philippines. Two sentences in the decision said it all. “(T)he tribunal was properly constituted under Annex VII (Arbitration) of UNCLOS. China’s non-appearance in these proceedings does not deprive the tribunal of jurisdiction.”
Maintaining the analogy with boxing, the commentators have said that Round 2 in the Philippines-China maritime match has begun. Boxing rounds are not always won in succession by one boxer, note the commentators, and Round 2 might be won by the Chinese, they say.
Could that happen? Is it possible that the Philippines, having scored a triumph on the PCA-jurisdiction issue, will now lose Round 2, which will go into the substance of this country’s claim? Possible but unlikely.
There are two principal reasons for this. One relates to the historical basis for China’s claim of sovereignty over all the area—water, reefs and all—encompassed by the nine-dash line. Highly commendable research performed by Supreme Court Senior Associate Justice Antonio Carpio has convincingly shown, through old maps and charts, that China’s claim of sovereignty over the area is totally without basis. For his labors in this regard, Justice Carpio deserves the profound thanks of the Filipino people.
The second reason why it is unlikely that the five-member PCA will not give Round 2 to the Philippines is the fact that it is to the PCA that UNCLOS signatories are directed to go in cases of disputes regarding the interpretation of UNCLOS provisions. Actually, there is not much need for PCA interpretation because UNCLOS, which was negotiated over more than two decades, embodies clear definitions of words and phrases like “islands,” “low-tide elevations,” “shoals,” “territorial sea,” “continental shelf” and “exclusive economic zone.” In line with the well-known legal precept, PCA has no business interpreting things that are not ambiguous. PCA, a judicial body, will have to apply international maritime law as it is set out in UNCLOS.
Nonetheless, PCA apparently has asked the Philippines for clarification on 26 points contained in its submission and has indicated that seven other submissions “will need to be considered in conjunction with the merits.”
Will the great Philippines-Chine maritime boxing match be a two-round affair, with the Philippines scoring a knockout? Certainly this country hopes so. With the strong historical basis for its claim—and the absence of any basis on China’s side, the clear language of UNCLOS, the high reputation of the PCA and the support of the international maritime community, there is every reason for believing that a Round 2 knockout is likely.