Series 23: Forever Peace or Forever War

The Philippines does it again!

On the eve of President Ferdinand Marcos trip to attending the 18th BRICS Summit in New Delhi as the current ASEAN chair, his Department of Foreign Affairs delivers an eviction notice on China:

“We call on China to cease its illegal occupation and activities in Panganiban Reef and Zamora Reef immediately, and to abide by the final and binding 2016 Arbitral Award.”

The demand followed an incident where Chinese forces fired flares at a Philippine Coast Guard (PCG) aircraft conducting a routine maritime domain awareness flight near the Kalayaan Island Group which was not innocent passage.

China is one of the founding members of BRICS and host of the Summit. When will the Philippine government stop embarrassing itself?

As always, the Philippines feigned its “ascendancy” in possessing “sovereign rights and jurisdiction” over low-tide elevations within its claims for exclusive economic zone.

          The problem with this statement is that the use of “jurisdiction” is a fallacy.

          Cambridge dictionary defines “Jurisdiction” is the official power or right of a court, government, or official organization to apply the law and make legal decisions within a specific area or over certain types of cases.”

By UNCLOS definition, the Philippines has indeed sovereign or inherent right over the features mentioned because it is within 200 nautical miles of our baselines, but by UNCLOS provision too, exists an estoppel to exercise that right unilaterally, most specially given the existence of a dispute.

Article 59: Basis for the resolution of conflicts regarding the attribution of rights and jurisdiction in the exclusive economic zone

In cases where this Convention does not attribute rights or jurisdiction to the coastal State or to other States within the exclusive economic zone, and a conflict arises between the interests of the coastal State and any other State or States, the conflict should be resolved on the basis of equity and in the light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole.

It was former Justice Secretary Menardo Guevara who enlightened me on this matter: hiding in a thin line between having a right and exercising that right, is a whale of difference when applied to the law of the sea between entitlement and delimitation.

Having a right means you legally possess an entitlement or claim, while exercising that right or delimitation that is the go signal and authority to actively use, enforce, or perform such entitlement in practice.

International law

What most lawyers like expired Justice Antonio Carpio miss is that while internal or domestic law is generally driven at its core by justice and authority, the primary goal of international law is the maintenance of peace and security, that encapsulates a foundational, realist truth about the global legal order, often taking precedence over abstract notions of justice, historical rights, or legal entitlements.

This concept, deeply rooted in the post-WWII legal framework, highlights a perpetual tension between what is fair (entitlement) and what prevents war (peace). With the birthing of modern international legal order under the United Nations Charter, Article 2 (4) strictly prohibit the threat or use of force against territorial integrity or political independence of any state.

The legal reality is even if a statehas a legitimate, historical, or legal entitlement to a piece of territory or a resource, it cannot provoke or use aggression or launch a war to enforce it.

The law values the maintenance of peace (status quo) over the forcible correction of a legal wrong.

In territorial disputes, international courts frequently look at effectivités—the actual, continuous, and peaceful exercise of state authority over a territory.

This is where the Philippines draw its present policy of deliberate assertion of its claims. In pursuit of adverse prescription, it postures occupation and administration of “territory” over time in the hope that international law may eventually recognize its sovereignty or in the case of EEZ, the enforceability of its sovereign right.

But such attempt of effectivités has not been without protest from rivals, and what we are doing in effect creates the dissonance in the South China Sea. Worse, by Chinese “policing” our behavior, it is their rights that are reinforced.

Article 33 of the UN Charter, and so does, UNCLOS, mandate that states resolve their grievances through peaceful means—such as negotiation, arbitration, or judicial settlement. A state cannot bypass these mechanisms just because it is “in the right.” The process of maintaining peace is legally mandatory, regardless of the strength of a state’s substantive entitlement.

While this presents a dilemma and faces heavy criticism, especially from lawyers and the legal profession, this principle prevents total chaos.

By prioritizing peace (the absence of conflict) over entitlement (justice), international law can sometimes freeze injustices in place, reward aggressive states that manage to create new facts on the ground, and leave aggrieved states without a practical remedy.

Such is the case in Mischief (Panganiban) and Subi (Zamora) reefs and other features: when we resorted to filing for arbitration (legal), China changed the facts on the ground through reclamation (state practice).

Ultimately, international law operates on the pragmatic assumption that justice cannot exist without order, and order cannot exist without peace. Therefore, preserving peace is the operational engine; entitlements are secondary.

Our summon, therefore, to China to abandon these features in compliance with the Arbitral Award has been reduced to absurdity, which should remind us that we are dealing with a civilization here that is more than 3,000 years old.

The premise that it violated our Republic Act 120064 is insane, as how can any action violate a law enacted twelve years after the fact? The idiot that drafted that statement while Secretary Teresa Lazaro was enroute to India with the President must be fired for not knowing that our Constitution prohibits ex post facto laws.

The infraction is made more serious by the fact that he was obligating a foreign country to submit to our national maritime zones act (which internal legislation was equally ridiculous).

This only explains why as result we have been engaging China in a vicious cycle of conflict rather than resolution.

We view the world from the perspective of our internal laws creating an intransigence that is a stubborn refusal to change our views or to compromise with others, not only within the end view of peace but often what benefits the basic interests of our people from sheer survival to prosperity.

As I have said it repeatedly in the past, we Filipinos have a problem for every solution.

Dichotomy between having and exercising

Unlike the mere possession of a right—which is broad and absolute—the exercise of a right is frequently subject to regulatory limits, procedural rules, or laws designed to protect public order and the rights of others.

For instance, while you have an inherent right to assemble or speak, you must exercise it within an ordinance of lawful time, place, and manner.

The same international law that established the “entitlement” also regulates the same through “delimitation” and provides the proper recourse for settlement between or among disputing parties.

Delimitation opens the road to jurisdiction.

This is why the Philippine citation of the 2016 Arbitral Award aggravates the problem, instead of resolving the issue.

Bluntly, the Award confirmed that we have entitlement because UNCLOS provides 200 nautical miles EEZ from our baselines, but it did not delimit it west of our coastlines in our favor because of the existence of disputes.

In contrast, the United Nations Commission on the Limits of the Continental Shelf (CLCS) confirmed in April 2012 that Benham Rise is part of the Philippines’ extended continental shelf (ECS), beyond our 200 nautical miles exclusive economic zone east of the Philippines, a total of 350 nautical miles of sovereign rights and delimitation, precisely because no other state contested that claim.

What the Award explicitly said

Another problem confronting Philippine positions is the absence of any preemptory considerations for legal basis and evidence preceding the effectivity of UNCLOS in 1994.

Even the Arbitral jurors engaged in double speak.

The biggest fraud that underlines the Arbitration presents itself “res ipsa loquitur” in contradicting itself. within the same Award it issued:

In Paragraph 272, the ruling reads:

“Finally, because the Tribunal considers the question of historic rights with respect to maritime areas to be entirely distinct from that of historic rights to land, the Tribunal considers it opportune to note that certain claims remain unaffected by this decision.

“In particular, the Tribunal emphasises that nothing in this Award should be understood to comment in any way on China’s historic claim to the islands of the South China Sea.”

But in the succeeding Paragraph 278, it read:

“… the Tribunal concludes that, as between the Philippines and China, China’s claims to historic rights, or other sovereign rights or jurisdiction, with respect to the maritime areas of the South China Sea encompassed by the relevant part of the ‘nine-dash line’ are contrary to the Convention and without lawful effect to the extent that they exceed the geographic and substantive limits of China’s maritime entitlements under the Convention.”

It made matter worse by adding “The Tribunal concludes that the Convention superseded any historic rights or other sovereign rights or jurisdiction in excess of the limits imposed therein.

The ambivalence created is why Philippine propaganda plays on the terms “sovereignty, sovereign rights and jurisdiction” using it generically in all its arguments when there are intrinsic contradictions in their denotations or strict, literal and explicit meanings.

This is not a case of mere semantics or play of words. Sovereignty and sovereign rights are not the same, and substantial implications: subsequently, jurisdiction derived from sovereignty does not equate with jurisdiction derived from sovereign rights.

China’s position is clearly from the sovereignty to land, while the Philippine position is based on sovereign rights on water.

UNCLOS, ipso facto the South China Sea Arbitration have no jurisdiction on land sovereignty, which is the fundamental reason why China did not participate in the Arbitration.

A relevant footnote is the fallacy of Defense Secretary Gilbert Teodoro made during the recent Seoul Defense Dialogue insinuating that China considers the Arbitral Award as illegal and null and void because in his exact words, “China lost”.

The lawyer and bar topnotcher argued that the Chinese refused to participate in the arbitration proceedings because they knew their expansive claims would fail under international maritime law.

Nothing is farther from the truth.

Teodoro’s statements repeating propaganda does not replace international law. Even if arguendo we grant that he won a legal argument, the 2013 Arbitration has no mechanism to enforce its Award and  international courts do not have a global police force.

A law that cannot be enforced is sterile.

Why China cannot comply

First for the simple reason that it did not participate in the process, and therefore it cannot recognize the Award.

State consent is the foundational mechanism by which international legal rules are generated, treaties are validated, and sovereign nations undertake binding legal obligations.

Unlike domestic legal systems that have central parliaments or congresses, and police forces, the international community lacks a global legislature. As a result, international law relies fundamentally on the State Consent Doctrine to function.

• Protects Sovereign Equality: Because independent states are sovereign equals, rules binding them must stem from their own free will rather than an imposition.
• Drives Law-Making: Treaties, written agreements, and formal ratifications rely on explicit state consent to create enforceable international laws.
• Builds Legitimacy: Giving nations the power to agree, object, or place reservations on treaties ensures that governments respect obligations they helped shape.
• Governs Jurisdiction: International courts and tribunals require the explicit consent of participating states before they can judge a dispute or enforce a ruling.

Under Part XV, Section 2 of the convention, specifically, Article 286 officially sets the stage for compulsory procedures, stating that if no settlement has been reached through voluntary means, the dispute must be submitted at the request of any party to the court or tribunal having jurisdiction.

Article 287 provides four dispute-settlement options.

But Section 3 of Part XV outlines specific limitations and exceptions.

Under Article 297, “Certain disputes regarding marine scientific research and fisheries within the Exclusive Economic Zone (EEZ) are exempt from compulsory settlement.”

Article 298: “When signing, ratifying or acceding to this Convention or at any time thereafter, a State may, without prejudice to the obligations arising under section 1, declare in writing that it does not accept any one or more of the procedures provided for in section 2 with respect to one or more of the following categories of disputes…”

This article allows state parties to exclude certain categories of disputes from the compulsory procedures entailing binding decisions, such as maritime boundary delimitations, historic bays or titles, and military or law enforcement activities.

This provision serves as a “safety valve” by excluding sensitive issues mainly related to sovereignty. 

On August 25, 2006, China submitted a written declaration that states in Chinese: “The Government of the People’s Republic of China does not accept any of the procedures provided for in Section 2 of Part XV of the Convention with respect to all the categories of disputes referred to in paragraph 1 (a) (b) and (c) of Article 298 of the Convention.”

The 2013 Arbitral Tribunal, however, ruled that China’s 2006 declaration under Article 298 of UNCLOS did not exempt it from the proceedings because the Philippines’ claims involved the interpretation and application of the Convention rather than core maritime boundary delimitation or historic sovereignty.

Beijing argued that the tribunal acted ultra vires (beyond its powers) by taking up the case, maintaining that the dispute was fundamentally about territorial sovereignty and maritime boundaries.

This is why peace cannot be based on mere legalese.

There can be long discussion about what the Tribunal did or did not do mainly because maritime zones derive its status from famous principles articulated by the International Court of Justice (ICJ) in its 1969 North Sea Continental Shelf cases.

• Land Dominates the Sea: The ICJ stated that the land is the legal source of the power that a coastal state can exercise over maritime spaces.
• Extension of Sovereignty: Under this fundamental concept of international law, maritime zones exist as an extension or projection of a nation’s land territory into the ocean.
• Codification: This baseline concept underpins modern frameworks like UNCLOS which dictates how coastal areas generate territorial waters, exclusive economic zones, and continental shelves.

Law and the mind can distinguish, but the reality on the ground is that maritime delimitation cannot be separated from land sovereignty.

This is why as far as I am concerned, the 2013 Arbitration was a kangaroo court, reflecting the opinions of Senior Ambassador Raosario Manalo in this interview:

Even if some peremptory rules could bind states without direct consent, the UN Security Council serves as the ultimate enforcer of international law, including the deployment of  military action. At the end of the day, China is one of its permanent members that possess veto power.

China’s position

The DFA statement became counter-productive because it gave China the stage to reboot in “clear, consistent and firm” the raisson d’entre of its presence in the disputed territories and its solemn resolve to enforce international law in the South China Sea.

• China has sovereignty over Nansha Qundao (Spratlys), including Meiji Jiao (Mischief or Panganiban Reef) and Zhubi Jiao (Subi or Zamora Reef), and their adjacent waters, and has jurisdiction over the relevant waters, with sufficient historical and legal basis. China’s construction on the relevant islands and reefs is necessary and entirely a matter within China’s sovereignty.
• In addition to meeting needs of military defense, the relevant construction is mainly aimed at improving the living conditions of personnel on the islands and serving various civilian needs such as maritime search and rescue, disaster prevention and mitigation, marine scientific research and ecological environmental protection, and fulfilling international responsibilities and obligations.

This confirms that it has also altered the facts on the ground and whence Beijing may have framed these sites as civilian or defensive in the past, three have been fully militarized (Mischief, Subi and Fiery Cross Reefs) with expansive runways, fighter jet hangars, anti-ship and anti-aircraft missile arsenals, radar systems, and laser/jamming equipment, serving as forward operating bases capable of projecting offensive military power.

 Four have been partially militarized as defense outposts (Cuarteron, Gaven, Hughes and Johnson South Reefs), while Scarborough Shoal is solely intended for nature reserve.

In the Paracel Islands fronting Vietnam, China’s most recently militarized and expanded feature is Antelope Reef.

 The Arbitral Tribunal in 2016 only ruled Ayungin Shoal as having a “quintessentially military situation.”

• In 1999, the Philippines sent a warship to illegally “ground” at Ren’ai Jiao (Ayungin Shoal). The Philippine side has repeatedly promised to tow away the warship, but has so far not fulfilled its promise.
• The Philippine side also attempted to carry out large-scale repair and reinforcement of the warship in order to achieve permanent occupation of Ren’ai Jiao.
• In addition, the Philippines has also carried out large-scale construction on Zhongye Dao (Thitu or Pagasa) and other islands and reefs of China’s Nansha Qundao that it has illegally occupied since 1971, building various military facilities in an attempt to create a fait accompli and occupy them for extended period of time.

China gives the Philippines a dose of its own medicine by applying the classic principle of reciprocity in diplomacy where states grant favors, rights, benefits, or penalties to another state only if they receive the same treatment in return.

• What the Philippine side has done seriously infringes on China’s sovereignty over the relevant islands and reefs of the Nansha Qundao and seriously violates the Charter of the United Nations and the basic norms of international law.
• China once again urges the Philippine side to immediately tow away the warship illegally “grounded” at Ren’ai Jiao (Ayungin Shoal) and withdraw all personnel and facilities from Zhongye Dao (Pagasa) and other islands and reefs illegally occupied.

The Philippines also has given China the opportunity to reiterate its position that the “Philippine Maritime Zones Act” and the so-called “South China Sea Arbitration” are illegal, null and void.

• China does not accept or recognize the “Arbitral Award”. and opposes and does not accept any claims and actions based on any “Award,” including the “Maritime Zones Act.” China’s territorial sovereignty and maritime rights and interests in the South China Sea are not affected by them under any circumstances.
• China will continue to firmly safeguard its territorial sovereignty and maritime rights and interests in the South China Sea, and will not accept any attempt to impose maritime jurisdiction on China through unilateral claims.

The Chinese Embassy defended the recent flare-discharge incident involving a Philippine aircraft, claiming the plane entered nearby airspace without authorization and threatened security personnel, prompting “necessary measures” by China.

At the same time, China is however committed to resolving relevant disputes through negotiations with directly concerned states, including the Philippines, respecting historical facts and observing authentic international law.

The problem is the Philippines has no institutional memory of history and international law before UNCLOS and its effectivity in 1994, and has no confidence undertaking bilateral negotiations without leaning on Uncle Sam.

Even its internal laws form a maze confusing the legislature and causing a policy crisis for the President who is the chief architect of Philippine foreign policy…

…causing the Philippine Navy, the Philippine Coast Guard and the Bureau of Fisheries and Aquatic Resources, to misplace their compass and get lost at sea.

Effects on Philippine economy of the intransigent policy of President Marcos Jr, based on the single issue of security.

   

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