Mr. Chito Sta. Romana stressing a point during his lecture on “Understanding China: Its Position on the West Philippine Sea Arbitration Case.”
Chito Sta. Romana, a renowned expert on China, was the guest speaker at the PDRC annual general membership meeting on August 24, 2015. Mr. Sta. Romana shared his insights in a lecture on “Understanding China: Its Position on the West Philippine Sea Arbitration Case.” His talk was a synthesis of what he had observed and understood about China after living there for three decades.
On the Philippine-China arbitration, Mr. Sta. Romana explained that the issue on the jurisdiction of the International Arbitral Tribunal established under the United Nations Convention on the Law of the Sea (UNCLOS) remains pending. In response to the Philippine claim, China issued a position paper stating that it would not accept nor participate in the arbitration under the UNCLOS.
The International Arbitral Tribunal requested the Philippines to respond to the position of China on the issue of jurisdiction. Under Article 9 of Annex VII to UNCLOS, “Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings. Before making its award, the arbitral tribunal must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and in law.”
As contained in the position paper issued by China, (1) the essence of the Philippine claim has to do with territorial sovereignty, which is beyond the scope of UNCLOS and does not involve the interpretation or application of UNCLOS; (2) the issues raised in the arbitration have to do with the process of maritime delimitation and fall within the scope of China’s 2006 declaration excluding disputes concerning maritime delimitation from compulsory arbitration; and (3) the Philippines unilaterally initiated the arbitration and breached its obligation under international law since China and the Philippines have agreed to settle disputes through negotiation.
Mr. Sta. Romana explained that what the Philippines sought was not a ruling on sovereignty or maritime delimitation but a clarification of maritime entitlements under UNCLOS, since the status of disputed features will be the same whoever owns them.
He further clarified that the Philippines was not seeking from the International Arbitral Tribunal (1) a resolution of sovereignty issue over the disputed islands; in other words, the territorial dispute would continue for some time; and (2) the delimitation of maritime boundaries or exclusive economic zone (EEZ) but a clarification of maritime entitlements. The claims excluded by China from arbitration in its 2006 declaration were boundary delimitations, historic basis of titles as well as military and law enforcement activities.
Mr. Sta. Romana said that the Philippines wanted the International Arbitral Tribunal to declare that (1) China’s claims based on the nine-dash line theory was contrary to UNCLOS and invalid under international law; (2) China’s occupation of the four submerged features was unlawful; and (3) Scarborough Shoal and three other reefs that China occupied as “rocks” were entitled only to a 12-mile territorial sea.
He said that the problem was that the four submerged features were converted into artificial islands by China to bolster its claim and undermine the possible outcome of the arbitration. If the ruling favored the Philippine position, then the International Arbitral Tribunal would say that it should be enforced. If this happens, Mr. Sta. Romana believed that the Chinese would simply say “Come and get us if you can.” This was the dilemma the Philippines faced, he said.
Mr. Sta. Romana also believed that there was a cultural factor involved in the arbitration. One of the tenets of Confucianism that weigh heavily on China’s thinking is the saying “To sue a neighbor is to humiliate the neighbor.” The Chinese gives a lot of importance to “saving face” and quiet diplomacy in resolving disputes.
Prof. Junwu Pan, who teaches in China, wrote in his book Chinese Philosophy and International Law that “It was common [for Chinese] to regard adjudication as a kind of ‘shame and loss of face’ process. There are many vivid Chinese proverbs related to the general aversion to adjudication, for example the saying –‘in death avoid hell, in life avoid the legal courts,’ ‘to enter a court of law is to enter a tiger’s mouth,’ and ‘it is better to die of starvation than to be a thief, it is better to be vexed to death than to bring a lawsuit.’”
Prof. Julian Ku, a Chinese-American from Hofstra University School of Law, also wrote a paper on “China and the Future of International Adjudication.” He said that “China has generally avoided any treaty that would obligate it to submit to compulsory dispute resolution.”
However, Mr. Sta. Romana also cited some notable exceptions to this observation, viz.: (1) China joined the Convention on Settlement of Investment Disputes in 1990, which meant that it was willing to have arbitration in investment issues; and (2) China also entered the World Trade Organization in 2001 and agreed to its dispute-settlement mechanism. That was why China was willing to submit trade or economic disputes to arbitration
In closing, Mr. Sta. Romana hoped that the Philippines would overcome the issue on jurisdiction and submit the merits of its claim to the International Arbitral Tribunal. However, the International Arbitral Tribunal would not resolve the territorial dispute, which would continue even if the Philippines won in the arbitration. The International Arbitral Tribunal could resolve the maritime dispute to a certain degree by providing clarity on some legal issues.
The only way to resolve the territorial dispute and the maritime delimitation under existing international law is through bilateral negotiation, unless the Philippines could convince the Chinese to undergo mediation, conciliation or some other modes of dispute resolution.
The ultimate question for China, according to Mr. Sta. Romana, was what kind of power was it going to be? We saw the rise of China as a major power in the region and in the world. Did it want to be viewed as a benign and responsible power? Or, did it want to be viewed as an aggressive power similar to Imperial Japan in World War II or similar to Hitler’s Germany? This was something that China should resolve internally, and there was a debate now going on in China.