Beyond the Arbitration Panel decision

The victory of the Philippines in Round 1 of the compulsory arbitration case it brought against China, although partial because not all the points raised by the Philippines were admitted, has made many optimistic about the final decision of the Arbitration Panel. But given China’s position not to participate in and recognize the outcome of the case, a favorable decision of the panel may prove to be of little more than academic interest. And given that it is inconceivable that the Philippines would go to war, even if backed by its superpower treaty ally, to persuade China to accept a favorable decision, we may rue the day that when the road forked in two directions the Philippines chose the way it did, notwithstanding the trouble and expense entailed.

In fact the choice was not between good and evil. The positions of the Philippines and China have one thing in common: they were both rules-based. Those rules may apparently not be identical but there is nothing in heaven or earth conferring on any of them an order of importance or preference. The Philippines considers the UN Convention on the Law of the Sea (UNCLOS) and specifically the convention’s provisions on maritime jurisdictional entitlements as the primary source of the rules . On the other hand, China’s proposition to deal with the conflicting claims in bilateral negotiations is in keeping with conventional international law and customary diplomatic practice. The United Nations Charter in Chapter VI on the Pacific Settlement of Disputes indeed suggests negotiation first in an enumerative list of recources.