POSTSCRIPT /April 20, 2014 / Sunday


Opinion Columnist

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China explains why it rejects UN arbitration

SHOWDOWN: Whether the Philippines is ready or not, it is headed for a confrontation with China over the possession of some isles, shoals, reefs and low-tide protrusions in the South China Sea.

In the looming showdown in diplomatic dialogue and possibly on the high seas, Manila is emboldened by the promise of support of Washington, never mind if it could just be a pawn being pushed by the latter in its power chess game with Beijing.

Good luck to the Aquino administration, which is rushing the final draft of a new basing arrangement with the United States to be formalized during the April 28-29 visit of President Barack Obama on the last leg of his Asian swing to rally regional allies.

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ONE-ON-ONE: Some basic points have become clear:

  • China will not back down and is ready to use bluster in pressing its claim over some maritime areas being disputed by the Philippines, including Panatag and Ayungin shoals, and some islands in the Spratlys Group.
  • China will not participate in the arbitration of the territorial claim formalized March 30 by the Philippines at a United Nations tribunal under the UN Convention on the Law of the Sea.
  • In resolving conflicting claims, China wants direct bilateral dialogue with the Philippines, disdaining multilateral negotiations where other parties in or out of the region also participate with their own ulterior agenda.

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ROTATIONAL BASING: Aside from using its good offices to make China bend a little, the United States has been busy making its military presence felt in the region, ostensibly as part of a new pivoting or rebalancing of more of its forces to Asia.

After eight months of negotiations, the Philippines and the US are ready to sign an agreement allowing American forces to use local bases to position and project US might in the region.

The beefed-up US military presence is described as rotational, to go around the constitutional ban on the prolonged presence of foreign troops, bases and such facilities unless covered by a treaty mutually concurred in by the legislatures of the two countries.

The contract will expand the Visiting Forces Agreement, which initiated the idea of “rotational presence”. It will emphasize that the facilities are not US bases and are not permanent.

To rub in its compliance with the Constitution, a Malacañang spokesperson said that the agreement will not allow the bringing in of nuclear weapons, which are also banned. But she failed to explain the mechanics or procedure for verification.

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CONSUELO: To mollify the Philippines for swallowing the dilution of its sovereign control over visiting forces, it has been promised military aid. For this year, the US reportedly raised to $50 million its foreign military financing for Manila.

That may be peanuts as defense spending in a critical area threatened by a fire-breathing Red Dragon, but what can a timid Aquino administration do?

Washington also pledged to help the armed forces acquire long-range aircraft for patrolling (what about defending?) its maritime borders.

Of course to boost local revenues, the US promised to increase the frequency of port calls for R&R (rest and recreation) of its naval personnel.

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BEIJING EXPLAINS: China signed the UNCLOS as a UN member, but why does it refuse to be a party to the arbitration initiated by the Philippines? Below are some of the reasons advanced by Zhang Hua, spokesman of the Chinese embassy in Manila:

Committed to resolving disputes with its neighbor the Philippines through bilateral negotiations, China points out that in international law and international practices, direct negotiation is the most common and preferred way to resolution.

International justice or arbitration is another way, but it does not solve all the problems and related issues. There have been a number of cases where international judicial or arbitral bodies rendered a ruling, but relevant issues remained unresolved.

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SUCCESS RATE: Resolving disputes over territory and maritime issues through direct negotiations by the sovereign states concerned is an important consensus in the Declaration on the Conduct of Parties in the South China Seasigned by China and all ASEAN countries, the Philippines included.

On several occasions, China and the Philippines themselves have reached explicit consensus at the bilateral level on settling disputes through negotiations.

China has successfully settled boundary, territorial and maritime disputes through negotiations with 14 neighbors with vastly different national conditions. These settlements were made respecting historical facts and international law and in the spirit of equality and mutual understanding.

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DOUBLE STANDARDS: China’s refusal to accept the arbitration is an exercise of its right under international law and in conformity with international practice.

The Philippines’ initiation of arbitration is based on the UNCLOS whose framework does not apply to all maritime issues. The issues are principally territorial disputes over islands that are not covered by the Convention.

Under the UNCLOS, in disputes over territory, maritime delineation and historic title or rights, a signatory may refuse to accept the jurisdiction of any international justice or arbitration as long as it makes a declaration. So far, 34 countries have made such declarations, among them China way back in 2006.

When their major national interests or positions are involved, many countries have taken the position of not accepting the jurisdiction nor enforcing the rulings of related international litigation or arbitration.

Among them are both big countries like the United States and small and medium-sized countries. To accuse China of disobeying international law for not accepting arbitration is applying “double standards”.

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(First published in the Philippine STAR of April 20, 2014)

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