Opinion     

South China Sea: After the drama, let the talks begin

People's Daily Online, August 8, 2016

• The international community space is creeping with tension. It is charged, bleeding and sagging at the ends. It’s like a super saturation that is not ready to take more troubles.

  The world seems to be living at the most troubled times with heightening terrorism everyday. Within the axis of Europe and North West Asia, the world has lost count of terror attacks with the last at Nice, France on July 14 with casualty index of about 90 deaths.

  The threat for the collapse of the delicate balance of peace at the Korean Peninsula is already a handful for the East Asia as North Korea toys with nuclear armament and a counter action planned by the South Korea, Japan and the United States. That is enough tension and needs no addition.

  That is why many watchers of the international space got uncomfortable over the turbulence in the South China Sea by countries that have no business there other than the business of peacemaking in matter that had been pending before the arbitral tribunal, The Hague for three years until the decision on July 12.

  There are reasons why the matter never deserved the frontline discourse it enjoyed especially given the slant towards crisis.

  By every assessment, that piece of land of questionable economic value is too infinitesimal to be a prime concern of the state of Philippines battling for the basics of existence.

  With 101m mouths to feed and economic strength of about $741b GDP, the country needs peace and friendship more than any dispute over a tiny spot of land that would not impact better life of the poor citizens. It is also too tiny to make China lose its status and reputation as pacifist world power that is not identified with ruffling feathers. No matter how viewed, the island or best stated, a portion of it, is far in essence, less than the peace and good neighbourliness of the two nations involved.

  Now, enough energy has been dissipated and it seems commonsense is about to rule the day after the drama that was never worth the sweat.

  The arbitral tribunal has given a ruling, and China that refused to join issues with Philippines in the arbitration has flatly refused the decision. In municipal litigation, a declaratory decision is not enforceable. In this case at the arbitral tribunal, the matter was unilaterally initiated by Philippines and fully financed by it. That implied from the beginning that whoever paid the piper dictated the tune, thereby destroying the foundation of neutrality on which fair justice is premised.

  All along, China hinged her argument for non-participation on grounds that the arbitral tribunal lacked jurisdictional competence to be seized of the matter for two major reasons - Philippines acted in scorn of her international obligation via a bilateral treaty between the two in respect of the same matter. They had agreed that whenever disputes that arise regarding territorial issues and maritime delineations, the two neighbours would resolve it through negotiations; Secondly, the ASEAN states also have another agreement on peaceful resolution of disputes through negotiations by states directly involved instead of recourse to a third party. Based on the two, China insisted her neighbor broke its own promise by approaching the arbitral tribunal over the same matters. That implies Philippines has no reason not to abide by the Bilateral Treaty it entered into with China over the South China Sea disputes.

  Treaty in international law is an equivalent of contract in municipal law. The rules compel no derogation, once agreed to, there is no reason to opt out. The liability is strictly binding. This has a good precedent in International Law in the case of the Free Zones of Upper Savoy and the District of Gex Case (Free Zones of Upper Savoy and the District of Gex, France v Switzerland, Judgment, ICJ GL No 32, PCIJ Series A/B No 46, ICGJ 293 (PCIJ 1932), 7th June 1932, Permanent Court of International Justice (historical) [PCIJ].

  It was between Switzerland and France when France decided to go against the agreement between the two. The PCIJ insisted that France had an obligation to Switzerland and has no right to legislate out. That is the prominent rule of Pacta Sunt Servanda. This explains why China insists on resorting to bilateral agreements instead of unilateral arbitration in dealing with issues between China and Philippines.

  Now, all the legalese about the South China Sea and arbitration are over as China has stood her ground and refused the decision. However, most experts in international law agree with China that the decision on the arbitral tribunal on this matter not only failed in international law but also remain invalid for the lack of enforcement measures.

  However, the legal details of the matter are overtaken right now. What counts is that China and Philippines should come back to the basics – reconciliation or peaceful resolution of the matter among them. Good enough, Philippines had a new president two months ago and he doesn’t sound like being keen about the arbitral tribunal and its decision as he had reacted by asking his citizens to keep calm after the judgment was handed down. In the first week of July, a former senior officer in Philippines described the former president that initiated the arbitration as acting against the interest of the state. That implies that from all indications the country is not ready to remain on her high horse on this matter and would prefer a discussion with China as China has always indicated her willingness for this.

  That way, the proper thing that should have been done first comes last. But it is still ok that it did come.

  China and Philippines going back to reconcile among themselves is what the world has been waiting for. It also shows China as a world power nation that has vast superiority over her neighbour but refuses to be a bully. That is a credit to the nation. It is a pointer to how big powers should use their enormous influence in accommodating rather than bullying smaller nations. It also shows Philippines as a reasonable country that values peace rather than grandstanding that might not earn her much.

  As the two would expectedly go to the negotiation table, they would have sent a great signal to the entire world embroiled in unnecessary wars to trace their steps to the peace alternative.

  If the two agree not to fight as the world foresees, China and Philippines would have demonstrated the strength in weakness and won the world to their side. That way, Philippines stands to benefit from China’s economic strength and advantage to liberate herself from hardship, the most important duty every reasonable country pursues.

  If I were a neighbour of China, I would not try the option of war with her over something as negligible as the South China Sea tiny spot. I would instead befriend China and tap from her enormous reach and make myself better because if the two go to war, there might not be any end, and while China that is already in possession of the island hangs on and keeps growing, her neighbour would waste the little energy it has over a lost cause.

  Does that justify the bigger force swallowing up the smaller? Not at all. And it is good China never demonstrated that, but always persuaded for reconciliation.

  China has over historic times had ownership of these islands and never lost her sovereignty in the South China Sea even in her poverty-stricken days. Therefore, beyond the arbitral tribunal decision which even a former judge of the World Court in the media described as hasty and out of place, from precedents like the Island of Malta Case, a similar dispute the World Court resolved on basis of the customary international law and historical facts, maybe, the ICJ might have a different decision on the matter outside the United Nations Convention on the Law of the Sea (UNCLOS) on which the tribunal premised its decision. But all those are not necessary. The most important way to go is what China had insisted on – resolution and discussion with her neighbour over the disputed islands and more.

  Now that Manila sounds positive to the tendency from Beijing, the world wants the decision of the tribunal and every rancour taken aside for peace to take over and the two parties to re-start negotiations. Peace remains the best benefit for the world in this.

  Ikenna Emewu (ikeroyalemewu@yahoo.com) is senior editor of The Sun Newspaper, Nigeria and Fellow of the CPDA and intern with People’s Daily online, Beijing

   

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