The idea of China being brought to its knees – for repeatedly transgressing the rights and freedoms of the Philippines and flouting the United Nations Convention on the Laws of the Sea (UNCLOS) – by a UN body might particularly excite our fisherfolk and military personnel who navigate the troubled West Philippine Sea (WPS) daily. In 2023 alone, the country filed 30 diplomatic protests over China’s presence in the maritime zone. Ergo, will an intervention from the UN General Assembly (UNGA), as proposed by the Senate to the executive department, finally force the Asian hegemon to stop its illegal activities in WPS?
President Marcos, in his recent State of the Nation Address, vowed to continue to defend our sovereign rights and territorial integrity. His pronouncement coincides with the 7th anniversary of the country’s landmark arbitration victory against China. The latter has ignored it to this day.
International jurisprudence
Notably, The Hague Tribunal found that China violated our sovereign rights concerning our exclusive economic zone (EZZ) and continental shelf. The country interfered with Philippine fishing and petroleum exploration and failed to prevent Chinese fishermen from fishing in the zone. It also constructed artificial islands in seven features of the Spratly Islands, two of which fall within our EZZ and another within our territorial sea. These large-scale reclamation activities damaged the marine environment and fragile ecosystems. China also did not stop Chinese fishermen from harvesting endangered species in the zone.
The Tribunal also refuted China’s historic rights to resources and other pre-existing entitlements through its so-called Nine-Dash Line. When the UNCLOS entered into force in 1994, these historic rights were extinguished and therefore contravened the Convention’s detailed allocation of rights and maritime zones.
Clearly, the Tribunal resolved issues between the two countries related to the UNCLOS, such as EEZ, territorial sea and internal waters. Let me point out that the Tribunal did not decide on the maritime features of the Spratly Archipelago, which are claimed by the Philippines, China and four other countries. The issue does not fall within the ambit of the Convention. It is covered by Public International Law, which governs the conduct of nation-states and adheres to international law through treaties, customs and interpretations by their own domestic judiciaries and international tribunals (Library of Congress). The International Court of Justice (ICJ), the UN’s principal judicial organ that settles disputes between states, or an arbitration court will determine which claimant country has the strongest evidence of sovereignty over the disputed islands.
Regardless of China’s protestations, the Tribunal’s decision has become evidence or a source of international law. Under Article 38 of the ICJ Statute, the Court shall apply international conventions, international custom, general principles of law recognized by civilized nations and judicial decisions and teachings of the most highly qualified publicists of various nations.
As a state party to the UNCLOS, China must comply with the Tribunal’s ruling that has a binding force on all parties to the dispute (Article 296). Technically, China’s refusal to participate in the arbitration proceedings meant it can no longer file an appeal (Article 11 of Annex VII). Even if China imposes its military might over the WPS, it will not result in a sovereign title to the disputed features of the Spratly Islands. Under the UN Charter, a sovereign title cannot be acquired purely by the use of unilateral force (Philippine Legal Research).
Non-binding nature
China’s belligerent action in the WPS continues to escalate, prompting the Senate to ask the Marcos administration to sponsor a resolution before the UNGA. The end goal is to compel the country to accept and follow the 2016 Arbitral Ruling.
Getting the tacit support of the community of nations to stop China’s incursion into our territory is welcome. China deserves international condemnation for its relentless bullying of our compatriots, who are exercising their traditional fishing rights or are enforcing our maritime laws in the WPS. Elevating the issue before the UN, however, might not be the correct course of action.
By its admission, the international body said its resolutions are non-binding. These formal expressions of opinion under the UN system do not carry legal effect or weight. They are, at best, recommendatory. Under Article 10 of the Charter, the General Assembly may discuss matters or make recommendations to member-nations or the Security Council. The GA, however, cannot make any recommendation while the Council is exercising in respect of any dispute (Article 12).
On the other hand, member-nations are obligated to carry out resolutions adopted by the Security Council under Chapter VII of the Charter (Action with Respect to Threats to the Peace, Breaches of the Peace and Acts of Aggression). Likewise, the Council’s permanent members – China, France, Russia, the United Kingdom, and the United States – must unanimously approve all resolutions.
The only way for the General Assembly to universally implement its decisions is through consensus-building. According to the UN, the best way to encourage all member-states is to get all of them to agree on the same text. Those that did not vote in favor of a particular agenda item in the resolution will be less likely to enforce the said agenda item. In adopting a resolution by consensus, the viewpoints of everyone involved in the negotiations are taken into consideration.
Going back to my earlier question, can we muster overwhelming support for the Philippine resolution against China? I think not.
The UN has 193 members at present. These countries, including China, must agree on every agenda item in the Philippine resolution. Otherwise, there will be no consensus. And because China is a Council member, the resolution will definitely face rough-sailing in the General Assembly. We must also consider the fact that 151 countries have joined or benefitted from the Belt and Road Initiative (BRI). I reckon most of these BRI country-partners might not go against China if the GA adopts the Philippine resolution through a vote or by consensus. Thus, I agree with Senator Allan Cayetano’s suggestion that the Senate hold a caucus to further thresh out the issue.