Though China has effectively boycotted the arbitration

proceedings at The Hague, the Arbitral Tribunal has (once

again) given Beijing the opportunity to respond to Manilas
claims and arguments. From the
Philippines voluminous memorial, submitted in March
2014, to the Philippines additional arguments, submitted a
year after, China has been repeatedly given the
opportunity to make a counter-claim and defend its case.
No wonder then, the arbitration procedures has taken
such a long time.

Assuming the Philippines wins the jurisdiction argument

on at least some of its claims, we are looking at an
extended period before there will be a definitive verdict at
The Hague. So far, China has at best only produced a
position paper (Dec. 7, 2014), which directly questions the
appropriateness of compulsory arbitration as well as the
competence of adjudication bodies under the aegis of
United Nations Convention on the Law of the Sea
(UNCLOS) to oversee the South China Sea disputes.

While the Philippines is waging the snails pace legal

warfare, China is dramatically altering facts on the ground
on a daily basis. By all means, the real struggle in the
South China Sea is to protect your position on the ground,
defending every inch of your territorial claim lest others will
Darwin you out. For long, the Philippines foolishly
neglected fortifying its position across the Spratly chain of
islands and its 200 nautical miles Exclusive Economic
Zone (EEZ). It is high time for the Philippines to learn from
other claimant countries and optimally defend contested
features under its control.

There are signs that the Aquino administration is indeed

shifting its attention to the frontline. Thankfully, the
Philippines has at last started to repair its dilapidated,
rusty fortification in the Second Thomas Shoal. The
question is: Why only now? Since the early-1990s, when
China coercively wrested control of the Philippine-
claimed Mischief Reef, the Philippines has been acutely
aware of Chinas territorial ambitions in the South China
Sea.

A Tribunal under Siege

An additional complicating factor in the Philippine-China

arbitration showdown is that the Arbitral Tribunal itself
is facing an acute dilemma. Though Art. 9 of UNCLOS
doesnt prevent the resumption of the arbitration
procedures in absence of one party, the Tribunal is
nevertheless extremely concerned with the legitimacy of
the whole procedure and it has obviously been slighted
by Chinas explicit snobbery.

Collectively, the judges at the Tribunal have consistently

expressed their openness to Chinese engagement of the
arbitration process, stating how the arbitration body
remains open to China to participate in the proceedings at
any time. So we are talking about a quite open-ended
legal struggle. The Tribunal also turned down
the Philippines request for expediting the case by
simultaneous adjudicating both the jurisdiction issue as
well as the merits of the Philippines case.

The United States, which possesses the worlds most

powerful navy, has yet to ratify the UNCLOS, mainly
because of the intransigence of hardline elements at the
U.S. Senate. (Note: The U.S. Navy, however, observes
UNCLOS-related provisions as a matter of customary
international law.) The last thing the Tribunal wants is to
test Chinas the second most powerful country on earth
implicit threat to withdraw from UNCLOS altogether.

For the Tribunal, as much as it would want to defend the

Philippines claims, it also has an interest in making sure it
doesnt fully estrange the great powers, which actually
undergird the global order.
One of the most fundamental limitations of the Tribunal is
that it cant exercise jurisdiction on the question of
ownership and sovereignty claims in the South China Sea.
At best, it can question the validity of Chinas
sweeping Nine-Dashed-Line claims as well as the
admissibility of its artificially-created islands.

Limits of Law

Both China and the Philippines have expressed

reservations with subjecting their territorial claims to the
International Court of Justice (ICJ), which is the body that
can actually adjudicate on sovereignty claims. In short,
international law as a mechanism to directly resolve
sovereignty-related disputes is out of question.
Although, it seems many Filipinos have misunderstood
partly because of the overly upbeat pronouncements of
the Philippine government and the shortcoming of the
media the ongoing arbitration at The Hague as one that
involves direct adjudication of territorial claims. It may take
up to three months before the Tribunal announces its
decision on whether it can exercise jurisdiction over the
Philippines case against China.

During the recently-concluded oral arguments on the

question of jurisdiction, the main challenge for our lawyers
was to prove that (a) the Philippines memorial transcends
the question of sovereignty claims and that (b) compulsory
arbitration is the only way forward, since both parties have
supposedly exhausted all alternative options. So both
issues of jurisdiction and admissibility had to be addressed
simultaneously.

Assuming the Philippines wins the jurisdiction question, at

least on some of its arguments, then we are looking at
another lengthy round of hearings and clarifications before
a final verdict can be announced. The Tribunal will most
likely again provide China another opportunity to respond
to the Philippines at each succeeding rounds of hearings.

If the Tribunal categorically turns down jurisdiction on all of

the Philippines main arguments, then as a leading Filipino
maritime law expert Jay Batongbacal puts it:Manila might
find its legal case abruptly ended and need to completely
rethink its entire approach to the SCS disputes...
Another option is the establishment of a conciliation
commission (under Annex V of UNCLOS) under the aegis
of the United Nations. The problem, however, is that the
commissions final adjudication will not be binding,
assuming China will agree to participate at all. So at best,
we can get an advisory opinion on the South China Sea
disputes.

The Real Battle

In less than two years, China has reportedly

reclaimed 810 hectares across the South China Sea. In
the words of the U.S. defense chief, Ashton Carter,
Chinas reclamation activities are tantamount to more
than all other claimants [construction activities]
combined...and more than in the entire history of the
region.

Obviously, the real fight is the scramble on the ground.

Last year, the Philippine government temporarily
postponed the refurbishment of its facilities on the Thitu
Island (Pag-Asa) in order to maintain its moral high
ground amid the ongoing trial at The Hague. This was a
huge strategic mistake, which was thankfully reversed
later on, when Manila discovered the scale and pace of
Chinese reclamation activities in the area. Worryingly, as
China begins to dominate the airspace and the seascape
in the area, it has tried to even restrict the movement of
Philippine reconnaissance mission - and pose threat to the
Southeast Asian countrys supply-lines in the area.
Make no mistake, the South China Sea disputes are not
about morality, but instead about cold calculations vis--
vis national interest considerations and territorial integrity.
Practically all other claimant states in the South China Sea
have been rapidly reinforcingtheir position on the ground
in what is clearly a primarily Darwinian struggle of the
fittest and most determined nations.

If anything, international law doesnt bar countries from

resuming normal activities that is to say, refurbishment
and maintenance of existing structures on occupied
features, so long as they dont permanently alter its
nature, which is exactly what China has been doing by
transforming rocks and atolls into full-fledged islands. The
Philippines was the first country to establish an airstrip and
advanced military facilities in the Spratly chain of islands.