To the question of whether we should elevate the arbitral ruling upholding our maritime rights to the United Nations General Assembly (UNGA) for enforcement, my answer is “Yes, but not now, not during this regime.”
Why “Yes”? Because the UNGA is the best forum to help us enforce the ruling. Should the UNGA side with us, China — the proponents say — would become a rogue state, a pariah that would be compelled by international public opinion to respect our maritime victory.
In a joint statement, former foreign secretary Albert Del Rosario and retired Supreme Court justices Antonio T. Carpio and Conchita Carpio Morales argued that 145 of the 193 UNGA members have ocean and sea borders. Ergo, logically and reasonably, they would vote in favor of enforcing the ruling to uphold their national interest.
By so doing, these 145 littoral states would be reaffirming the United Nations Convention on the Law of the Seas (Unclos) which extended their old territorial sea limit of three miles to 12 miles, and recognized their exclusive economic zone of 200 miles and a continental shelf of up to 350 miles — both counted from their shorelines—from which they could extract natural and aquatic resources. Again, logical and reasonable.
Further, the United States (US), Great Britain, and other great powers will surely support us because the ruling upheld freedom of navigation and overflight in the South China Sea (SCS). In fact, the US — though not a signatory to the Unclos — has already started unilaterally enforcing the ruling by conducting a few weeks ago the “world’s largest maritime military exercises” in the SCS.
But why “not now, not during this regime”? The short answer is because our current Foreign Secretary Teodoro Locsin Jr. rejected the proposal, saying “We won already, why would you want to relitigate something that you already won… Once you throw it to the UN, I’m afraid China has the numbers there and it’s about numbers. It’s not about law.”
Locsin’s stance cannot be ignored because prior to being our top diplomat, he was our ambassador to the United Nations. Thus, he must have done a reality check on how to win in the world body.
And the reality I think is: UNGA members do not always vote according to law, reason, or logic. Many times, they decide according to politics and compromise, and exchange favors via the diplomatic quid pro quo, known in street lingo as “scratch my back and I will scratch yours.”
It goes something like this: We will vote in favor of proposal A which you want, provided you vote for proposal B which we want. Or, vote with us and we will grant the loan you want, or build the expressway in your country. For more vivid samples of quid pro quo, watch “Madam Secretary” on Netflix.
Perhaps, Locsin may have run out of favors to exchange, or believes they can be exchanged for favors that are more vital than the ruling. Or, that we simply cannot match the quid pro quo China can give. Or, whatever; that’s his call unless the President overrules him.
Another reality: True, countries bordering the SCS have maritime claims conflicting with China’s. Nonetheless, they do not automatically side with us; they weigh these claims vis-à-vis their other ties. For example, a huge amount of Brunei’s crude oil — the backbone of its economy — is imported by China. Should the latter stop or minimize its imports, Brunei’s economy may be severely imperiled.
To decline support for us, other countries may simply adopt China’s arguments without endangering their maritime interests, like: (1) the ruling is void due to lack of jurisdiction since the dispute involved claims over the land features in the SCS, not maritime rights; (2) the tribunal did not rule on, and the Philippines did not dispute, the Chinese ownership of these land features; and (3) unlike decisions of the International Court of Justice, the arbitral ruling is not part of international law and has no precedent value; thus, it can be ignored.
These arguments can be overcome. Surely. But given Locsin’s unyielding stance, I think it is best to wait for a new regime after the 2022 elections that may hopefully be gung-ho in using all its diplomatic weapons—reason, logic, law, politics, compromise, back-channeling, and quid pro quo, plus old-fashioned grit and the perseverance to win.
Otherwise, to insist now may result in the tragic and irreversible loss of what we already won.