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‘Might is right’ vs ‘Right is might’

By: Artemio V. Panganiban - @inquirerdotnet - Columnist/Philippine Daily Inquirer | April 25,2021 - 08:00 AM

By swarming the West Philippine Sea (WPS) with more than 200 militia and coast guard ships and by prohibiting our people from fishing in our exclusive economic zone (EEZ), China is imposing the old adage of “Might is right” (which is also called the “Rule of force”) that Great Britain forced on it as a consequence of the shameful Opium Wars and of the cruel Treaty of Nanking (and other “Unequal Treaties”) in the mid-1800s.

With lessons learned from these Opium Wars, I was hoping, even expecting, that the new, hi-tech, militarily revitalized and economically dominant China would be more sympathetic to our impoverished country that is similar in many ways to the mid-1800 Middle Kingdom, and would find a way to honor the 501-page, July 12, 2016 Arbitral Award (AA).

Needless to say, the AA expressly recognized our exclusive right to fish, and to exploit and develop the natural resources of the WPS granted by the United Nations Convention on the Law of the Sea (Unclos), to which China is a signatory and is therefore legally bound to obey, if the new and better adage of “Right is might” (which is another name for the “Rule of law”) were to reign.

It seems that China had not learned those lessons and has, in fact, replaced Great Britain as the new bully in Asia. It forcefully asserts its claim of ownership and sovereignty on over 80 percent of the entire length and breadth of the South China Sea (SCS) and expediently ignores the express provisions of Unclos.

And yet, it could not similarly swarm and shoo away the navies and air forces of the United States, Australia, France, and Great Britain which conduct freedom of navigation passages and overflights over the same WPS and EEZ, simply because these powerful countries assert the same mantra of “Might is right” as well as the AA that overturned China’s “nine-dash line” and proclaimed freedom of navigation in the SCS.

A little ironic indeed, because these powerful countries were not parties in the arbitral proceedings and, strictly speaking, are not bound by the AA. In fact, the United States is not even a signatory to Unclos. Yet, they are invoking some parts thereof that are favorable to their national interest. I wish they would enforce the entire AA to show their consistent adherence to “Right is might.”

We, of course, have been advised that China does not recognize the AA and maintains that the arbitral tribunal had no jurisdiction allegedly because the conflict involved land ownership and sovereignty. Thus, it steadfastly refused to participate in the arbitral proceedings. It asserts that only the International Court of Justice (ICJ), the official judicial organ of the United Nations, has jurisdiction over the controversy.

To be clear, the AA upheld our sovereign rights (not sovereignty) over the WPS measured 200 nautical miles (NM) or about 370 kilometers outward from our shores. This area is referred to as the EEZ of coastal states. Unclos granted these states the exclusive rights to develop and exploit mineral deposits, oil, and other natural resources, including fish, corrals, and other sea life therein.

The Philippines did not ask for, and the AA did not grant, any rights over land areas in the SCS, including those reclaimed by China where it built military bases, missile silos, airports, and buildings. Our claim was and is limited to the marine resources in the WPS.

To show it follows the rule of law as the new and better adage, China claims that its ownership and sovereignty over the SCS and its marine features are proven by the discovery and occupancy thereof by its navigators and seafarers since time immemorial, a claim rejected by the AA.

Au contraire, Philippine experts, like Justice Antonio T. Carpio and Prof. Jay Batongbacal, maintain that our ownership is proven by ancient maps, especially the 1734 Murillo-Velarde map, showing that the territory of the Philippines included the Spratlys and Scarborough, which under the 1898 Treaty of Paris and the 1900 Treaty of Washington were ceded by Spain to the United States that in turn ceded them to us. (See J Carpio, Opinion, 04/15/21)

If, indeed, we have a strong case to invoke ownership and sovereignty over the land features in the WPS, our government can now take steps to accept the challenge of China to have this dispute settled by the ICJ. Under the ICJ Charter, only states, not private individuals or organizations, may file such suits.

“Might is right” vs “Right is might”. Which will prevail?

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TAGS: AA, China, EEZ, Exclusive Economic Zone, Philippines, south China Sea, UNCLOS, West philippine Sea, WPS

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