The Philippines should deploy other international law measures against China

As China continues to push its weight around the Pacific, the Philippines needs to expand its options on how to effectively engage with its neighboring bully and protect its own sovereignty.

Clearly, the possibility of the Philippines being part of the UN Security Council will be of much help — it can provide the necessary platform with which to more profoundly communicate its “transparency policy” and thus shed more light on China’s rather inappropriate actions.

However, the Security Council can only go so far, considering that China itself is a “permanent” member of the Council and thus has the ability to exercise veto powers. Nevertheless, there is the UN General Assembly which, in times when the Security Council has been rendered ineffectual, can actually declare measures that deal with international peace and security.

Thus, in coordination with our security allies, the Philippines can raise the issue of China’s aggression in the West Philippine Sea before the UN General Assembly, as provided for under the “Uniting for Peace General Assembly resolution 377 (V).”

This could include asking for a binding security resolution, a.) demanding China stop its aggression in the West Philippine Sea, b.) abide by the Arbitral ruling, and, c.) demand that, in case China violates a.) and b.), that UN members take all necessary measures to compel China to comply with said resolutions.

Another method would be to file cases under the United Nations Convention on the Law of the Sea (UNCLOS) for violation of environmental law. In this regard, the International Tribunal for the Law of the Sea (ITLOS) can accept cases for “all disputes and all applications submitted to it in accordance with the Convention. It also includes all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal (Statute, article 21). The Tribunal has jurisdiction to deal with disputes (contentious jurisdiction) and legal questions (advisory jurisdiction) submitted to it.” “Contentious jurisdiction” refers to “disputes concerning the interpretation or application of the Convention, subject to the provisions of article 297 and to the declarations made in accordance with article 298 of the Convention.”

Specifically, this refers to “jurisdiction over any dispute which is submitted to it in accordance with Part XV of the Convention concerning the interpretation or application of the Convention (Convention, article 288, paragraph 1; Statute, article 21) and the Agreement relating to the Implementation of Part XI of the Convention.” Parties may, however, refer by agreement a dispute that falls under Articles 297 and 298 of the UNCLOS. Most significantly, under Article 288, paragraph 2, of the UNCLOS, the ITLOS has jurisdiction over any dispute concerning the interpretation or application of an international agreement related to the UNCLOS.

As for the World Trade Organization (WTO), aside from trade related cases involving damage to the environment, it should be emphasized that the Philippines to date is suffering from a nearly $2.5 billion (or nearly P145 billion) trade deficit with China this year (in 2022, it was for a total of $38.3 billion or P214.5 billion). There should at least be reasonable measures taken to ensure that the Philippines is not losing out as far as WTO rules are concerned.

In this case, the Philippines has access to the WTO Dispute Settlement Understanding, which allows the Philippines to initiate a case if it considers that any benefit accruing to it directly or indirectly under the WTO agreements are being “nullified or impaired or that the attainment of any objective [thereof] is being impeded as the result of (a) the failure of another contracting party to carry out its obligations under th[e WTO agreements], or (b) the application by another contracting party of any measure, whether or not it conflicts with the provisions of th[e WTO agreements], or (c) the existence of any other situation.”

After the panel process, a party should be able to appeal to the Appellate Body, which unfortunately has so far been inoperative since December 2019. Due to substantial disagreements over past rulings, the United States has resorted to blocking new appointments to the Appellate Body, leaving the latter unable to hear appeals. This has left previous panel rulings that have been appealed without a final binding ruling. However, there is no reason why panel cases cannot be studied, even initiated, by the Philippines if warranted.

Furthermore, there is the dispute settlement proceedings that can be studied under the provisions of the ASEAN-China Free Trade Area (ACFTA), a free-trade area between the 10 member states of ASEAN and China. Embodied in the provisions of the ACFTA Agreement on Dispute Settlement Mechanism of the Framework Agreement on Comprehensive Economic Co-Operation, such allows the Philippines to initiate cases for arbitration regarding any measure affecting the observance of the Framework Agreement (or its Annexes) taken by central, regional, or local governments of another party.

International law allows the Philippines to undertake proportionate retaliatory action and countermeasures.

Finally, there is that one other recourse for our country but it’s something hopefully that need not be taken.

Jemy Gatdula is the dean of UA&P Law, as well as a Philippine Judicial Academy law lecturer for constitutional philosophy and jurisprudence.