'China to use might, Philippines to use right'

Posted at 03/26/14 9:02 AM

MANILA – An expert on maritime affairs on Tuesday said the Philippine government's position in its arbitration case against China on the disputed West Philippine Sea is encapsulated by the battlecry "right versus might," which is what Manila is bringing to the international community in seeking support.

According to Dr. Jay Batongbacal of the University of the Philippines' Institute of Maritime Affairs and Law of the Sea, China is hoping for military might to determine who owns the disputed area.

"Their policy is 'bide our time, build our strength.' The Philippines, on the other hand, wants to see a better world that is not based on that kind of perception," Batongbacal told ANC Prime Time.

Batongbacal said Manila thinks it is right time to push for that principle and get the international community to support the country.

Lawyer Harry Roque, meanwhile, told ANC that the use of force will never result in a valid title.

Roque, director of the UP Law Center's Institute for International Legal Study, said that through the use of force, countries can take possession of other countries.

"But this possession can never ripen into a title because that is an expressed provision of international law -- that conquest will never ripen into title," he said.

Roque also said that this matter is "an emotional issue" for China.

"As far as the arbitration is concerned, they want it to stop because culturally, they’re offended. But regardless of the outcome on the issue of jurisdiction, China will maintain that it has title over the nine-dash lines," Roque said.

Asked about Manila's chances in arbitration, Batongbcal believes that the Philippines has a 50/50 chance.

"On the issue of jurisdiction, it could still go either way if you really look at specific cases," he said. "With respect to the merits, the tribunal has a tendency to try to find some kind of middle ground, and there are a few cases where you could clearly say one side has completely won and the other side has completely lost."

But Roque seems to think otherwise, saying there is even a 75-25 chance in favor of the Philippines.

"I think it is clear that on the issue of jurisdiction, the tribunal is satisfied it has jurisdiction if the controversy has to do with application and interpretation of specific provisions of UNCLOS, so I am more hopeful," he said.

He said if the country succeeds in the issue of jurisdiction and if the rules of UNCLOS are applied, the Philippines has a better than 50 percent chance of prevailing.

He is worried, however, on policy considerations.

"On the basis of rules, we have it, we can even say 75-25. But the problem is tribunals don’t always decide on the basis of rules. Sometimes they decide on the basis of policy and the policy is, which will strengthen the binding nature of UNCLOS," he said.

The Philippines is set to file its memorial with the International Tribunal for the Law of the Sea (ITLOS) on March 30, on its case against Beijing over the disputed West Philippine Sea.

China has rejected participating in the arbitration.