Day: July 12, 2021

On the fifth anniversary of the Permanent Court of Arbitration’s ruling, the lawyer who advised the Philippine government against China’s excessive claims in the South China Sea suggests there should be renewed international efforts and a “new legal case.” But countries in the region are treading carefully.

“It was a beautiful summer day in The Hague,” recalls Jonathan London, a Leiden University scholar who has been watching South China Sea issues for over a decade.

“But it was also surreal, because there was an important judgment to be handed down relating to a conflict on the other side of the world.”

After three years, an arbitration case brought by the Philippines against China under the United Nations Convention on the Law of the Sea (UNCLOS) was about to end with a ruling that could have a major effect on the increasingly heated dispute across one of the world’s most important trade routes. Known as PCA Case No. 2013-19, it marked the first time any nation had challenged China over its maritime sovereignty, an action pitting a Southeast Asian U.S. ally against a rising superpower.

Outside the palatial building of the Permanent Court of Arbitration in the stately Dutch city, small crowds started gathering in the morning. First a group of Filipinos waving placards and chanting, “China out of Philippine waters,” then some journalists and TV crews. “This all changed after about an hour, when a large tour bus pulled up. Several dozen middle-aged and elderly mainland Chinese stepped out and began chanting loudly too,” explains London, who was at the site.

Across the Atlantic in Washington, D.C., Paul Reichler — a partner at the law firm Foley Hoag and the lead counsel for the Philippines — arrived in his office at 4:45 a.m. only to find his team had already gathered in anticipation. The arbitral ruling was due to arrive by email, half an hour before it was announced to the public.

And then came the exhilarating moments when the legal team read through the pages of the decision.

“It was extremely exciting to run through the details: What have they decided on that? And that? Oh my God, have we won that too?” Reichler laughs. “It was too early in the morning to pop the champagne though.”

Historic ruling

On that day, July 12, 2016, the arbitral tribunal ruled in favor of the Philippines on most of its submissions and rejected China’s claim of historic rights to vast areas in the South China Sea using the so-called “nine-dash line” that stretches deep into maritime Southeast Asia.

China, Vietnam, the Philippines, Taiwan, Malaysia and Brunei all have competing claims over the area thought to be rich in natural resources. The South China Sea is also a major shipping route that carries one third of global maritime trade.

Philippines vs China – The rulings:
* China had violated the Philippines’ sovereign rights by operating in the latter’s exclusive economic zone and continental shelf.
* China’s land-reclamation activities in the South China Sea had caused “severe harm to the coral reef environment.”
* All of the high-tide features in the Spratly Islands are legally “rocks” that do not generate an exclusive economic zone or continental shelf. The Spratly Islands cannot generate maritime zones collectively as a unit.
* There was no legal basis for China to claim historic rights to resources within the sea areas falling within the ‘nine-dash line’.

“While I had anticipated the ruling, I was still struck by its gravity. An international court has categorically and comprehensively rejected as illegitimate the claims of a major power,” London said. “The principle underlying the case was simple: the historical record offers virtually zero support for Beijing’s claims.”

“The victory exceeded our expectation,” agreed Marites Vitug, a leading Filipino journalist and author of “Rock Solid: How the Philippines Won Its Maritime Case Against China.”

“We only hoped to win on the single issue of the nine-dash line but we won on most of the issues. A group of activists took to the streets in Manila to celebrate with flowers and balloons. There was also a rally in front of the Chinese Embassy.”

“But our mood was somehow dampened by the reaction from the secretary of foreign affairs [Perfecto Yasay Jr]. He gave a very short statement, he didn’t even smile but looked really sad, like he was attending a funeral!” said Vitug.

Many think that President Rodrigo Duterte, who took office less than two weeks before the arbitration award, preferred a ‘soft landing’ approach, seeking to appease China with a quiet, restrained response instead of exuberant celebrations. The case had been submitted in 2013 under the administration of Duterte’s predecessor, and Duterte was seeking a less acrimonious relationship with Beijing.

Secretary Yasay was not the only one who was not cheerful after hearing the tribunal’s decision.

“The Chinese mainlanders [outside the arbitration court] were muted, quietly filed back onto their bus and disappeared,” London recalled.

China’s reaction

China quickly rejected the ruling. Chinese Foreign Minister Wang Yi said on the day that the Chinese people “will not accept the result.”

From the beginning, Beijing announced that it would not accept nor participate in the arbitration. In a 2014 position paper, China argued that the dispute between China and the Philippines, as well as other countries in the region, was not subject to arbitration because it was ultimately a matter of sovereignty which was outside the tribunal’s jurisdiction.

Chinese legal experts insisted that the case initiated by the Philippines was “null and void.” Up to the present day, there’s a noted reluctance across Chinese academia to discuss the arbitration in any depth.

Last year, in remarks at the Munich Security Forum, President of the National Institute for South China Sea Studies Wu Shicun stated that, “China and the Philippines have reached consensus on shelving the decision of the South China Sea arbitration since the second half of 2016.”

Duterte, who is expected to leave office in 2022, is believed to have sought to deal with Beijing unilaterally in the hope of securing China’s support and investment.

Chinese expert Wu, however, recognized that there are people in the Philippines who “keep pressuring the Duterte government on handling the disputes with China in line with the ruling.” He warned that the “legal debate over the South China Sea will be intensified again.”

The 2016 ruling has not stopped China from stepping up deployments of its coastguard, fishing fleets and navy in the South China Sea, including from its military bases in the Spratly Islands.

In January this year, Beijing adopted a Coast Guard Law that provoked much concern and criticism from China’s neighbors.

Most recently in March, hundreds of Chinese fishing boats encroached on Whitsun Reef inside the Philippines’ exclusive economic zone.

Effective legal tool

However, in the longer term, attorney Paul Reichler, from Foley Hoag, argues that the arbitration award provides an authoritative determination of the law, “particularly of the legal obligations and rights for China and the Philippines.”

“The legal regime of the South China Sea has been established,” he said.

“The Philippines, by deciding to approach China unilaterally rather than multilaterally, let the gas out of the tires. But it doesn’t change the fact that the vehicle is there, the engine is working, you only need to put on new tires for it to run again.”

“There are hopes that following the award there’d be a coalition of countries which share the same interest and commitment in upholding the rule of law in the South China Sea. It can still happen,” Reichler said.

He suggested that part of the multilateral approach “should include a new case brought by a group of states to reinforce the 2016 award and apply it in a broader context beyond that of just between China and the Philippines.”

Another main claimant in the South China Sea — Vietnam — does not rule out the possibility of submitting its dispute with China to international court or arbitration.

In 2014, Hanoi filed a statement supporting the Philippines in bringing China to the international tribunal, at the same time rejecting China’s claims and reiterating its own claims in the South China Sea.

“Vietnam and other countries should uphold the outcomes of the 2016 award in order to resolve problems in accordance to international law,” said Pham Quang Vinh, former Vietnamese ambassador to the United States.

“We have a case ready but how to proceed depends on the circumstances.”

Another former senior Vietnamese diplomat, who has been studying the issue, is skeptical.

“Unless there is a major shift in the region, caused by China’s violations, there won’t be any legal case. Hanoi is inclined to pursue a policy of non-aggression and is very keen to maintain the status quo [in the South China Sea].”

He also warns that it will be difficult to rally support within the region for a joint legal proceeding, not least because most countries don’t want to antagonize China.

Malaysia, another claimant in the South China Sea, issued a weak 200-word statement on the arbitration award despite the fact that the ruling against China’s nine-dash line effectively benefits Malaysia in its maritime arguments.

“The situation in South China Sea is very fluid and dynamic,” explained Jalila Binti Abdul Jalil from the Centre for Ocean Law and Policy at the Maritime Institute of Malaysia.

“The ruling has enriched jurisprudence on issues concerning South China Sea. But stability is a different gamut and jurisprudence is just one of the angles,” she said.

However, Malaysia did, at the end of 2019, make a new submission of an extended continental shelf claim to the United Nations — a move that might have been encouraged by the 2016 tribunal findings.

Similarly, in 2020 its neighbor Indonesia submitted a note verbale to the U.N. secretary-general challenging China’s maritime claims.

“The quest for a rules-based order in the Western Pacific and globally has gained increased urgency with China’s expansionist posture and aggressive conduct, especially in the Western Pacific, but in other world regions too,” London said.

“Whether Vietnam, or any other country, is prepared to pursue legal proceedings is unclear. What is clear, is that there would be strong international support for such a case.”

“For decades, the U.S. did a disservice to the world by voting against the international law of the sea as part of efforts to protect U.S. interests and dominance. Now it is in the United States’ interest, and that of the world, to insist on agreement to and enforcement of a rules-based order governing the seas,” he said.

Radio Free Asia –Copyright © 1998-2016, RFA. Used with the permission of Radio Free Asia, 2025 M St. NW, Suite 300, Washington DC 20036Radio Free Europe–Copyright (c) 2015. RFE/RL, Inc. Reprinted with the permission of Radio Free Europe/Radio Liberty, 1201 Connecticut Ave NW, Ste 400, Washington DC 20036.

MORNING

The Human Rights Council this morning held its annual thematic panel discussion on technical assistance and capacity building with a focus on technical cooperation to advance the right to education and ensure inclusive and equitable quality education and lifelong learning for all.

Mahamane Cissé-Gouro, Officer-in-Charge of the Field Operations and Technical Cooperation Division of the Office of the United Nations High Commissioner for Human Rights, stated that education was not only a fundamental human right in itself: it also enabled access to all other human rights. Investing in education was the most cost-effective way towards recovery from the COVID-19 pandemic. The pandemic had had a profound impact on the right to education across the world, creating the largest disruption of education systems in history. Nearly 1.6 billion learners in more than 190 countries had been affected by the pandemic, but some had been affected more than others.

Rongvudhi Virabutr, Deputy Permanent Representative of Thailand to the United Nations Office at Geneva, said the COVID-19 pandemic had disrupted education, including school closures and exacerbating the digital divide, and it had had a disproportionate effect on girls and already vulnerable populations. Today the panel would discuss how governments, United Nations agencies and partners were working to address the impact of the pandemic.

A video was played providing testimony of children to show how the pandemic had impacted their daily life.

Esi Sutherland Addy, Former Minister of Education and Culture of Ghana and former Chair of the Board of Trustees of the Voluntary Fund for Technical Cooperation in the Field of Human Rights, said that the COVID-19 pandemic threatened to reverse 30 years of work on education. Meeting the Sustainable Development Goal 4 demanded a sustained commitment to partnerships and the pandemic had given cause to re-examine the state of partnerships as much between governments and their people as between the global north and south.

Stefania Giannini, Assistant Director-General for Education, United Nations Educational, Scientific and Cultural Organization, stated that the focus on the right to education was welcomed. Today, however, the achievement of this right was under threat. Unless measures were taken, 12 million primary school children would never set foot in school. The COVID-19 pandemic had amplified pre-existing inequalities, making this situation worse. Over 1.5 billion learners had been affected at the peak of the crisis, and over a third of these students could not access remote learning solutions. The United Nations Educational, Scientific and Cultural Organization was working on a declaration on connectivity and education to stress the need to centre the most marginalised, and to transform pedagogies.

Fahad Al-Sulaiti, Chief Executive Officer, Education Above All, stated that technical cooperation and capacity building through higher education could play a role in the recovery and capacity building of post-conflict countries. Without proper support and assistance, higher education instituted in a post-conflict society could not supply the skills and knowledge required for a secure and sustainable social economic recovery. Early primary education and secondary education were critical to any society as well.

In the ensuring discussion, speakers noted that investment in education was the least costly way to ensure economic development, prevent conflicts and maintain peace. School closures had disrupted learning worldwide with more than 90 per cent of all learners impacted at the peak of the crisis. Millions of girls worldwide were at risk of dropping out of school. The enhancement of international cooperation was instrumental for the implementation of the 2030 Agenda, including Sustainable Development Goal 4, and the Office of the High Commissioner had to continue providing technical assistance and capacity building to States.

Speaking were Bahrain on behalf of the Gulf Cooperation Council, Finland on behalf of a group of countries, Brunei Darussalam on behalf of the Association of Southeast Asian Nations, Azerbaijan on behalf of the Non-Aligned Movement, Cameroon on behalf of the Group of African States, Bahamas on behalf of a group of countries, European Union, Egypt on behalf of the Group of Arab States, Venezuela, Sierra Leone, Costa Rica, Cabo Verde on behalf of the Community of Portuguese-speaking Countries, Indonesia, Togo, India, Georgia, Philippines, Cambodia, International Organization of la Francophonie, Vanuatu, Colombia, Libya, Saudi Arabia, and Pakistan.

The following civil society organizations also took the floor: Save the Children International, and The International Organisation for LDCs.

The webcast of the Human Rights Council meetings can be found here. All meeting summaries can be found here. Documents and reports related to the Human Rights Council’s forty-seventh regular session can be found here.

The Council will next meet at 11 a.m. to hold an interactive dialogue with the High Commissioner for Human Rights on systemic racism and violations of international human rights law against Africans and people of African descent by law enforcement agencies, especially those incidents that resulted in the death of George Floyd and other Africans and people of African descent. This will be followed by the presentation of the High Commissioner’s oral update on the human rights situation in Georgia under agenda item 10 on technical assistance and capacity building.

Opening Remarks by the President of the Council

NAZHAT SHAMEEM KHAN, President of the Human Rights Council, explained the proposed modalities for the in-person voting process for the forty-seventh session, which were then agreed on by the Council.

Annual Thematic Panel Discussion on Technical Cooperation and Capacity Building

Keynote Statement

MAHAMANE CISSÉ-GOURO, Officer-in-Charge of the Field Operations and Technical Cooperation Division of the Office of the United Nations High Commissioner for Human Rights, stated that education was not only a fundamental human right in itself: it also enabled access to all other human rights. Investing in education was the most cost-effective way towards recovery from the COVID-19 pandemic. The pandemic had had a profound impact on the right to education across the world, creating the largest disruption of education systems in history. Nearly 1.6 billion learners in more than 190 countries had been affected by the pandemic, but some had been affected more than others. School closures made girls and young women more vulnerable to child marriage, early pregnancy, and gender-based violence – all of which decreased their likelihood of continuing their education. The Call to Action for Human Rights, launched by the Secretary-General in February 2020, placed human rights at the centre of sustainable development and set up an ambitious agenda for all parts of the United Nations system.

The Secretary-General had also outlined the need for a New Social Contract, underpinned by a New Global Deal of Solidarity. The background report prepared for this panel highlighted many actions taken by the Office, the United Nations system and its partners to support the efforts of States in promoting and protecting the right to education, including in the context of the pandemic, such as: the Human Rights Office of the United Nations Assistance Mission for Iraq documented the impact of conflict on education; in Mozambique, the United Nations Educational, Scientific and Cultural Organization provided technical assistance for the strengthening of the education system; in the Democratic Republic of the Congo, the Office supported a civil society platform to monitor and assess the commitment by the Government to provide free universal primary education; in the Republic of Moldova, the Office conducted an assessment of the human rights situation of Roma people in the Transnistria region; and in Guatemala and Cambodia, the Office worked with youth-led organizations to create space for dialogue and awareness raising.

Statements by the Moderator and Panellists

RONGVUDHI VIRABUTR, Deputy Permanent Representative of Thailand to the United Nations Office at Geneva, said that the idea of the discussion was to advance the right to education and ensure inclusive and quality education pursuant to the Council’s resolution. The COVID-19 pandemic had disrupted education, including school closures and exacerbating the digital divide, and it had had a disproportionate effect on girls and already vulnerable populations. Today, during the panel, they would discuss how governments, United Nations agencies and partners were working to address the impact of the pandemic. A video would be played that provided the testimony of children to show how the pandemic had impacted their daily life. The policymakers were invited to hear the voices of youth.

The video was played.

ESI SUTHERLAND ADDY, Former Minister of Education and Culture of Ghana and former Chair of the Board of Trustees of the Voluntary Fund for Technical Cooperation in the Field of Human Rights, said that during her tenure, the Office of the High Commissioner had advanced strategies aimed at entrenching education as a basic human rights. In the matter of education, issues of gender parity, access and performance had been recognised and led to innovative interventions. Policy making in education did not escape the gender lens. The COVID-19 pandemic threatened to reverse 30 years of work. In the African continent, World Vision International estimated that over a million adolescent girls might have been blocked from returning to school due to pregnancy during school closures. As for technology development, Ms. Addy said that the dividends of the exponential growth in mobile telephony in the global south had to be adapted for learning. Learning platforms in Nigeria and Tanzania were good examples. Meeting the Sustainable Development Goal 4 demanded a sustained commitment to partnerships and the pandemic had given cause to re-examine the state of partnerships as much between governments and their people as between the global north and south.

STEFANIA GIANNINI, Assistant Director-General for Education, United Nations Educational, Scientific and Cultural Organization, stated that the focus on the right to education was welcomed. Today, however, the achievement of this right was under threat. Unless measures were taken, 12 million primary school children would never set foot in school. The COVID-19 pandemic had amplified pre-existing inequalities, making this situation worse. Over 1.5 billion learners had been affected at the peak of the crisis, and over a third of these students could not access remote learning solutions. How to get back on track? Monitoring the right to education was key. The United Nations Educational, Scientific and Cultural Organization was working on a declaration on connectivity and education to stress the need to centre the most marginalised, and to transform pedagogies. Putting education at the top of public policies was crucial, as multilateral cooperation was needed more than ever. Adequate financing was critical, as education received less than one per cent of stimulus packages worldwide, and budgets were decreasing – they had to be protected.

FAHAD AL-SULAITI, Chief Executive Officer, Education Above All, stated that technical cooperation and capacity building through higher education could play a role in the recovery and capacity building of post-conflict countries. Without proper support and assistance, higher education instituted in a post-conflict society could not supply the skills and knowledge required for a secure and sustainable social economic recovery. Early primary education and secondary education were critical to any society as well. The international community should work with governments and non-governmental organizations to support local capacity building to jump start higher education to ensure that any lost capacity was quickly recovered. In realising the right to education, States should protect the education system, including ensuring availability, accessibility, accountability and adaptability of education on a non-discriminatory basis. Countries would succeed only if they would all come together, as key stakeholders, to unite and protect all aspects of education, and strengthen monitoring to better inform decision makers to adopt a rights-based, inclusive approach to their legal and policy frameworks.

Discussion

Speakers noted that investment in education was the least costly way to ensure economic development, prevent conflicts and maintain peace. Education was essential in enabling rights-holders to demand respect for their human rights and for the achievement of the 2030 Agenda with human rights at the core. School closures had disrupted learning worldwide with more than 90 per cent of all learners impacted at the peak of the crisis. Millions of girls worldwide were at risk of dropping out of school. How could countries best leverage the potential of new technologies in ensuring quality education for all? The enhancement of international cooperation was instrumental for the implementation of the 2030 Agenda, including Sustainable Development Goal 4, and the Office of the High Commissioner had to continue providing technical assistance and capacity building to States. Today, 258 million children were not going to school and 773 million adults were illiterate. Countries without supportive and well-resourced environments were especially affected and lack of sufficient digital capabilities had exacerbated the digital divide between students.

Speakers noted that education was not merely a fundamental human right in itself but allowed the attainment of other rights. Technical cooperation support to States must take into account the social and cultural realities of those States, reflect national development objectives, and be transparent. Technical assistance and capacity building must be pursued only in consultation and consent with the concerned State, prioritising the implementation of those Universal Periodic Review recommendations that the State had accepted. Speakers noted that some terrorist organizations used inclusive education as a banner issue for soliciting funding support from unsuspecting international donors. Guaranteeing access to education to children suffering from a lack of Internet access was a significant challenge to some developing countries during the pandemic. Girls faced intersectional discrimination even before the pandemic, but up to 11 million girls may never return to schools as a result of COVID-19 measures – States had a responsibility to take specific measures to support the most marginalised children, especially girls, by removing financial barriers, including through cash transfers.

Closing Remarks

RONGVUDHI VIRABUTR, Deputy Permanent Representative of Thailand to the United Nations Office at Geneva, said valuable comments were heard from the floor. As highlighted, technical cooperation was the key to address the right to education.

ESI SUTHERLAND ADDY, Former Minister of Education and Culture of Ghana and former Chair of the Board of Trustees of the Voluntary Fund for Technical Cooperation in the Field of Human Rights, directed participants to the documents of the Office of the High Commissioner to see efforts they were doing to promote education and how they were providing technical assistances. The issue of girls’ education was highlighted by many participants and many interventions in this regard had been developed by multilateral organizations as well as regional ones. These interventions could be upgraded and scaled up, so there was no need to reinvent the wheel. The role of higher education was underscored, and as emphasised by youth in the video, pedagogic materials had to be improved. Research and development in higher education should be promoted. It was important that youth provided their input and young people had to be consulted because this transformation required the full participation of youth. Technical cooperation in tracking innovative interventions was needed. Supporting education transformation required resilience and long-term support. The provision of budgets nationally and multilaterally should be a priority.

RONGVUDHI VIRABUTR, Deputy Permanent Representative of Thailand to the United Nations Office at Geneva, said this was the first time that the right to education was drastically challenged by a pandemic. The digital divide had to be closed and innovations had to be developed to support education. Resources directed towards education should be amplified. There was still a lot of work to do to ensure lifelong learning for all and education to all and the Council’s determination was a key factor for success.

Source: UN Human Rights Council