The timeless story of David and Goliath should resonate with the Philippines in its continuing row with China over territory teeming with natural resources, especially with regard to the Scarborough (Panatag) Shoal.
What the Philippines lacks in size and military power, it can certainly make up for with what could well be its strongest suit: the judicious use of international law, coupled with multi-lateral diplomatic initiatives. While it is true that the Philippines cannot win a shooting war with an emerging world military and economic power, neither can China establish sovereignty over disputed territory by force.
Since the establishment of the United Nations Charter after World War II, the use of force to settle disputes among states has been prohibited, subject only to the well-defined exceptions of individual and collective self-defense.
If, in the old, old days, territory may be acquired by military invasion, contemporary international law rejects a resort to aggression to enforce a territorial claim. China could well rain fire on hapless Philippine navy ships and occupy Panatag shoal for a hundred years; that will not mean however that it has already won the territory for itself. Its actions will have to be read according to the legal regime that governs the conduct of states in relation to other states: international law.
All that the Philippine has to do is raise a formal protest against the Chinese invasion to prevent the Chinese from acquiring territory by acquisitive prescription.
Chinese military posturing in the West Philippine Sea is no more than an illegitimate threat of the use of force by a regional bully who is utterly mistaken to think it can get away with it. Of course, standing up to such a bully requires spunk, style and daring. But it is the right thing to do.
In the biblical story, David β no more than a teenaged sheep herder β showed how thinking out of the box could win a war. King Saul, before sending him off to face the giant Philistine warrior, wanted to outfit David in his own armor. The shepherd however, found the King's armor too heavy for his own good.
To begin with, David knew next to nothing about sword-fighting. But he was not exactly harmless or unskilled. It was not that he was not a warrior like his nemesis. Goliath, blinded by his own arrogance, saw David to be no more than a shepherd boy who was no match to his size, power and experience in battle. But David was a warrior in his own right.
Out in the fields, he had fought with wild animals to protect his father's sheep, and had become a master in the fine art of the slingshot.
He was not trained in sword-fighting but he could hurl a stone at a distant target with deadly accuracy. In sword-fighting he could not ever hope to win against his giant of an enemy. But he could fight Goliath in his own terms β in ways unfamiliar to the Philistine warrior. In territory where Goliath has no clear domination, David had a fighting chance. In such territory, he could exploit Goliath's arrogance to his advantage. And exploit it he did, with deadly effect.
Kids who grew up in Sunday School like I did know the story by heart: dressed in his shepherd's simple tunic, and armed with no more than a shepherd's staff, slingshot and a pouch full of stones, he was a laughable sight to Goliath. But David saw an opening on the giant's metal helmet and aimed for it. His aim was true. Goliath fell to the ground, a smooth stone sunk deep in his forehead.
Somehow we do have an idea of what the Chinese are thinking about their own nine-dash claim to the entirely of the West Philippine Sea, including the Scarborough shoal: it's as ridiculous as the sight of Goliath falling face down like a log, forehead bloodied by a smooth stone from a shepherd boy's slingshot.
China knows it won't stand a chance if taken to a third-party review body like the International Tribunal on the Law of the Sea over the Philippines Exclusive Economic Zone (EEZ) claims over the shoal.
Under the EEZ, the Philippines has "sovereign rights" to the marine resources in the area, to the exclusion of all the others. Sovereign rights pertain to protective jurisdiction, and not to full sovereignty. However, the economic windfall that may arise from an area teeming with rich natural resources should be more than enough an incentive for the Philippines to assert such rights over the shoal.
As I've said in my previous column, the general principle in the Law of the Sea Convention (LOSC) which governs the EEZ regime is that any dispute over the interpretation or application of a provision of the treaty is subject to the system of compulsory binding dispute settlement. Thus, by becoming a party to it, State Parties consent to disputes being referred to adjudication or arbitration.
China is also party to the Law of the Sea Convention, except that on August 25, 2006, it invoked the so-called art. 298 exception, which allows it to opt out of compulsory arbitration in cases of disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service, and disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction as well as sea boundary delimitations, or those involving historic bays or titles.
However, China cannot say that by virtue of the article 298 exception, it cannot be dragged into arbitration because the events at Panatag shoal concerns a dispute on law enforcement activities related to the exercise of sovereign rights. This is because it has already conceded that the shoal falls within the Philippine EEZ and is well beyond its own EEZ.
Under art. 297 (3) of the LOSC, it is the coastal state, in this case, the Philippines, which has the option " to accept the submission to such settlement of any dispute relating to its sovereign rights with respect to the living resources in the exclusive economic zone or their exercise, including its discretionary powers for determining the allowable catch, its harvesting capacity, the allocation of surpluses to other States and the terms and conditions established in its conservation and management laws and regulations." That right does not belong to the offending state, China.
Indeed, in its declaration on June 7, 1996 β the date it ratified the LOSC β China announced that in accordance with the LOSC, "the People's Republic of China shall enjoy sovereign rights and jurisdiction over an Exclusive Economic Zone of 200 nautical miles and the continental shelf." Panatag shoal is physically beyond the scope of this declaration, and besides, China has already conceded that it lies within our own EEZ. Its art. 298 simply cannot be invoked in the case of Panatag shoal.
Which explains why China steadfastly refuses to arbitrate with us on those points of rock and reef. It refuses to resort to international law, fearing that it could be used by the Philippines like a slingshot against its interests, with deadly effect.
So it is reduced to bullying like a rich spoiled brat in school, picking on the smallest guy in class. And we know from the biblical story of David and Goliath that the smallest guy is not necessarily the most harmless creature there is.*
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