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Manila claims that this arbitration is a test case for the utility of international law itself. In a statement made before the Permanent Court of Arbitration, Philippine Foreign Secretary Albert del Rosario sought to answer the question of why the Philippines brought the case. Del Rosario argued that the case is important not only for the Philippines, but for “the rule of law in international relations” in general, particularly as pertains to the UN Convention on the Law of the Sea. It is the dispute resolution mechanisms provided for in UNCLOS, del Rosario said, “that allow the weak to challenge the powerful on an equal footing, confident in the conviction that principles trump power; that law triumphs over force; and that right prevails over might.” According to that argument, if the dispute resolution process – in this case, the resort to independent arbitration – fails, it is tantamount to a win for those who argue “might is right” in international relations.
It’s no wonder, then, that del Rosario’s statement invoked a constant refrain of China using “overwhelming force” in the South China Sea, which “the Philippines can only counter by invoking international law.” China’s stance and actions have become “progressively more aggressive and disconcerting,” del Rosario said, creating a “need for judicial intervention.” Del Rosario particularly noted China’s forcible expulsion of Filipino fisherman from the Scarborough Shoal in 2012 and land reclamation activities in 2014 and 2015.
From the Philippines’ perspective, then, this is more than a simple arbitration case. Manila paints the case a test for the question of “right vs might.” In other words, does international law truly “serve as the great equalizer among States,” as del Rosario put it? The Philippines portray this case as a litmus test for the feasibility of international law. “The case before you is … of utmost significance to the integrity of the Convention, and to the very fabric of the ‘legal order for the seas and oceans’ that the international community so painstakingly crafted over many years,” del Rosario concluded. “In the Philippines’ view, it is not just the Philippines’ claims against China that rest in your capable hands, Mr. President, it is the spirit of UNCLOS itself.”
As a sign of the importance Manila attaches to the case, some of its top officials – del Rosario, the secretary of justice, and the secretary of national defense, plus lawmakers and ambassadors – were present at the oral arguments. China, meanwhile, did not send any representatives to participate or observe in the hearing. China’s lack of participation is part of its strategy to try and deny the legitimacy of the arbitration case.
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