Has the Philippines blown its South China Sea win?

Xuan Loc Doan November 2, 2016 10:06 PM (UTC+8)
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In going to Beijing for a four-day trip last month, which was depicted by some Filipinos as a tributary mission by a Philippine sultan to a Chinese emperor rather than a state visit by a sovereign leader, President Rodrigo Duterte presented to China two precious — if not priceless — “gifts.”

The first was his decision to militarily and economically “separate” from America and to align himself with China’s “ideological flow,” on which he “will be dependent … for  a long time.” He solemnly made such an announcement at a forum in China’s Great Hall of the People attended by its Vice Premier Zhang Gaoli.

Though he toned down his remarks upon his return to the Philippines, Duterte’s pivot away from Washington toward Beijing is bona fide. For China, his about-face was a valuable gift because, until recently, the Philippines was America’s closest ally in Southeast Asia. Manila was also a central part in Washington’s Asia pivot strategy, which has been aimed at constraining or containing China’s regional hegemonic ambitions.

His about-turn, seen as the most significant shift of geopolitical power in the Asia-Pacific region since the end of the Cold War, would hugely weaken America’s regional influence and immensely enhance China’s.

The second, and probably more precious, gift was the Philippine president’s willingness to play down the landmark South China Sea arbitration case against China his country resoundingly won in July and to resolve the Philippines’ maritime disputes with China through bilateral talks.

By adopting such a posture, he apparently kowtowed to China and acted as if his country had lost — and China had won — the international arbitration case.

Adoption of China’s maritime position

China has long and strongly claimed that the South China Sea disputes can only be resolved by negotiations. This led to its refusal to participate in the arbitration case submitted to an arbitral tribunal formed under the auspices of the United Nations Convention on the Law of the Sea (UNCLOS) in January 2013 by the administration of Benigno Aquino III, Mr. Duterte’s predecessor.

China’s vehement objection to the arbitration was also based on an argument that the two countries had agreed, through bilateral instruments and the 2002 China-ASEAN Declaration on the Conduct of Parties in the South China Sea, to settle their relevant disputes through negotiations. This is a key reason why it contended that the arbitration case was illegal.

Yet, in its award on jurisdiction and admissibility in October 2015, the five-judge arbitral tribunal in The Hague rejected China’s position and decided to consider the merits of the case.

In July 2016, despite China’s preemptive opposition and concerted international efforts — including seeking support from small, landlocked faraway African countries — the tribunal unanimously ruled in the Philippines’ favor on almost all of its fifteen submissions.

Among the tribunal’s key findings were that “China had violated the Philippines’ sovereign rights in its exclusive economic zone by (a) interfering with Philippine fishing and petroleum exploration, (b) constructing artificial islands and (c) failing to prevent Chinese fishermen from fishing in the zone” and “that Chinese law enforcement vessels had unlawfully created a serious risk of collision when they physically obstructed Philippine vessels.”

However, instead of celebrating — or at least positively welcoming — his country’s hard-fought victory, the administration of Duterte, who took office in June, called “on all those concerned to exercise restraint and sobriety.” Hardly ever does a winning party in such a significant legal dispute welcome such a historic ruling with such a restrained caution.

It is thus not surprising that during his visit to Beijing, where he was given the VIP treatment by Chinese leadership, Duterte agreed to put aside the South China Sea ruling and open direct negotiations with China.

His government’s rationale for such a posture may be that, as Duterte himself stated, “China is now in power; and they have military superiority in the region” and that, as his Foreign Secretary conceded, “the arbitration tribunal’s decision has no enforcement capability or mechanisms on its own.”

In a way, it is true that China is now the region’s most powerful country and that the tribunal’s ruling is nonenforceable because like any international court, it does not have an army or a police force.

Yet such an admission is unwise, if not dangerous, because it vindicates the view that the rule of law in international relations does not apply to great powers and that “might makes right” in international politics.

In fact, under Aquino’s leadership, the Philippines rejected that “backward” view.

In convincing the arbitral tribunal to consider the case, the Philippines’ then-Foreign Secretary Albert del Rosario stated that his country turned to the “arbitration to provide all parties a durable, rules-based solution” because it believed that international law has “equalizing power” that allows countries, such as the Philippines, “to stand on an equal footing with wealthier, more powerful states.”

More concretely, it firmly convinced that UNCLOS has “dispute resolution provisions 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.”

Such a strong conviction is the fundamental reason why the Philippines’s Aquino could legally compete with and triumph over the latter in the South China Sea despite being unable to challenge China militarily.

There are other striking reasons why the Aquino administration had helped the Philippines win the arbitration case against China whereas the Duterte government has now done the opposite.

In arguing — and seeking international support — for his country’s cause, Albert del Rosario said the arbitration case “is of the utmost importance to the Philippines, to the region, and to the world.”

In contrast, on the sidelines of the meeting of ASEAN Foreign Ministers in Laos in July, his successor Perfecto Yasay Jr contracted it, stating the case “concerns China and the Philippines alone.”

President Duterte himself also made it clear that, “This is a purely bilateral issue. It’s between the Philippines and China, I’m not going to raise it in any international forum, including the ASEAN.”

This stance must have delighted China because it has forcibly opposed any third-party involvement in the maritime disputes. It can also now clarify why the ruling has been excluded from ASEAN meetings and other relevant international forums.

Disrespect for international bodies?

Moreover, during the hearings of the arbitration case, the Philippines’ former top diplomat underlined that the Philippines is “a founding member” of the UN and “an active participant in” this “great” and “indispensable institution” and that it “has long placed its faith in the rules and institutions that the international community has created to regulate relations among States.”

Del Rosario also pointed out the Philippines was proud of the fact that it signed UNCLOS on the day it was opened for signature in 1982 and “has respected and implemented its rights and obligations under the Convention in good faith.”

However, such a high respect for the UN and its subordinate institutions and rules has notably waned under Duterte’s rule.

By stubbornly pursuing a bloody anti-drug campaign, which has resulted in extrajudicial killings, and by insulting and threatening to leave the international organization in response to the UN’s criticism of his war on drugs, the maverick president is very mistrustful and disrespectful of the UN and its bodies, e.g. human rights law and commission.

Whether the extent of his anti-drug war as well as the manner of his response to the criticisms of the UN and other international organizations over his deadly war on drugs is justified is debatable.

Yet, it is clear that by denouncing the UN and its officials, bodies and rules, the Duterte government has degraded its credibility and authority. Consequently, albeit indirectly, it has devalued the significance of the South China Sea ruling. This is because, after all, though China may disagree, the arbitration case was legally considered by an arbitral tribunal formed under aegis of the UN Convention on the Law of the Sea.

What is more, by publicly and vulgarly insulting the US, the UN, the European Union (EU) and alienating other key countries and international organizations, the Duterte administration has greatly diminished international support for its South China Sea case.

By May and June 2016, the G-7 and the EU issued strongly-worded statements on the South China Sea issue. Though they did not directly name China, those declarations were seen as aimed at the latter. By then about 40 countries, including the 28 EU members, had publicly said that the arbitral award would be legally binding.

However, after the issuance of the ruling, only a handful of countries have publicly called for the verdict to be respected.

China’s economic weight and pressure is a key reason why several nations, notably the EU members, have restrained their posture. Yet, Duterte’s behavior has also significantly contributed to this lack of support. How can other countries and organizations back its case when the Philippines itself does not want to defend it or disregards the rule of law and international organizations, e.g. the UN?

Judging by Duterte’s many other outbursts, including his “three of us against the world” remark, it is obvious that he neither cares about international reputation nor needs international support. It seems, for him, his alliance with China and Russia is not the only “the only way” but also enough for his country to deal with its domestic and international issues and even to take on the whole world.

At the moment, his overt overture toward China has paid off — at least, economically. To reward him for his deferential, if not submissive, attitude, Beijing has pledged to provide the Philippines with mega economic-related deals and loans.

However, the price the archipelago nation has paid — or will pay — for his China pivot is also enormous. Besides economic and military separation from America, the Philippines’ long-standing and most important ally, which will likely negatively impact his country in the long-term, if it is materialized, he has made substantial maritime and territorial concessions.

With such lavish deals agreed with China, coupled with Beijing’s claim of its inherent and indisputable sovereignty over most of the South China Sea, its opposition to the arbitration case and Duterte’s alienation of the Philippines’ key international partners and allies, the prospect that China will comply fully or even partly with the ruling has become unthinkable.

Given this, it is unsurprising why some Filipinos have already raised concerns and questions, such as: “Did we lose the PCA arbitration case?

Mr. Duterte’s obsequious posture vis-à-vis China and his hitherto ambivalence toward, if not ignorance of, the South China Sea ruling would also potentially embolden Beijing’s maritime ambitions and dent any hope for a rules-based maritime order in the region.

Following the tribunal’s issuance of its long-awaited award, some international legal experts hailed the ruling, with one calling it a “game changer.” This is because the landmark verdict was seen as having “an impact on the development of a rules-based order for the oceans” and for the South China Sea in particular.

Unfortunately, judging by what has happened ever since, this is no longer the case.

Xuan Loc Doan
Dr. Xuan Loc Doan is a UK-based researcher. He holds a PhD in International Relations and researches and writes on a number of areas. These include Vietnam’s domestic and foreign policy, ASEAN, EU, UK’s politics and international politics in the Asia-Pacific region.
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