Moving Beyond the Jurisdiction Victory in the West Philippine Sea

The October 29 decision of the Permanent Court of Arbitration stating that it has jurisdiction over the case initiated by the Philippines against China was a landmark victory for the Philippines and a potential milestone for the international law of the sea. In a way, the decision gave some sense of vindication to the approach taken by the Aquino Administration in an attempt to put to rest the longstanding dispute over the West Philippine Sea (WPS). However, while the early partial jurisdiction decision was very much welcomed, it is still too early to predict how the tribunal would decide on the merits of the case and how long that process will take. In addition, the Tribunal maintained that jurisdiction over seven of the fifteen claims made by the Philippines would still be decided in conjunction with the merits and one claim has to be further narrowed down and clarified. For now, the jubilation from the partial jurisdiction triumph gave a respite to the painstaking sacrifices made in pursuit of this legal approach. But when the dust settles, with an eye on winning the decision over the merits, the Philippine leadership should begin preparing how to make good use of its legal ascendancy in dealing with China pre- or post-merit decision.

In doing so, the Philippines should bear in mind some key considerations: 1) it should not confuse the means with the ends; 2) it should observe the evolving regional environment and see how its actors, including fellow South China Sea claimants, respond to China’s behavior and; 3) it should take a page from the experience and practice of its neighbors, like Vietnam, in dealing with China.

Means are not ends

The work does not end with the tribunal’s decision as this body has no enforcement mechanism. Rather, the third party arbitration decision should be seen more as an enabler. A favorable judgment for the Philippines will undeniably confer on it higher ground in succeeding dialogues with China. A legal victory can help address the power asymmetry in the negotiation table between the two states that has long been the source of anxiety and uneasiness on the part of smaller states when discussing territorial and maritime disputes with a bigger neighbor (and this unbalanced power relations is also driving smaller states to engage extra-regional powers as a mitigating measure). International reputational costs may encourage China to be more accommodating to legitimate Philippine demands, particularly in relation to access over marine resources, security assurance, and ensuring freedom of navigation and overflight in the WPS. China may choose to behave like other hegemons counting on past precedents like the 1986 US vs Nicaragua International Court of Justice case to justify its recalcitrance – that big powers cannot be compelled into submission by the international legal system and they can get away with it. But doing so would run contrary to the peaceful rise mantra that it espouses. It will also run counter to China’s aspirations of cultivating harmonious relations with its neighbors, invite interference of other parties and contribute to regional instability which does not in any way work towards Beijing’s favor. Hence, with an appreciation of the aforementioned, whatever benefit the Philippines can obtain from the arbitration ruling should better be used as a leverage in negotiating with China.

No friends, just interests

The Philippine legal challenge against China had been likened to an epic battle between might vs right, Goliath vs David , the giant or major world power vs the underdog and even more interestingly between dark vs light, among others. But, in real life, international relations, its actors and their motivations are hardly black and white. Former French general, leader and statesman President Charles de Gaulle said that “France has no friends, only interests”. Similarly, British leader Lord Palmerston also remarked that “nations have no permanent friends or allies, only permanent interests” and the pursuit of such interests may be driving recent British policy to closely engage China even at the risk of jeopardizing its longstanding special trans-Atlantic ties with the US. How will the  international community behave when a final favorable ruling is awarded to the Philippines? Will they apply pressure on China to encourage its compliance knowing the same may antagonize their burgeoning interdependent economic relations and further push China against the wall and give credence to hardliners in Beijing who view the international system as being manipulated to contain and prevent China’s rise? Much expectation had been accorded to strong backing from the international community once a decision comes out despite little appreciation of emerging realities. Read more…

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