Does negotiating with China make sense for the Philippines?

by JACQUELINE ESPENILLA / 9 July 2016 / APPS Policy Forum

The South China Sea’s upcoming judgement day is going to be a tipping point for tensions and a watershed for regional dynamics, writes Jacqueline Espenilla.

China has long claimed that the South China Sea dispute can only be resolved by negotiation. This belief is purported to be the rationale for its refusal to participate in the arbitration case initiated by the Philippines under the auspices of the United Nations Convention on the Law of the Sea (UNCLOS). From China’s perspective, the UN-backed process in the Permanent Court of Arbitration amounts to nothing more than Philippine legal sabre-rattling and constitutes “an abuse of the compulsory dispute settlement procedures”.

In its October 2015 award on jurisdiction and admissibility, the tribunal found that the two countries never entered into a legally binding agreement to settle their disputes via bilateral negotiations, nor did they ever agree to exclude any other dispute settlement procedure. The tribunal further emphasised that China’s repeated insistence on negotiating indefinitely cannot dislodge the “backstop of compulsory, binding procedures” provided by Part XV of UNCLOS, especially since the Philippines never actually relinquished this right during their years of dialogue with China.

Beyond legal speak, one practical question should be considered: does negotiating with China still make sense at this point? Rodrigo Duterte, the Philippines’ new President, seems to think so. In a statement made on July 5, he affirmed his pre-presidency stance on re-opening bilateral discussions with China, saying that ultimately, he would proceed according to the greater interest of the country. China has welcomed this seeming policy shift by immediately having Chinese Foreign Ministry Spokesperson Hong Lei reiterate China’s desire to “work in unison” with the Philippines.

The arbitral tribunal’s upcoming 12 July judgement will likely be the tipping point for tensions and will certainly be a watershed for regional dynamics. Assuming that bilateral negotiations were to be revived in the aftermath, one cannot help but wonder if there is anything left to discuss.

According to early reports, talks, if they happen, will likely focus on “joint development and cooperation in scientific research”. But what does that mean exactly? In the 1980s, Deng Xiaoping advocated the idea of “setting aside disputes and pursuing joint development” with other claimant countries in relation to the Diaoyu/Senkaku Islands and the Spratlys.

This concept, as explained by China’s Ministry of Foreign Affairs, contains four elements, the first and most essential being that “the sovereignty of the territories concerned belongs to China”. This immediately stands out as a worrying indication of China’s mindset going into any negotiations involving the South China Sea. Nothing that the Chinese government has said or done in the intervening years has assuaged concerns that it will be an unreasonable counterparty. Read more…

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