Pursuit of Post-Award Dialogue in the West Philippine Sea

By Lucio Pitlo III / 18 July 2016 / Originally Posted at ChinaUSFocus

The outgoing Aquino Administration will be remembered in Philippine history as the Presidency that stood up against efforts by another country to take away part of its territory and prevent it from enjoying sovereign rights over waters accorded to it under international law. This position enjoyed strong public support with many arguing that the country should not allow the repeat of what happened in Panganiban Reef (Mischief Reef) in 1995 when China took control of the feature. The Aquino government will also be remembered in world history for being the first government to legally challenge China’s claim on the West Philippine Sea (South China Sea) before an international court. Considering China’s tremendous political and economic clout, this was a bold and courageous move. The initiation of this legal challenge put Philippines-China relations to an all-time low with no high level communication since 2012, and there is some concern that things can get worse now that the ruling, which is unfavorable to China, has been made. The challenge now for the new Philippine Administration and the current Chinese leadership is how to move the relations forward post decision. Cooperation in the areas of combating transnational organized crimes, including narcotics trade, and infrastructure investments, for instance, seems promising but may have to wait until the dust of the arbitration outcome has settled.

The outcome represents a legal victory for the Philippines in the sense that it clarifies sovereign rights and maritime entitlement claims. However, the tribunal may still be caught in a quandary if the ruling is not honored or if the result leads to one party’s disinterest in international law and norms. Hence, the firm decision that was made is even more notable. Many realize that the decision continues efforts to resolve, if not manage, the longstanding maritime disputes. Yet there is also an emerging view that the decision can provide a platform for dialogue with the Philippines being able to diminish power asymmetry vis-à-vis China with the favorable verdict.

Lost opportunities to settle disputes

The decision to submit the disputes over the West Philippine Sea (WPS) to third-party arbitration demonstrated the Philippines’ firm resolve to protect its national territory, sovereignty and sovereign rights.  The window of time from the Bajo de Masinloc (Scarborough Shoal) standoff (April-May 2012) until January 2013—when the Philippines served China the Notification and Statement of Claim and arbitration procedure—saw attempts to resolve the matter through back-channel talks and even informal third-party mediation by the U.S., advising a mutual simultaneous withdrawal from the contested feature. But such efforts did not yield satisfactory results, leaving the militarily-disadvantaged Philippines limited options to assert and protect its interests. Did China underestimate Philippine resolve? Did the Philippines deprive China the time it needed to reflect and respond to its concerns? Whatever the case, the decision to proceed with the arbitration represents a lost opportunity for both sides to settle the disputes without raising the stakes. There is also a view which—from the time the arbitration was lodged until the time the Permanent Court of Arbitration (PCA) awarded partial jurisdiction and admissibility—represents another lost opportunity to settle the disputes similar to an out-of-court amicable settlement in civil and commercial cases (only China did not officially partake in the proceedings). Was China counting on the Philippines to back-off in return for considering its concerns and offering concessions? Was the Philippines counting on China to reconsider its non-participation given its norms-abiding peaceful rise mantra? There is no denying that the presence of high-level dialogue prior to, and even for the duration of, the arbitration could have made a difference. The case of the oilrig incident between Vietnam and China regarding disputed waters in the South China Sea (SCS) is instructive in this regard.

How then should the Philippines and China handle the verdict of the arbitral tribunal? Does the enduring solution to the WPS dispute rest on international law or in astute statesmanship and diplomacy? If the point of the arbitration was to impress on China the high salience attached by the Philippines to WPS, it seems the message has been received. But if China sees it as part of a larger effort by a rival power to contain its rise with Manila, thus allowing itself to be used, then it appears something went wrong with the message or China simply overestimated Philippines-U.S. relations. The Philippines’ decision to join the China-led Asian Infrastructure Investment Bank in 2015 as the last provisional founding member to do so—despite the arbitration and reported pressure applied by the U.S. to discourage allies from joining demonstrated independent action—should not have been lost in China’s consideration.

National interests, not great power politics

All eyes are on the Philippines and China to observe how these two states will behave now that a milestone decision on the three-year landmark dispute case has been rendered. Several factors may likely compel both parties to resume dialogue and find a mutually acceptable formula to implement the decision without losing face domestically and internationally. These include: 1) China’s non-participation in the case and non-adherence to the decision; 2) The tribunal’s lack of enforcement capacity; 3) Disunity within ASEAN on the SCS disputes (e.g. as demonstrated in the ASEAN Summit in Cambodia in 2012 and recently in the ASEAN-China meeting in Yunnan, China) and; 4) Potential further tensions and divisions that may arise from elevating the matter to another third party body or garnering support to criticize China. Thus, at the end of the day, the likelihood that both the Philippines and China will return to dialogue is high, only this time around, the former will have increased leverage, and the latter may become more restrained and accommodating. The question then will be whether or not the Philippines is able to make good use of this advantage.

From the Philippines’ side, it is important to decouple national interests from great power rivalry or from abstract principles like freedom of navigation (especially for military ships and aircraft)—the interpretation of which remains in contention. In the same way as the U.S. does not take sides in the WPS territorial and maritime disputes, the Philippines should also not take (and be seen as not taking) sides in U.S.-China competition. The country should know its national interests in WPS and prioritize the same above everything else. While it absorbed all the adversities alongside pursuing the arbitration, the Philippines provided many states with a free ride – some states that were able to use the ruling in a power play against China and others which were able to win favors from China by staying away from the SCS issue altogether. It is now high time that the Philippines put primacy on its own national interests.

Return to Dialogue

Following the Award, the Philippines, under the new Duterte Administration, can discuss with China several items that can be easily worked out. These minimum demands are largely economic and humanitarian in nature. They are reasonable, neither sensitive nor contentious, and have a higher degree of feasibility and implementation. The demands include: 1) Securing access to natural marine resources, including fisheries, offshore oil and gas and seabed minerals in WPS as part of Philippines’ sovereign rights; 2) Encouraging China not to interfere in the lawful and peaceful exercise of these economic activities; 3) Encouraging China not to interfere in Philippines’ navigational rights, including resupply of missions, conduct of necessary repairs, and upgrading of structures to improve the living conditions of Filipino residents and troops in the Kalayaan (Spratlys) Islands and; 4) Cessation from further occupation of unoccupied features which will only escalate tensions in the sea. A post-decision dialogue that would help address these issues will be warmly accepted by the Filipino people and will help build the momentum for the potential discussion of other areas of mutual interest. A dialogue between then Philippine President-elect Rodrigo Duterte and Chinese Ambassador Zhao Jianhua (days after Filipino fishermen from Zambales were able to resume fishing unmolested in Bajo de Masinloc) shows that dialogue works, contrary to the view held by critics of this approach.

Will the arbitration encourage China to reflect and revisit the legal basis of its nine dash line claims in SCS? Will it compel Beijing to gradually put these claims in conformity with international law, notably UNCLOS? These are questions that China has to answer. The arbitration decision may not compel China to do so in the immediate term, but this issue will continue to haunt China’s relations with its neighbors and the international community in coming years and will contribute to lingering suspicions about China’s real intentions in its near seas. Beijing has been criticized for militarizing SCS by building artificial islands with military and dual-use installations, so the onus is on China to reassure littoral states and the world that such structures do not pose threats to the security of other states or to commercial navigation.

It is unthinkable for China to dismantle the facilities it constructed in SCS, and although such facilities have received criticism, they have the ability to provide public goods, which can be shared to other SCS littoral states as well as to China. The Philippines, along with other claimant states, hopes that China will keep its word on this. Otherwise, it will further erode whatever fledgling trust and confidence China labored hard to cultivate with its neighbors through the years.

The arbitral award may present opportunities for both sides to address their disputes. One side may argue that an agreement can arise from compliance to the verdict, while the other may state that any agreement made is borne out of the post-decision dialogue. This provides face-saving reliefs for the leadership of both sides when communing with their domestic publics.

 

 

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