July 19, 2016
Dindo Manhit, President of Stratbase-Albert Del Rosario Institute for Strategic and International Studies
Image Source: The Philippine Star
The July 12 verdict of the International Arbitral Tribunal represents a watershed moment in the tumultuous history of the South China Sea dispute. For the first time in the history of Philippines-China relations, the United Nations Convention on the Law of the Seas (UNCLOS) which the two countries both ratified voluntarily in 1982 was invoked to settle compulsorily their maritime dispute in the said strategic waterway. The 501-page award provided an authoritative legal interpretation on five (5) key aspects, namely: (a.) historic rights and the nine-dash line, (b.) status of features and resulting maritime entitlements, (c.) lawfulness of Chinese actions, (d.) impact to the marine environment, and (e.) aggravation of disputes during the resolution proceedings.
Interestingly, Manila’s stunning legal victory over Beijing already sent ripples across the region and the world. As of 18 July 2016, the Arbitration Support Tracker of the Asia Maritime Transparency Initiative (AMTI) noted that since the issuance of the ruling, 34 countries have publicly called for it to be respected, four (4) have positively acknowledged it but fell short in calling for compliance, and three (3) have publicly rejected it. Furthermore, the US-led international effort to defend freedom of navigation and uphold international rules-based system received a tremendous boost when: (a) Australia renewed its calls to conduct freedom of navigation operations (FONOPS) in the South China Sea; (b) Japan committed to monitor more rigorously Chinese activity in East China Sea; and France announced its plan to coordinate the navies of European Union powers and regularize its presence in the volatile region. In effect, China’s international reputation as a responsible, rising power is now under heavy crossfire, its narrative of peaceful rise subjected to international scrutiny, and its strategic maneuvering to back its sovereignty claims undermined.
While the Philippine legal and political intelligentsia along with the majority of the population were celebrating the de jure victory of the country, however, the latest developments on the ground ought to be a cause of serious concern: in a seeming act of defiance to international law, Chinese Coast Guard vessels resumed their blockade and intimidation of Filipino fishermen who attempted to sail to the Scarborough Shoal in the wake of the ruling. It remains to be seen whether President Xi Xinping will continue to give primacy to domestic pressure over international outcry by proceeding with the alleged island construction in Scarborough Shoal, deployment of military facilities in its seven (7) artificial islands in the Spratlys, and/or declaration of an Air Defense Identification Zone (ADIZ) in large swathes of the South China Sea.
What then could be the way forward for the Philippines in order to translate its legal victory into lived reality, especially for the thousands of Filipino families whose livelihood are directly impacted by the ongoing maritime tensions? One possible answer may be the simultaneous pursuit of deescalation and deterrence. Here, Manila may opt to safeguard the fruits of its liberal approach by pursuing a dual-track strategy: On the one hand, the Philippines should “set the tone” for peaceful resolution of the dispute through assertive diplomacy in bilateral and multilateral fora which calls on China and other relevant parties to adhere to the rules-based order, in general, and to the terms of the ruling, in particular On the other hand, given the anarchic nature of international relations and UNCLOS’s lack of international law enforcement mechanism, the Philippines must beef up its own military and law enforcement capabilities as well as strengthen its alliances with like-minded countries to effectively implement such rules and raise both the material and reputational cost for China’s non-adherence.
Peaceful resolution of maritime disputes remains the strategic objective for the Philippines. Given that international law and public opinion are now fully in its favor, it is significant that the Duterte administration play its cards well in its bilateral ties with China as well as multilateral engagements with fellow ASEAN member-states and other extra-regional powers which share common interest in the overall preservation of regional peace and stability. As regards bilateral relations, the Philippines should uphold the stipulations of the ruling as its basis for future resumption of high-level government-to-government talks and possible pursuit of foreign investment under joint venture with China. It is imperative for the Philippines to provide reasonable time for China to manage the risk of its growing nationalism at home while working to fine-tune its own maritime laws in line with UNCLOS provisions. For instance, in the case of the Arctic Sunrise (Kingdom of the Netherlands v. Russian Federation) Arbitration in 2013, Netherlands patiently waited for Russia to internalize and eventually capitulate on ITLOS ruling which is the immediate release of the former’s Greenpeace ship Arctic Sunrise and the remainder of Greenpeace crew protesting the oil exploration in the Arctic region.
As regards multilateral relations, the Philippines should actively present its case as a legal precedent for ASEAN claimant-states to further clarify their respective maritime entitlements and boundaries as well as align their respective domestic policies on fishing rights and mineral/oil and gas explorations with UNCLOS provisions. This would eventually serve as legal basis for future maritime delimitation and resource-sharing agreements among ASEAN claimant-states and between ASEAN claimant-states and China, thereby reducing the risk of violent encounters at sea. It is hoped that the success story of Philippine-Indonesia maritime delimitation agreement on overlapping EEZ in Mindanao and Celebes Sea in 2014 be gradually replicated in the South China Sea. Furthermore, the Philippines should harness its newfound moral high ground to push for the adherence of all parties to the ASEAN-China Declaration of Conduct and expedite the conclusion of the Code of Conduct. Finally, the Philippines must build on its political capital by persisting on sending a clear message in the upcoming regional fora such as the ASEAN-Europe Meeting and ASEAN Foreign Ministers Meeting that it is in the long-term interest of China to play a constructive role as a rising power, abide by the terms of the ruling, and prevent further coercive activities that destabilize the region.
While building ways to diffuse the maritime tension and lay the groundwork for future cooperation with China on the diplomatic front, the Philippine government should not lose sight on the necessity to effectively implement the arbitral ruling and increase the risk calculus for China’s non-compliance with UNCLOS. Hence, the Duterte administration ought to use the ruling as the new legal foundation for updating its comprehensive defense and security plan for West Philippine Sea and political justification for increasing the defense budget and accelerating naval and coast guard modernization. In the immediate term, Duterte could well use his huge political capital to urge the Armed Forces of the Philippines and Philippine Coast Guard to speed up their acquisition of naval assets and coast guard vessels to effectively prevent present and future encroachments of Chinese coast guard and fishing militia in waters already deemed under Philippine maritime jurisdiction. In the long-term, the Philippines ought to coordinate government and civil society efforts to upgrade our military outposts and develop our civilian communities in Spratlys as well as invest in modern asymmetric and defensive capabilities to challenge China’s swarm/cabbage strategy, such as anti-ship/anti-air missile systems and submarine platforms.
Along with beefing up its navy and coast guard capabilities, the Philippines may opt to synchronize its defense plan with fellow ASEAN maritime powers, such as Vietnam, Indonesia, and Malaysia to prevent undue incidents among themselves and come up with a more unified ASEAN maritime front to effectively repulse Chinese encroachments in ASEAN territorial waters and EEZs. Furthermore, the Philippines should capitalize on the ruling to further strengthen its military partnership and gain more concessions with the US under the 1951 Mutual Defense Treaty (MDT) framework as well as Japan, South Korea, Australia and EU—countries with shared interest in the preservation of freedom of navigation. This may entail more joint interoperability trainings, greater rotational presence, technology and capital transfer, and even the creation of defense economic zones in the Philippines which could be the hub for naval/coast guard ship manufacturing industries.
Towards a Balanced Liberal and Realpolitik Approach
One may argue that the legal triumph of the Philippines over China in the International Arbitral Tribunal is not just about Manila’s assertion of its inherent right as a sovereign nation to defend its maritime entitlements under international law for present and future generations of Filipinos; over and above, it is a hard-won victory for international rules-based order against 19th century-style gunboat diplomacy. However, it is imperative for the Philippines not to rest on its laurel but rather exhaust all means for the ruling to be implemented and the liberal order preserved. Therefore, the country ought to strike a delicate balance between the two complementary approaches: first, pursuing an assertive diplomacy (liberal approach) that advocates for China and the international community to respect the sanctity of the law of the oceans as a pillar for stability and prosperity for all; and second, beefing up the navy/coast guard and strengthening alliances (realpolitik approach) that provides the much need teeth for the ruling to be effectively observed in the absence of an international law enforcement mechanism. Only then will the region be able to keep the peace.