August 1, 2018

A recent poll purports to show that there is huge domestic opposition to Philippine President Rodrigo Duterte’s ‘soft’ approach to China, and it is supposedly gathering steam. If this is an accurate assessment of the ‘will of the majority’ –and some say it is not--it could force a policy change. But what are the proposed alternatives and the likely results of implementing them?

The Philippines, under then President Benigno Aquino, brought the legal issues generated by China’s competing claims in the South China Sea before an international arbitration panel set up under the auspices of the UN Convention on the Law of the Sea (UNCLOS). In July 2016, the panel ruled overwhelmingly in the Philippines’ favor.

However, then newly elected President Rodrigo Duterte abruptly pivoted Philippine foreign policy towards China, and did not try to take immediate advantage of the panel’s ruling, in exchange for China’s potential economic largesse. This policy shift has outraged international and domestic legal idealists, sparking bitter opposition to this policy and generating a deeply polarizing domestic dispute.

According to the July 2016 arbitration decision, China’s nine-dash line historic claim to a large part of the South China Sea and its resources is not consonant with UNCLOS and thus legally invalid. This means that the resources within the Philippines’ claimed maritime zones belong to the Philippines alone.

But China disagrees. It refused to participate in the arbitral proceedings or to accept the result; thus, its ambiguous claims to the area and the features and resources within it still stand. Moreover it has made clear that it will go to the mat over them—against the Philippines and others that dare to challenge it militarily. In sum, China - like other big powers before it - is demonstrating that it can and will continue to defy international law and ‘get away with it’. This is the reality.

Duterte foresaw that the costs to the Philippines and the Filipino people of immediately pressing the issue would far outweigh the more theoretical benefits. He likely reckoned that the Philippines’ future lies in Asia, that the Philippines is militarily weak, that China is militarily and economically very powerful, and that no country -- including its ally the U.S. -- is likely to physically come to its assistance against China. Moreover, Duterte may have calculated that the U.S. needed the Philippines as a base for power projection, resupply and maintenance of its warships and planes as well as rest and recuperation for their crews. According to this theory, he knew he had some leeway with the U.S. even if he turned diplomatically and economically toward China.

So he decided to temporarily set aside the arbitral decision and seek an interim practical compromise. He is trying to negotiate shared access to the resources, so far leading to continued access by Filipino fishermen to most of its fisheries, and to the possibility of ‘joint development’ of any oil and gas. Meanwhile, his administration has continued to protest China’s actions diplomatically --,albeit perhaps too quietly or meekly for the pride of purists in the opposition. Nevertheless, these protests do demonstrate that the Philippines has not legally acquiesced to China’s claims nor ‘abandoned’ the arbitration result. Moreover, the arbitration panel’s ruling is now part of international law and is not likely to change easily or quickly despite the paranoia of the opposition.

The opposition, most prominently former foreign secretary Albert del Rosario and Supreme Court Justice Antonio Carpio who are both members of the team that brought the question of the validity of China’s claims to international arbitration, maintains that anything short of China’s recognition and implementation of the arbitration decision would violate the Philippine constitution. They also say that ‘joint development’ without this prior recognition could be interpreted as an implicit acknowledgement of the validity of China’s claim, even if the percentage split were in the Philippines favor.

There is certainly no shortage of demands and proposals from the opposition, which seem to fall into three categories.

First is that the Duterte administration should reverse course and re-pivot towards the U.S. seeking its protection to counter China’s aggressive behavior and help it ‘enforce’ the arbitral ruling.

Doing so would be risky. The U.S. may not help, and China might become even more aggressive towards the Philippines, and other claimants as well. Even if the U.S. did help at least politically, it could mean that the Philippines would be surrendering its newfound and hard won foreign policy independence. This would greatly benefit the U.S. in its seminal soft and hard power struggle with China for regional dominance, and would thus likely be supported by it.

Second is that the Duterte administration should emulate Vietnam’s example by opposing China’s claims while maintaining economic and political ties.

The Philippines is not Vietnam nor can it have a similar relationship with China. Vietnam is territorially contiguous to China and has a similar political system and strong Communist Party – to- Party ties that help maintain good economic and political relations through thick and thin. Further, Vietnam can demonstrably mount a credible military response against China, yet was unable to successfully stand up to it in the South China Sea. It has yielded to China’s intimidation by canceling its contracts with companies that were operating in areas of its EEZ claimed ‘illegally’ by China. The Vietnam approach will likely not be successful for the Philippines either.

A third argument of the opposition is that the Duterte administration should mount a political campaign to name and shame China for its aggressive behavior in the South China Sea.

This would have many dimensions. Carpio suggests sponsoring a resolution in the UN General Assembly (UNGA) that China abide by the arbitration ruling. He also suggests entering into a boundary agreement with Vietnam regarding their overlapping extended continental shelves and with Malaysia to delineate their common EEZ boundary. Further, he says the Philippines should file an extended continental shelf claim in the West Philippine Sea, and that the Philippines should campaign among Southeast Asian countries to make explicit that Chinese construction on Scarborough Shoal would be a clear violation of the 2002 ASEAN-China Declaration on the Conduct of the Parties in the South China Sea. He also argues that the Philippine government should lobby the U.S. to make such construction a trigger for invoking the US-Philippine Mutual Defense Treaty.

One particularly dangerous proposal is to send Philippine navy vessels to patrol Scarborough Shoal; should China’s vessels attack the Philippine ships, it can then invoke the Philippines-US Mutual Defense Treaty (MDT). This proposal forgets that in such a scenario, the two allies would “consult” and that such an “attack will be acted upon in accordance with their constitutional processes_ _.” The U.S. would probably use this clause to prevaricate and evade any military response. Moreover if the Philippines provoked such a clash, it could be using ‘coercion’ which is prohibited by the UN Charter.

Another probably futile proposal is to send a survey vessel to Reed Bank and if Chinese vessels run it off, seek damages from the arbitration panel and “go after assets of China anywhere in the world”. But China would likely ignore the decision as it did the previous one –and it would be hard to get international cooperation to seize China’s assets.

Implementing any of these proposals will likely be counterproductive for the Philippines and result in no access to its maritime resources. Indeed, it is likely that these tactics would result in China stepping up its aggressive behavior against the Philippines and other claimants as well. China would likely not recognize a UNGA resolution and in any case it would be non-binding. Moreover it would lobby other Southeast Asian countries to oppose it. China would probably successfully lobby Vietnam not to enter into such a boundary agreement with the Philippines. An EEZ agreement with Malaysia would involve the question of ownership of Sabah and thus would be very controversial and difficult. ASEAN as a whole and many members would not likely back the Philippines’idea of a ‘red line’ for construction on Scarborough Shoal. The U.S. did not back it militarily in its standoff with China there in 2012 – and is not likely to do so in the future.

The only achievement for the Philippines of implementing these proposals would be to salve the opposition’s collective conscience and wounded pride. For some, it may be worth trading loss of access to its own resources for that–-but then they will have to bear some of the political and moral responsibility for the consequences.

The opposition seems to cling to the hope that unified domestic Philippine protest and international opprobrium against China’s policies and actions will make China change its policy. This is highly unlikely. The reality is that China’s looming hard and soft power, ASEAN’s demurral and US domestic turmoil and other foreign policy distractions mean the Philippines may indeed be -- in Duterte’s words -- at “China’s mercy”.

However, at least one of Carpio’s suggestions has merit. He says the Duterte administration should “avoid any act, statement or declaration that expressly or implicitly waives Philippine sovereignty to any Philippine territory in the West Philippine Sea”. Indeed, that is so and relatively ‘cost free’. Moreover the Philippines could make its diplomatic protests stronger and public. But doing so would probably not satisfy most of the opposition.

There are no perfect options. Perhaps the only viable option is to maintain Duterte’s position and hope for a future China to behave more in concert with existing international law. In the meantime, practical arrangements could be initiated.

However a ‘middle way’ must be found. The widening split in the Filipino political class is domestically dysfunctional and could be dangerous for an independent foreign policy because it provides opportunity for either China or the U.S. to interfere in the Philippine political system.

Mark J. Valencia is Adjunct Senior Scholar at the National Institute for South China Sea Studies, Haikou, China.

Link:https://appfi.ph/resources/commentaries/2305-the-philippines-internal-war-over-the-south-china-sea-idealists-vs-realists 

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