Post Arbitration: Duterte’s joint development and other policy approaches to the West Philippine Sea
Recently, the Philippines under President Rodrigo R. Duterte announced its plan to pursue “co-ownership” or, more accurately the joint exploration, of portions of the South China Sea (also known as the West Philippine Sea) with China, a year after the Permanent Court of Arbitration (PCA) awarded the Philippines with the ruling that invalidates China’s nine-dash lines and artificial island construction. Proposed areas for exploration include the west of the Calamian Islands and Reed Bank, off the waters of Palawan.
Unlike the Calamian Islands which are not claimed by China, Reed Bank, which lies within the Philippine Exclusive Economic Zone ( EEZ) as far as the PCA ruling is concerned, is contested by China. Also known as Recto Bank, this maritime feature became well known when it was mentioned in former president Benigno S. C. Aquino III’s quotable SONA of 2011 — “What is ours is ours; setting foot on Recto Bank is no different from setting foot on Recto Avenue,” he said.
Asserting state jurisdiction in the maritime domain is more problematic than on land. In referencing UNCLOS ( the United Nations Convention on the Law of the Sea), Professor Sam Bateman highlights that dissimilar attributes of land and water domains result in different modes of jurisdiction. Because fixity is absent in the maritime domain, the state exercises sovereignty over the territorial sea but it should not impede other states’ rights to innocent passage. By contrast, the state exercises sovereign rights to explore, exploit, conserve, and manage the resources in the EEZ, where state jurisdiction is far less absolute than in the territorial seas.
Economist Elinor Ostrom offers a relevant perspective using the commons theory. The “commons,” such as public goods, are universal access goods. Excluding persons from accessing values such as justice, security, and health is difficult if not impossible. The world’s coastal and marine fisheries, forests and airspace, on the other hand, are differentiated as common pool resources (CPRs). Unlike public goods, the utilization of CPRs, if unsustainable, leads to degradation or depletion and subtracts future benefits from potential users. High subtractability of ben-
efits and non-excludability of users, thus, are two of the important features of the global maritime commons including the EEZ.
Given the above, it seems that joint development of the South China Sea common pool resources is the next best option for the Philippines. At the height of the Philippines-China conflict over Scarborough Shoal in 2012, no less than Law of the Sea specialist Jay Batongbacal emphasized how crucial cooperation is among littoral states that border enclosed and semi-enclosed seas such as the South China Sea. Academics then proposed cooperative measures as a de- securitizing action to lower tensions and of downplaying nonnegotiable territorial sovereignty claims. Joint resource development concretizes maritime states’ cooperation in resource utilization and exploitation, most crucially in cases of overlapping EEZs and where maritime boundary delimitations do not exist between or among concerned states. As non-absolute sovereignty zones, states, according to the UNCLOS, are duty bound to cooperate in the use of EEZs.
Joint development that is constitutional is a pragmatic counterpart response to the continuing power asymmetry in the South China Sea. To date, the Asia Maritime Transparency Initiative has captured images of the continuing fortification of Fiery Cross, Mischief, and Subi reefs — as China’s and ASEAN foreign ministers agreed to resume talks on the much needed framework for a code of conduct. Indeed, while post arbitration has created a situation that is less tense, the same set of geopolitical variables govern the South China Sea and Philippine-China relations.
Given this context, two other elements in addition to joint development characterize President Duterte’s multilayered response. After choosing to shelve the PCA ruling for a year, Mr. Duterte has obviously moved towards bilateralism. Bilateralism is reflective of his pivot to China and is the latter’s preference, but also reflects ASEAN’s inability to mobilize multilateral support for the 2016 ruling. Alongside bilateralism, the Philippines has taken part in the 2017 negotiations for a multilateral framework for a code of conduct along with ASEAN and China. This is said to have introduced a relevant institution for preventing incidents at sea, considered by navies as one of the more efficient confidence-building measures in the maritime domain. However, what makes this a weak form of multilateralism are the greater trust issues that outweigh the operationalization of confidence-building measures.
In choosing to take these policy directions, President Duterte’s government has to hurdle specific constitutional requirements. And just as challenging, it should learn to address the realpolitik and trust challenges of dealing with China in the context of the post arbitration ruling.
Joint development that is constitutional is a pragmatic counterpart response to the continuing power asymmetry in the South China Sea.