UN arbitral panel rules in favor of the Philippines: Now what?

Foreign Secretary Albert del Rosario’s dogged determination to pursue the South China Sea/West Philippine Sea dispute through the rule of law has proven his approach correct. The court ruled the case was “properly constituted” under the United Nations Convention on the Law of the Sea, that China’s “non-appearance” (i.e., refusal to participate) did not preclude the court’s jurisdiction, and that the Philippines was within its rights in filing the case.

In the period before the ruling, there was a lot of pressure on the Secretary to dial down his stance and seek accommodation with China. While China has insisted on resolving the issue on a bilateral basis, the Secretary has maintained this would leave us at a disadvantage and that in the instances where we tried to open dialogue, China has been unresponsive. That said, now that our hand has been strengthened, the argument in favor of the merits of seeking a peaceful, managed resolution has I think become even more persuasive. However, the responsibility of how to respond to this challenge will now have to be made by the incoming administration.

Unfortunately, the sounds currently coming from presidential aspirants or supporters of the aspirants reveal a misunderstanding of what the case is all about, claiming victory for our sovereign rights over the area. They have to get up to speed on the issue and determine the best way forward to protect the national interest rather than engaging in just nationalistic rhetoric.

There is still a long way to go and it is possible the court may ultimately find no merit in or no jurisdiction over a number of Philippine assertions. But it is true that it is a major boost to our effort to resolve the dispute through the application of the rule of law. Some observers do say the determination of jurisdiction phase was the most vulnerable to political and diplomatic pressure. The members of the Court could have bailed out by saying it did not have jurisdiction over the matter because for example, it touches on sovereignty issues. But in fact, the Court voted unanimously as the case “concerns only whether the Tribunal has jurisdiction to consider the Philippines’ claims and whether such claims are admissible.” Our 4,000 page memorial, however, was cleverly constructed to limit the assertions to the interpretation of international law, principally UNCLOS, and not directly on the question of sovereignty. Now, the merits of the case will be decided on the basis of internationally established rules and precedents. The legal experts are convinced we have a strong case. At the very least it would ensure that, even without China’s participation, the merits of its 9-dash line (which is the basis of its claim of sovereignty) will be evaluated by a neutral international body.

China has managed to avoid explaining the logic behind the 9-dash line by taking a position of “strategic ambiguity” – laying claim to a wide expanse of waters and mostly submerged reefs and rocks on the basis of historical rights. They deliberately ignore the question of whether these reefs and rocks meet the UNCLOS criteria for generating territorial waters and even more so, an EEZ. Under UNCLOS, only naturally formed islands and islets of certain elevation at high tide are capable of generating territorial waters and only islands capable of supporting permanent human habitation can generate both territorial sea and EEZ. Now the entire South China Sea is about 3.5 million square kilometres, but the total land area of all islands and features is only 15 square kilometers at low tide. Simple math would suggest this would in no way give China the right to claim ownership of the entire area, even if in the unlikely event that its sovereignty claim over these land features is upheld.

In fact, the Philippine position is that if the 9 dash line has no basis in international law, then China does not have a basis for laying claim to sovereignty over completely submerged areas, or historic rights to living and non-living natural resources, including control of maritime navigation.”

The incoming administration would have several factors

in its favor as it seeks to find a peaceful resolution. First, the dispute has been internationalized. China’s disregard of the legal avenue for resolution and its aggressive reclamation has drawn reprobation. Even the normally neutral Asean countries have become unsettled by China’s actions and have expressed their disapproval.

Ironically, the ruling may have a salutary effect on the prospects for a binding Code of Conduct for the South China Sea which had long languished on account of China’s delaying tactics. The court has rejected an argument in China’s position paper that the “2002 China–Asean Declaration on the Conduct of Parties in the South China Sea constitutes an agreement to resolve disputes relating to the South China Sea exclusively through negotiation.” The court has decided the Declaration on Conduct was a “political agreement that was not intended to be legally binding”. So now even China might find this a more palatable forum than one that involves non-Asean parties.

Secondly, the US has taken an active involvement in the dispute by sending its Navy ships to test China’s assurance of freedom of navigation and, at the same time, probing the lengths to which China is prepared to justify its 9-dash line boundary.

Thirdly, Japan, Vietnam and the Philippines have found common ground on this issue and opens up wide areas for cooperation.

But while these pressure points might encourage China to moderate its aggressive stance, it is its internal situation that would determine how much flexibility it would have. President Xi Jin Ping is still consolidating his hold and cannot afford to appear soft. He is also facing the challenge of a slowing Chinese economy as it transitions from dependency on exports and investments to a more balanced and sustainable model where domestic consumption is a key component. The Chinese people’s nationalism can easily be stoked by recalling its long history of colonial subjugation and invoking its rightful place in the world for its remarkable achievements. China has already said it will not honor the outcome of the arbitration. Nor should we expect them to. Any resolution to this long festering issue will have to take into account China’s interests as well and provide “face” to the leadership. The fact that China’s leaders will be dealing with a new Philippine Leader would allow both to dial down from their current stand-off without losing face. The adoption of a binding Code of Conduct would go a long way in keeping the status quo.

Then both sides can then buckle down to the most difficult issue. I believe that sharing resources that can be found in the area is the easier dilemma to deal with than the issue of who should guarantee freedom of navigation in this vital waterway. Since the US does not trust China, and China in turn does not trust the US can, Asean take that role? These are just some of the issues our Presidential aspirants should be thinking of now. The court will render its ruling in 2016 and this is one major challenge our new president will have to confront upon his assumption to the highest position of the land.

One last point. China should realize this issue is not just between the US and China, but one that strikes at the heart of developing smaller countries of Asean countries which, with China, struggled to be respected by world powers in constructing a new world order after the last world war where big and small, new and old countries are treated as equals.