Moving Beyond The Jurisdiction Victory In West Philippine Sea – OpEd
The October 29 decision of the Permanent Court of Arbitration stating that it has jurisdiction over the case initiated by the Philippines against China was a landmark victory for the Philippines and a potential milestone for the international law of the sea. In a way, the decision gave some sense of vindication to the approach taken by the Aquino Administration in an attempt to put to rest the longstanding dispute over the West Philippine Sea (WPS). However, while the early partial jurisdiction decision was very much welcomed, it is still too early to predict how the tribunal would decide on the merits of the case and how long that process will take. In addition, the Tribunal maintained that jurisdiction over seven of the fifteen claims made by the Philippines would still be decided in conjunction with the merits and one claim has to be further narrowed down and clarified. For now, the jubilation from the partial jurisdiction triumph gave a respite to the painstaking sacrifices made in pursuit of this legal approach. But when the dust settles, with an eye on winning the decision over the merits, the Philippine leadership should begin preparing how to make good use of its legal ascendancy in dealing with China pre- or post-merit decision.
In doing so, the Philippines should bear in mind some key considerations: 1) it should not confuse the means with the ends; 2) it should observe the evolving regional environment and see how its actors, including fellow South China Sea claimants, respond to China’s behavior and; 3) it should take a page from the experience and practice of its neighbors, like Vietnam, in dealing with China.
The work does not end with the tribunal’s decision as this body has no enforcement mechanism. Rather, the third party arbitration decision should be seen more as an enabler. A favorable judgment for the Philippines will undeniably confer on it higher ground in succeeding dialogues with China. A legal victory can help address the power assymetry in the negotiation table between the two states that has long been the source of anxiety and uneasiness on the part of smaller states when discussing territorial and maritime disputes with a bigger neighbor (and this unbalanced power relations is also driving smaller states to engage extra-regional powers as a mitigating measure). International reputational costs may encourage China to be more accommodating to legitimate Philippine demands, particularly in relation to access over marine resources, security assurance, and ensuring freedom of navigation and overflight in the WPS. China may choose to behave like other hegemons counting on past precedents like the 1986 US vs Nicaragua International Court of Justice case to justify its recalcitrance – that big powers cannot be compelled into submission by the international legal system and they can get away with it. But doing so would run contrary to the peaceful rise mantra that it espouses. It will also run counter to China’s aspirations of cultivating harmonious relations with its neighbors, invite interference of other parties and contribute to regional instability which does not in any way work towards Beijing’s favor. Hence, with an appreciation of the aforementioned, whatever benefit the Philippines can obtain from the arbitration ruling should better be used as a leverage in negotiating with China.
No friends, just interests
The Philippine legal challenge against China had been likened to an epic battle between might vs right, Goliath vs David , the giant or major world power vs the underdog and even more interestingly between dark vs light, among others. But, in real life, international relations, its actors and their motivations are hardly black and white. Former French general, leader and statesman President Charles de Gaulle said that “France has no friends, only interests”. Similarly, British leader Lord Palmerston also remarked that “nations have no permanent friends or allies, only permanent interests” and the pursuit of such interests may be driving recent British policy to closely engage China even at the risk of jeopardizing its longstanding special trans-Atlantic ties with the US. How will the international community behave when a final favorable ruling is awarded to the Philippines? Will they apply pressure on China to encourage its compliance knowing the same may antagonize their burgeoning interdependent economic relations and further push China against the wall and give credence to hardliners in Beijing who view the international system as being manipulated to contain and prevent China’s rise? Much expectation had been accorded to strong backing from the international community once a decision comes out despite little appreciation of emerging realities.
Every challenge – like the WPS disputes – can also be seen as an opportunity and the flurry of wheeling and dealing among littoral states in the region in recent years demonstrates attempts to compromise and trade concessions from one another. And in most of these actions, the Philippines is being left out. Vietnam, Malaysia, Indonesia, Thailand and Japan (and recently Australia), did send observers to the Hague proceedings but their preoccupation is arguably more towards assessing the implications of the case towards their own claims and less of a show of support to the Philippine position. In fact, other littoral states are free riding at Manila’s back, expressing various degrees of support, albeit token, to the case while still engaging with China and other disputants. As a result, they had exacted considerable concessions from the competition of great powers without getting entangled in their geopolitical and geoeconomic rivalry. The partial jurisdiction victory may convince adherents, as well as critics alike, that the Philippine administration is on the right track, but the road is still long and the destination still remains uncertain. For the time being, other interested parties to the case, including other claimant states, are obtaining insurance and not putting all their eggs in one basket.
Taking a page from Vietnam’s book
If there is any claimant state that has the most axe to grind against China in the South China Sea (SCS), it can only be Vietnam – losing control of the Paracels and losing 64 soldiers in the skirmish over Johnson South Reef in the Spratlys in 1988. But Vietnam’s position in dealing with China, especially over SCS, is not solely confrontational but rather includes a strong engagement element as well. Deep familiarity with the Chinese engendered by centuries of living under Chinese rule and shared political and economic systems made Vietnam very adept in dealing with China.
After the May 2014 oil rig incident where China and Vietnam traded accusations of ship ramming and which also precipitated a series of anti-Chinese demonstrations across Vietnam, Chinese State Councilor Yang Jiechi visited Hanoi to mend frayed ties and in July of the following year Vietnamese Party General Secretary Nguyen Phu Trong visited Washington, culminating a series of high level US-Vietnamese exchanges and visits that began in 2013. The Chinese oil rig was removed from Vietnam’s EEZ and Vietnam gained a partial lifting of the US-imposed arms embargo against it, not to mention obtaining US support for its maritime security. During the oil rig standoff, the initiation of legal challenge against China was put on the table but whatever mutual concessions both sides traded, it was enough to prevent Vietnam from taking legal action.
The November 7, 2015 visit of Chinese President Xi Jinping to Hanoi was widely seen as a step to repair relations damaged by the oil rig row. President Xi Jinping was given a rare opportunity to address Congress. Both sides issued a Joint Statement saying that the visit was a success in terms of “contributing greatly to cementing the traditional friendship, deepening the Viet Nam-China comprehensive strategic co-operative partnership, and promoting peace, stability and development in the region and the world.” (Interestingly, the purported visit of US President Obama to Vietnam did not push through). However, while continuing its engagement with China, Vietnam, at the same time, has also invited Japan to participate in a humanitarian exercise and for a Japanese warship to call at strategic Cam Ranh Bay. In addition, at the sidelines of APEC 2015 held in Manila, Philippines and Vietnam, two vocal critics of China’s assertive actions in SCS, elevated their bilateral relationship to a strategic partnership. All these demonstrate Vietnam’s effective nuanced approach in balancing its relations with great powers to advance its own comprehensive national interests – security, economic and political. These experience and practices can serve valuable lessons to the Philippine leadership as it continues to develop its China policy in the years to come, regardless of the outcome of the arbitration case.
Never too soon or too late to talk
It is neither too soon nor too late for the Philippines and China to find ways to resume high-level and meaningful engagements, as well as explore alternative ways of managing the disputes. All states would say that they have indisputable sovereignty or sovereign rights over territories or waters they claim which are contested and this is to be expected. But the fact that they are willing to discuss the issue, through bilateral dialogues or gradually through regional mechanisms, suggests a veiled acknowledgment of the existence of the dispute. Boundary negotiations require sustained political will and commitment and have long time horizons – Philippines and Indonesia recently settled their maritime boundary after 20 years of negotiations, China and Vietnam settled their maritime boundary in the Beibu (Tonkin) Gulf after 27 years and the Sino-Russian land and riverine (including islands in the river) boundary took 40 years of hard work from both sides. China made it clear that the withdrawal of the case is not a precondition for such talks and that the Philippines is not being excluded from its recent trade, connectivity and financial initiatives such as the One Belt, One Road and the Asian Infrastructure Investment Bank. That bilateral trade continues and even had some modest growth despite of the tensions demonstrating that doors remain open and that such openings can be further expanded. After a brief halt, Philippine agricultural exports to China resumed and the easing of restrictions on direct chartered flights from selected Chinese points of origin to various Philippine destinations boosted Philippine tourism.
Philippines should engage China not on the basis of fear or misperception but rather out of conviction and confidence, especially coming after the partial jurisdiction triumph, knowing that it is in China’s best interests to showcase its good neighborhood policy by respecting and reassuring legitimate Philippine national security needs and maritime economic interests. China cannot be a respected world leader if it cannot be even acknowledged as a responsible neighbor in its immediate backyard. Engaging or talking with China does not mean that the Philippines is backing down or showing less nationalism in the same way as it cannot be said for the Vietnamese, Indonesians (and the rest of ASEAN states) and even for the Koreans, Japanese and Americans. The WPS disputes had been there since the 1940s and even early on by some accounts, and the end of such disputes is nowhere in sight. However, despite the persistence of the disputes and occasional outbursts, successions of leaderships among coastal states had shown a commitment to handle the disputes without infringing on the fundamentals of regional security and stability. As it continues to challenge longstanding US primacy in the region, much will be expected from China – the brand of leadership it wants to showcase and the kind of attitude it will display in handling disputes, especially with its immediate neighbors.
In sum, given the character and nature of the WPS dispute, it is less likely that an enduring solution will be anchored on a legal one where the possibility of a clear winner and a clear loser will be produced and where interests of other relevant parties may not be taken into full consideration. Rather, the solution may be more political and diplomatic, something that can be drawn from confidence-building and negotiations where attempts to balance interests and exchange concessions may make for a more durable peace.
This article was also published at APPFI.
