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Does A Foreign ‘Expert’ Have The ‘Solution’ To The Philippines Quandary With China In South China Sea? – Analysis

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Most observers of South China Sea issues could not help but notice the recent public exchange between Bill Hayton, an “expert and scholar on the region”, and the Foreign Minister of the Philippines, Teodoro Locsin Jr. https://news.abs-cbn.com/spotlight/09/22/19/the-face-of-defeat-s-china-sea-scholar-urges-ph-to-raise-arbitral-win-before-un  The exchange focused on what the Philippines should do regarding China’s policies and actions in the South China Sea.  Hayton, a relative newcomer to these issues, is sure he has the answer.  ‘The Philippines should stand up to China.’ But his ‘solution’ is both arrogant and—according to Locsin—”ignorant”.

Hayton argued that “Manila has many friends all around the world.  They are willing to help.”  But one might ask, ‘Really – in what way – with more words?’  Where were these “friends” when China built bases on low tide features on the Philippines continental shelf, intimidated its contracted oil exploration vessel, drove its fishermen away from Scarborough Shoal, and elsewhere, and ignored the international arbitration decision in the Philippines favor?

He said ‘you have international law on your side.”  But Hayton does not seem to realize that international law can be as Locsin said, “Just a scrap of paper.”  It is supported and employed by the major powers like the U.S. and U.K. when it is convenient –and opposed or ignored when it is not.  For the U.S., think Nicaragua https://en.wikipedia.org/wiki/Nicaragua_v._United_States or the Law of the Sea Convention itself https://thediplomat.com/2017/04/do-us-actions-in-the-south-china-sea-violate-international-law/; for the UK, think its most recent transgression – Diego Garcia/the Chagos Islands case. https://thediplomat.com/2019/03/americas-golden-opportunity-to-demonstrate-its-support-for-international-order/ 

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.   As Locsin said “China’s influence cannot be countered.  Anyone who thinks different is ignorant.” 

Hayton asked rhetorically, “What more does the Philippines need?”  But again, one might ask ‘Need — for what?’– a confrontation that will likely accomplish little for the Philippines?  Indeed, according to Gregory Polling, a well-known critic of China’s behavior as well as the Philippines’ unwillingness to stand up to it, the likely “alternative [to a deal] would be to prepare for another years-long slog of rising military tensions, sporadic clashes, and diplomatic naming and shaming with no guarantee of successful resolution.” https://www.philstar.com/headlines/2018/01/26/1781616/us-think-tank-expert-south-china-sea-diplomatic-breakthrough-unlikely

Of course like foreign ‘experts’ the world over, Hayton will not have to bear the responsibility for the consequences engendered by implementing his proposal.  

Locsin explained that ‘President Duterte fears for his people in a war over the South China Sea’. https://www.gmanetwork.com/news/news/nation/691669/duterte-would-america-risk-a-war-to-defend-phl-interests-in-south-china-sea/story/  Indeed, Duterte foresaw the likely dire consequences of immediately pressing the issue and decided the costs to the Philippines and the Filipino people 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.  Meanwhile, his administration has continued to protest China’s actions diplomatically, although apparently it does so too quietly or meekly for Bill Hayton and the pride of purists in the domestic opposition.

Hayton and the leaders of the domestic opposition to Duterte – – like former Foreign Minister Alberto del Rosario – – want the Philippines to bring the issue to the UN General Assembly (UNGA) to embarrass China.  But what practical difference would it make to bring the issue to the UNGA?  China is a permanent member of the UN Security Council, with a veto – and has already ignored an international arbitral decision against it.  Even, if – and that is a big “if” – the UNGA were to pass a resolution condemning China’s behavior, it cannot be enforced.  It is naïve to think that such a move would do anything for the Philippines but make relations and negotiations with China much more difficult.

Hayton also said the Philippines “has plenty of options between pointless war and abject surrender.”  Such options were not elaborated in the press reports.  But another severe Duterte critic, Philippines Associate Supreme Court Justice Antonio Carpio, has proposed several alternatives. https://globalnation.inquirer.net/177928/sc-justice-carpio-to-duterte-here-are-non-war-options-to-enforce-wps-arbitral-ruling They are as unrealistic and would likely be as –or more–counterproductive than taking the issue before the UNGA. 

Let’s look at some of these more aggressive ‘alternatives’ that might be employed by a Philippines ‘standing up’ to China.

1.     Carpio proposes that the Philippines be more aggressive in defending its rights sending its Coast Guard vessels “to drive away foreign poachers and assert our sovereign rights” over resources.  This would obviously lead to incidents and confrontations that the Philippines Coast Guard would be unable to handle.

2.     Carpio also proposes that the Philippines send its own Navy to join US FONOPs to assert its rights under the arbitral ruling. Sending the military into an area fraught with territorial disputes is to invite a military confrontation and a conflict which the Philippines cannot hope to win.  

3.     Carpio further proposes that the Philippines could “encourage the Freedom of Navigation and Overflight Operations” (sic) of the U.S., U.K., France, Australia, Japan, India and Canada in the South China Sea.”  First of all, only the U.S. – and the U.K. , once have engaged in US defined Freedom of Navigation Operations (FONOPs) publicly challenging particular “illegal claims” in the South China Sea, especially those of China.  Warships of the other named counties have sailed through and even conducted exercises in the South China Sea.  But China has never challenged passage that pays “due regard” to its laws and interests.  To call these FONOPs is to misunderstand the issue.

Moreover, for the Philippines to “encourage” US FONOPs would be hypocritical and politically counterproductive since the U.S. uses FONOPs to frequently challenge  the “excessive” maritime claims of its fellow ASEAN members as well as those of the Philippines including its excessive baselines and its claim of archipelagic waters in the Sulu Sea as internal waters.

4.     Finally, Carpio recommends that the Philippines government “support private sector initiatives to enforce the arbitral ward.”  But China has a far superior economy and political – economic leverage that it can use against the Philippines.  The Philippines will surely lose such a contest.

Apparently Carpio– and perhaps Hayton –hope that the implementation of some of these confrontational suggestions will draw in the U.S. politically, and if necessary, militarily, to defend it. https://www.gmanetwork.com/news/news/nation/709314/carpio-china-may-use-sea-code-of-conduct-to-replace-un-dispute-mechanism/story/ The latter is wishful thinking.  The U.S. –especially under “America First” President Donald Trump – is highly unlikely to risk war with China for the Philippines – despite whatever assurances have been given.

Most of these proposals are unrealistic and would likely lead to intimidation by China if not outright confrontation and possible subjugation. The Philippines would suffer greatly both economically and diplomatically. 

Duterte and his like-minded supporters see the situation as requiring deft hedging and the art of delay until a time more ripe for resolution of the issue within existing international law.  They do not see the need for immediate and overt action. They assume that the arbitration panel’s ruling is now part of international law and is not likely to change easily or quickly.  So for the time being, Duterte is trying to negotiate shared access to the resources. The result so far has been continued access to the fisheries for Filipino fishermen and the possibility of ‘joint development’ of any oil and gas on terms consistent with the Philippines’ Constitution. More importantly, Philippine-China relations—including economic relations—remain good. The alternative to Duterte’s policy – – trying to implement the arbitration decision at this juncture– would likely result in no access to the Philippines own resources and crippling economic, political and perhaps even military retribution by China.

The point is that there really are no realistic alternatives and Duterte’s approach remains the least dangerous response to a bad situation – at least for the time being.



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Mark J. Valencia

Mark J. Valencia

Mark J. Valencia, is an internationally known maritime policy analyst, political commentator and consultant focused on Asia. He is the author or editor of some 15 books and more than 100 peer-reviewed journal articles and Adjunct Senior Scholar, National Institute for South China Sea Studies, Haikou, China

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