A recent poll purports to show that there is a huge domestic opposition to Philippine President Rodrigo Duterte’s “soft” approach to China supposedly gathering steam. If this is an accurate assessment of the “will of the majority” — and — 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 III, 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 Philippine President Rodrigo Duterte abruptly pivoted Philippine foreign policy away from the US and towards China. Duterte did not try to take immediate advantage of the panel’s ruling and instead forged a positive relationship with China gaining its potential economic largesse. But this policy shift has outraged international and domestic legal idealists as well as Philippine Americanophiles and self-styled “patriots,” 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 are its alone.
But China disagrees. It refused to participate in the arbitral proceedings or to accept the result. That means that China’s 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 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 US — is likely to physically come to its assistance against China. Moreover, Duterte may have calculated that the US 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 US 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. The result so far has been continued access to most of its fisheries for Filipino fishermen and the possibility of “joint development” of any oil and gas. Meanwhile his administration has continued to protest China’s actions diplomatically. Perhaps it does so too quietly or meekly for the pride of the 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.
Prominent in the opposition to Duterte’s South China Sea policy are former Foreign Affairs Secretary Albert del Rosario and current Supreme Court Justice Antonio Carpio, 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 prior recognition and implementation of the arbitration decision and Philippine sovereignty over resources and some artificially built up features by China on the Philippines’ continental shelf would violate the Philippine constitution. This is likely a non-starter for China. The opposition also says 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 from the opposition. They seem to fall into three categories.
1. The Duterte administration should reverse course and re-pivot towards the US seeking its protection to counter China’s aggressive behavior and help it “enforce” the arbitral ruling.
Doing so would be risky. The US may not help, and China might become even more aggressive towards the Philippines, and other claimants as well. Even if the US did help at least politically, it could mean that the Philippines would be surrendering its new-found and hard won foreign policy independence and submitting to a neo-colonial relationship with America. So this could be like leaping “out of the frying pan into the fire.” Indeed, whether intentional or not, this would greatly benefit the US in its seminal soft and hard power struggle with China for regional dominance and would thus likely be supported by it.
Perhaps the only other viable option is to maintain the Philippine position and hope for a future China to behave more in concert with existing international law.
2. 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. It threw out its former colonial master and then defeated a superpower. In 1979 it fought China to a standstill in a bloody border war. But even with this reputation and political links, Vietnam was unable to successfully stand up to China in the South China Sea. It 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.
3. 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 in the UN General Assembly (UNGA) that China abide by the arbitration ruling. He also suggests entering into a 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. He further suggests that the Philippines should campaign among Southeast Asian countries to make explicit that 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; and that it should lobby the US to make such construction a trigger for invoking the US-Philippine Mutual Defense Treaty.
One particularly dangerous proposal is to send to patrol Scarborough Shoal in the hope that China’s vessels will attack the Philippine ships so that it can then invoke the Philippines-US (MDT). This proposal ignores the fact that the MDT provides that in such a scenario, the two would “consult” and that such an “attack will be acted upon in accordance with their constitutional processes.” The US would probably use this clause to prevaricate and evade any military response. Moreover, if the Philippines provoked such a clash, it would be using “coercion” which is prohibited by the UN Charter. China would likely not attack a Philippine navy vessel but instead use its civilian militia to counter its presence by blocking and harassing it.
Another probably futile proposal is to send a survey vessel to Reed Bank and if Chinese vessels run it off, 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.
The opposition seems to cling to the hope that unified domestic Philippine protest and international opprobrium against China’s policies and actions will make it 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
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 “redline” for construction on Scarborough Shoal. The US did not back it militarily in its standoff with China there in 2012 and is not likely to do so in 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 continued economic deprivation and 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.
However, at least one of 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 is 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.
Perhaps the only other viable option is to maintain the Philippine position and hope for a future China to behave more in concert with existing international law. In the meantime, practical arrangements could be initiated.
There are no perfect options. The two schools of thought should meet and discuss possible “middle” ways to resolve this conundrum rather than just continue preaching to their respective “choirs.” This would be better than allowing the issue to split the Filipino political class to the core. Doing so is domestically dysfunctional and could be counterproductive because it provides opportunity for either China or the US to interfere in the Philippine political system. All concerned should not “make perfect the enemy of the good.”