• Beyond the Arbitration Panel decision

    4

    The victory of the Philippines in Round 1 of the compulsory arbitration case it brought against China, although partial because not all the points raised by the Philippines were admitted, has made many optimistic about the final decision of the Arbitration Panel. But given China’s position not to participate in and recognize the outcome of the case, a favorable decision of the panel may prove to be of little more than academic interest. And given that it is inconceivable that the Philippines would go to war, even if backed by its superpower treaty ally, to persuade China to accept a favorable decision, we may rue the day that when the road forked in two directions the Philippines chose the way it did, notwithstanding the trouble and expense entailed.

    In fact the choice was not between good and evil. The positions of the Philippines and China have one thing in common: they were both rules-based. Those rules may apparently not be identical but there is nothing in heaven or earth conferring on any of them an order of importance or preference. The Philippines considers the UN Convention on the Law of the Sea (UNCLOS) and specifically the convention’s provisions on maritime jurisdictional entitlements as the primary source of the rules . On the other hand, China’s proposition to deal with the conflicting claims in bilateral negotiations is in keeping with conventional international law and customary diplomatic practice. The United Nations Charter in Chapter VI on the Pacific Settlement of Disputes indeed suggests negotiation first in an enumerative list of recources.

    While the said list is not meant to be a consecutive order of precedence or priority, arbitration and resort to regional agencies or arrangements, approaches pursued by the Philippines, are down the list. The UNCLOS itself , under Part XV Settlement of Disputes, Section 1 General Provisions, Article 283, provides “the Parties to the dispute (concerning the interpretation or application of this convention) shall proceed expeditiously to an exchange of views regarding its settlement by negotiations (or other peaceful means).”

    The Philippines’ position invoking the UNCLOS and Part VIII (Regime of Islands) at the very outset is tantamount to setting a precondition to the process of resolving the dispute peacefully. What a strange negotiating tactic for a weak state facing a far bigger and economically and militarily superior next-door neighbor! Under customary and conventional international law, the preliminary step towards a peaceful resolution of a dispute is consultations or exchange of views, only after which may substantive issues be placed on the negotiating table. In effect, the Philippines has chosen to put the cart before the horse.

    In fact, UNCLOS itself provides that its compulsory arbitration process must be preceded by consultation or exchange of views. And in fact the Philippines had to show it had engaged in such exchanges “exhausting almost all political and diplomatic avenues for a peaceful negotiated settlement.” However, it is noteworthy that this Philippine assessment of the results of those exchanges was at variance with that of the Chinese, according to which “they made some positive progress.”

    Facing criticism that the Philippines’ recourse to unilateral arbitration was bound to yield no practical results, the Philippine side justified its action by saying a favorable decision by the arbitration panel would enable the Philippines to negotiate from a position of strength and a high moral ground when it pursues the various elements of its Triple Action Plan.

    The TAP is a grand design that would take more time than the Deng Xiaoping formula of leaving the territorial sovereignty question to the next generation to resolve. The endgame of getting a tribunal to resolve the territorial sovereignty issues in the South China Sea belongs, alas, to the realm of fantasy as all existing tribunals trying those issues require two to tango.

    Indeed the recourse to international tribunals that the Philippines has appeared to have adopted as a policy could be seen, at least from the timing, as precipitating the actions of China to reclaim and occupy the South China Sea features in dispute.

    A review of Philippine policy on the South China Sea is opportune with the election of a new administration. Given that the policy of the outgoing administration had not yielded and does not promise the results of a peaceful and productive relationship with China that the Filipino people must in all likelihood desire, the next administration cannot simply stay the course, even if the same political party as the incumbent wins the election. It is necessary to conduct an internal assessment of the actions taken by the outgoing administration to dispose of unnecessary and undesirable policy baggage for a clearer view of what future steps to take that would conduce to a more beneficial and constructive relationship with China.

    The way to the future can only be through bilateral negotiations. The approach should not be interpreted as acceding or surrendering to the “demand” of China as it is also rules-based. This must start with a bilateral exchange of views or consultations toward negotiations, eschewing the temptation to bring in at the initial stage substantive aspects of the dispute. It may not be necessary to bring those substantive aspects at all through the entire length of the journey in the face of the willingness of both parties to consider joint development undertakings .

    It may be useful to recall that the Philippines and China had once undertaken negotiations resulting in the tripartite Joint Ocernographic Marine Scientific Research Expedition in the South China Sea. Analysts have deplored the Philippine withdrawal aborting JOMSRE-SCS as a huge mistake. The Philippines gave as an excuse likely disagreement over provisions of the Philippine Constitution on national patrimony and the exploitation of natural resources, an excuse that has become untenable with the clamor for amendment of these provisions gathering a critical mass. Anyway, it was not impossible to overcome those obstacles through creative production-sharing arrangements. Revisiting the JOMSRE-SCS may be called for in the future.

    The JOMSRE-SCS followed the initiative of the late President Deng Xiaoping to “leave aside the issue of the Nansha islands for a while. We should not let this issue stand in the way of China’s friendship with the Philippines and with other countries.” The Deng Xiaoping formula posits as first element that the sovereignty of the territories concerned belongs to China and to set aside the dispute does not mean China is giving up its sovereignty. China’s asserting this sovereignty at the start is not meant to deter negotiations. The other elements of the formula are as follows: When conditions are not ripe to bring about a thorough solution to the territorial dispute, discussion on the issue of sovereignty may be postponed so that the dispute is set aside. The territories under dispute may be developed in a joint way. The purpose of joint development is to enhance mutual understanding through cooperation and create conditions for the eventual resolution of the territorial ownership question.

    The current President of China Xi Jinping has apparently not abandoned the Deng Xiaoping formula. To calm tensions brought by the dispute over islands in the Sea of Japan, China and Japan prior to the 2014 APEC Summit set up a Friendship Committee, composed of non-politicians from both countries, that acts as advisory body to both Prime Ministers. For a similar purpose, China sent feelers through the visit of a high-ranking member of the Communist Party of China “to enhance mutual trust, build consensus, and boost progress of China-Vietnam relations.”

    An immediate way of moving forward is written in the UNCLOS. An active obligation of all States Parties but is particularly relevant among countries surrounding the South China Sea as a semi-enclosed sea is maritime cooperation, including cooperation in the management of fisheries resources, the preservation and protection of the marine environment and biodiversity, marine scientific research, and safety and security of navigation, and regional ocean governance in general. A recent development that could jumpstart fisheries cooperation is the interest generated with regard to the establishment of a Regional Fisheries Management Commission. The Philippines must seriously consider taking a leading role in this joint project.

    Opportunities have not been wanting in recent times for the Philippines and China to reconnect with each other despite competing claims in the South China Sea, but they have been missed perhaps through a singular focus on resolving those claims by arbitration.

    During the visit of Chinese Foreign Minister Wang Yi to Manila in November last year, another window was opened yet again. The two sides agreed on resuming their regular Senior Officials consultations. It is the turn of the Philippines to host them but China had not responded to the invitation of the Philippines since the filing of the arbitration case.

    With this consultative mechanism reactivated, the concerned officials will hopefully go the distance to bring fresh dynamism to relations between the two countries.

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    4 Comments

    1. The only way China can be contained is to destroy its economy. Pull-out of all investment by the rich West and Japan can bring China on it’s knees. The bully then goes back to its former hermit kingdom: poor and powerless. It was only after Communist China embrace an open economy to the world coupled with low wages during the time of Den Xiao Ping did China became what it is now. Bull-headed and stubborn. China;s only friend is North Korea.

    2. What’s to arbitrate when there’s only one party? The Bilateral exercise would have produced an agreement that both parties see the need for arbitration.

    3. Mariano Patalinjug on

      Yonkers, New York
      11 March 2016

      It is rather late in the day for Jaime J. Yambao, in this Commentary of his in the Manila Times of 11 March 2016, to suggest that the Philippines should opt for “Bilateral Negotiations” with China, instead of bringing a territorial-dispute case against China with the UN Permanent Arbitral Tribunal on the Law of the Seas [ITLOS] in The Hague.

      As that trite and old saying goes, “The die is cast” for the Philippines. Or as Julius Caesar would have it, “I have crossed the Rubicon.”

      There is no turning back for the Philippines. The Arbitral Tribunal, as Mr. Yambao may already know, has already acquired jurisdiction over the case in oral arguments in which the Philippines participated–and is expected to come down with a ruling by middle of this year.

      I need only comment–as an academic exercise– that China’s precondition for “bilateral negotiations” with the Philippines is that the Philippines accept China’s claim of SOVEREIGNTY over those disputed territories in the West Philippine Sea which the Philippines asserts, correctly, are parts of its territory under International Law [UNCLOS]. I daresay that Filipinos are not that stupid. Once the Philippines accepts Chinese sovereignty over those disputed islands, China would then have the perfect right to drive the Philippines out of these disputed islands! And do so legally!

      The other comment I want to make on “bilateral negotiations” is that China is an 800-pound gorilla compared to the Philippines which is just a 5-pound chihuahua. You can imagine how easy it would be for that gorilla to smash the chihuaha between its thumb and index finger–metaphorically speaking, of course!

      MARIANO PATALINJUG
      patalinjugmar@gmail.com

      • Neither are the Chinese or Vietnamese that stupid to accept Philippine sovereignty in the South China Sea that PNoy has renamed West Philippine Sea just a few years ago.