Can DU30 save China’s face?

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AMID the flurry of self-congratulations on our winning the arbitral case against China before the UN Permanent Court of Arbitration at The Hague, the most important question for us now is how to make the ruling enforceable on Beijing. Official statements from our allies and supporters of the Philippine position insist that the ruling is binding upon both parties, but China has made it plain that it never recognized the process from the very beginning, and, therefore, could not accept its results. We, Filipinos, knew this all along: the only thing that would have surprised us was if Beijing had had a change of heart and accepted the ruling in the end. But this did not happen.

What the Court said

The Court has ruled that the Philippines has “sovereign rights” over Panganiban or Mischief Reef, Ayungin or Second Thomas Shoal, and Recto or Reed Bank off Palawan, but not over Panatag or Scarborough Shoal off Zambales, which is a common fishing ground for many nations where neither China nor the Philippines could prohibit anyone from fishing.

The Court also ruled that China has no “historic rights” to the waters within the so-called “nine-dash line” and that it has violated the Philippines’ “sovereign rights” to its exclusive economic zone by interfering with Philippine fishing and petroleum exploration, constructing artificial islands, and failing to prevent Chinese fishermen from fishing in the zone.


The term “sovereign rights” (over marine resources within one’s EEZ) does not mean “sovereignty” over, or actual ownership of, specific lands, islands or maritime territories. It is, therefore, not correct to say that the Court has ruled in our favor on the issue of sovereignty over or ownership of the disputed maritime features and territories. This is beyond the legal competence of the tribunal to rule on; it falls more within the jurisdiction and competence of the International Court of Justice, popularly known as the World Court, which rules upon disputes brought before it by the parties.

Victory purely psychic

Without an agreed mechanism to implement the ruling, our “victory” remains purely psychic. The arbitral process has set the government back by a princely sum just on the cost of lawyers and memorials; but the propaganda conflict which the ruling and China’s rejection of it threaten to generate could bring us closer to the jaws of war than to the arms of peace. Ugly rumors of war have already begun to circulate around Clark and Subic. Our foreign allies who had lined up behind our claim would like to press the propaganda advantage they believe they had gained against China both in the name of “international law,” and for their own geopolitical interests.

They are as eager to see China comply with a ruling it does not recognize, as they are to make sure that we do not soften up on China one bit. Not to be ignored is their effort to make sure that the Duterte government does not say the wrong thing about the arbitral “awards” at this time. Hours before the ruling came, visiting State Department Counselor Kristie Kenney, former ambassador to the Philippines, met with Foreign Secretary Yasay, Jr. precisely to ask the parties “to respect the ruling in the South China Sea dispute.” We are the principal party to the case, and we have just won the verdict; yet here we are, being asked by a third party “to respect” the ruling in our favor!

Superfluous message

Clearly, this message needed to be addressed to Beijing, which has rejected the process from start to finish; but isn’t it completely superfluous to address the same to the Philippine foreign secretary who represents the aggrieved party in the dispute? Kenney must have felt it necessary, after Yasay said a few days ago that he was ready to sit down for bilateral talks with Beijing on the possible joint exploration of resources in the disputed territories. That statement seemed to undercut the US basic position on the issue, and the entire rationale for the arbitration case. It must have disturbed Washington no end.

So Kenney came. She apparently felt Yasay could use a little mentoring (or micro-managing?) on what to say or do in the face of such a historic ruling. He is an honest and intelligent man, but he is a newcomer in his job, and the subject of foreign relations may still be a little foreign to him; he has not had to deal with anything half as delicate and sensitive as this one before. In the next few days we should see what lessons on South China Sea diplomacy have been shared or learned.

Two ways to go

Philippine diplomacy could proceed in either one of two ways. In the face of pressure from the allies, DU30 could allow himself to be borne by geopolitical currents and play hardball with China, according to the rules drawn by the US, Japan, Australia and the European allies whose interests may not necessarily be the same as those of the Philippines. Or he could follow his own instincts and insert his own game plan into the broad play of the major international powers. One is more complicated than the other, but nonetheless doable and worth doing.

The first one requires complete docility to our traditional allies. It merely entails a readiness to jump whenever the leader says “jump,” without asking from what floor. Some of our Presidents did not mind performing this number. But this is the opposite of what DU30 would like his presidency to be known for. In his own words, he would like to be a “leftist” President pursuing an “independent foreign policy,” i.e., not dependent on Washington.

The other option requires greater creativity, resolve and skill. This is what DU30 apparently envisions for himself. Thus, despite the Aquino government’s absolute refusal to consider talking directly with Beijing, DU30 has decided to take the bilateral approach even while awaiting the results of arbitration. DU30’s only mistake appears to be his sense of timing—he telegraphed his move days before the release of the ruling. This alerted the US and other allies on what he had in mind, and gave them the time and opportunity to mobilize their arguments against bilateral negotiations.

Saving China’s face

Be that as it may, if DU30 wants to negotiate directly with China, this could be the ideal time. Having just won the ruling, he could talk to them from a position of strength, without necessarily acting or sounding like a victor. He could show them his generosity by offering just and reasonable terms at a time when the morale of the Chinese government is probably at its lowest. He could show Beijing that he is not interested in winning any points for himself, but simply in laying to rest an unfortunate misunderstanding between two good neighbors whom neither geography nor history could separate. Indeed, he could save China’s face.

fstatad@gmail.com

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19 Comments

  1. citizenhongkong on

    UN Permanent Court of Arbitration at The Hague is not a Court but an Arbitrator only.

    The PCA is not a “court” in the conventional understanding of that term but an administrative organization with the object of having permanent and readily available means to serve as the registry for purposes of international arbitration and other related procedures, including commissions of enquiry and conciliation. The judges or arbitrators that hear cases are officially called “Members” of the Court.
    The public at large is usually more familiar with the International Court of Justice than with the Permanent Court of Arbitration, partly because of the closed nature of cases handled by the PCA and also the small number of cases dealt with between 1946 and 1990. Sometimes even the decision itself is kept confidential at the request of the parties. Many decisions and related documents are available on the PCA’s website. The court’s caseload has increased since then. Since the PCA is not a UN agency, the terms such as “UN tribunal” or “UN-backed tribunal” used in some media are not correct and they confuse the PCA with the UN’s ICJ.

    PCA’s official website https://pca-cpa.org/en/home/ confirms they are not a Court but an arbitration institution to provide arbitration services.

    Thus the so-called verdict issued by PCA shall be regarded as an investigation report for the reference of The Government of Philippines as the only Client in the arbitration process rather than a Formal Verdict which can only be released by a Court.

  2. And how about China’s mining occupation of the Philippines?

    As the Asia Sentinel reported on November 12, 2012 (“China’s Filipino Gold Rush”), “With an estimated US$1 trillion in untapped mineral resources in the Philippines, according to the Mines and Geosciences Bureau, Chinese mining companies, many of them operating illegally, have been exporting gold, nickel and other precious minerals out through the island country’s porous coastal ports, where there are no customs officials and plenty of bribable officials to turn their eyes the other way.”

    Our mineral resources are being used by China as feedstock to manufacture their military weapons.
    Philippines is China’s No. 1 source of nickel ore, and nickel super-alloys are a critical component in advanced jet engines and are used in the engines of 5th generation jet fighters of China, fighters jets which can or being used against the Philippines.

    Then why not the Philippine government responds by shutting down all nickel exports to China, and all the Chinese mining companies in the Philippines?
    This way may stop China in ignoring the ruling of UN-backed tribunal in The Hague and may as well consider backing off from WPS. Our natural resources will also be saved from being exploited by irresponsible mining.

  3. And how about China’s mining occupation of the Philippines?
    (globalnation.inquirer.net/59379/chinas-mining-occupation-of-the-philippines)

    As the Asia Sentinel reported on November 12, 2012 (“China’s Filipino Gold Rush”), “With an estimated US$1 trillion in untapped mineral resources in the Philippines, according to the Mines and Geosciences Bureau, Chinese mining companies, many of them operating illegally, have been exporting gold, nickel and other precious minerals out through the island country’s porous coastal ports, where there are no customs officials and plenty of bribable officials to turn their eyes the other way.”

    Our mineral resources are being used by China as feedstock to manufacture their military weapons.
    Philippines is China’s No. 1 source of nickel ore, and nickel super-alloys are a critical component in advanced jet engines and are used in the engines of 5th generation jet fighters of China, fighters jets which can or being used against the Philippines.

    Then why not the Philippine government responds by shutting down all nickel exports to China, and all the Chinese mining companies in the Philippines?
    This way may stop China in ignoring the ruling of UN-backed tribunal in The Hague and may as well consider backing off from WPS. Our natural resources will also be saved from being exploited by irresponsible mining.

  4. Mariano Patalinjug on

    Yonkers,New York
    15 July 2016

    I am sorry to say that the suggestion put forth here by former Senator and now Manila Times columnist FRANCISCO S TATAD, for President Rodrigo Duterte to INITIATE bilateral talks with China is far from being INSPIRED or WISE.

    I have to remind him that it is the Philippines which has won the territorial-dispute case against China, with the PCA ruling unanimously in favor of the Philippines, and ruling further that China’s “Nine-Dash Line” is illegal under International Law.

    Common sense, therefore, dictates that if should be China which should INITIATE talks with the victor, the Philippines–because it is the Philippines which now holds all “four aces.” If China takes this step, these should be what the Philippines has a right to ask China to do:

    1] Dismantle all of the reclamations and constructions it has done illegally on this maritime structures owned by the Philippines–at its cost;

    2] Restore all those maritime structures to their original pristine condition–at its cost;

    3] Pay appropriate and reasonable damages to the Philippines, the amount to be determined by a third international party; and

    4] Get out of those disputed Philippine territories pronto, without need for Philippine authorities to tell it to do so.

    MARIANO PATALINJUG
    patalinjugmar@gmail.com

  5. If China think he is fighting the Philippines for it’s territorial expansion with it’s fake & bogus nine dash line…. THEN THEY ARE TOTALLY WRONG…. they presumed that military power will subdue smaller nations … again they are wrong …. in economy all investors that invest in their country pulls out and totally zero trade for them …. what will they got … A BIG NOTHING …. and their economy will collapse because credibility wise they are going in that direction …. NO STUPID NATION (like Laos) will consider trusting them because a simple international rule they cannot follow even they are a signatory to it …. IF THE WORLD COMMUNITY DON’T TRUST CHINA ANYMORE …. WHAT WILL HAPPEN TO THEM …. SURE THEY WILL BE GOING BACK TO THE MIDDLE AGES…. SHAME TO THESE CHINKS….

  6. It is not an UN institution, the PCA is like a joke as an arbitration requires both parties’ presence to make its result valid.

  7. Amnata Pundit on

    If this were a game of chess, and it is actually, and I were in Duterte’s place, I will force Mrs Robredo to state her position regarding this latest development. If she is not with Duterte 100%, she should be kicked out of the cabinet. Do not forget, she is the trojan horse of you know who. And the no-brainer message should be repeated to all Filipinos a thousand times a day, “Peace with China is preferable to war with her.”

  8. dio san pedro on

    Corrupt previous Philippine government has made the country weak and so couldn’t defend itself against stronger better armed country like China. This is the first thing that the Filipinos should accept. China will never abandon what they have already created and spend billions on these artificial islands. And no one, not the Philippines or the USA can force the Chinese to leave. Mr DU30 can start bilateral talk with China knowing that whatever he can get out of it or however small is a win for his country. He can also use his popularity to convince the Philippine senate and congress to lease Pagasa to the US. Lease Pag-asa to the US for 100 years where they can built it up as one of their super base in the Pacific. This will be a perfect place for the US pivot to Asia. This will surely limit any countries expansionist move in the this part of the world.

  9. Joshua Schneider on

    A win for Barrack Obama and Hillary Clinton. Lets ask them to pay the bill as they were the fools pushing this for their own domestic agenda.
    As for us, what is the old saying about fool me once shame on you, fool me twice shame on me…

  10. ernie del rosario on

    It is totally not “obeyable” by China. As Roberto Tiglao says 5 superpowers traditionally ignore rulings from the PCA or the ICJ or the ICC. Save the fireworks and the confetti.

  11. This is a great a analysis! I totally agree. China as a big state with high egoism will not step down from international criticism. It is the best for the regional stability if The Philippines government could at least try to negotiate bilaterally with China. There is other alternative to deal with China, such as anti-China campaign worldwide.

  12. Chinese people have never felt the legitimacy of this so-called court and the suit itself, neither do they feel a bit of loss of morality because no matter from the legal, historical, cultural and political perspective, Nine-dash line is very much legitimate, the heritage from our ancestors and the corest of core of our national interest. It will never be changed by a court whose member represents no Asian culture, understanding about its geopolitics and whose palcement was engineered by a former Japanese ambassador to the US, an infamous right-wing politician. The whole case was prepared by American lawyers, and the court has no jurisdiction on national sovereignty which is the nature of the case.

    • Naidas Nobase on

      China said the Nine-dash line is legitimate. Legitimacy requires bases. For a country to proclaim this legitimacy, it must be ready to show proof that the Nine-dash line was in effect long before other countries laid claims to the disputed territories while using their own historical bases.

      China is now imposing the Nine-dash line in the China Sea through military might instead of justifying its existence and defending it in the proper fora.

      China wants bilateral talks. But then its military presence, almost unopposed in the high seas, gives it an undue leverage over any country across the table. Any country could only beg, but not win since the contested territories are already secured by China.

      Call it bullying, both in the high seas, and in the negotiating table.

      Did someone say China wants peace in the South China Sea? Well, peace means the territories are owned by only one nation. And that is China.

      Hi! Bu Hi!

    • No body has sovereignty over the high seas. Over 200NM from any land is for all citizen of the world. South China sea is not owned by China, likewise Indian ocean is not Indian and Gulf of Mexico is not of the Mexicans.

  13. The Philippines should seriously take a step back and evaluate its subsequent moves with probable alternatives. Here is a time when our best diplomats and economic minds should put together an action package that could perhaps bring about a win- win situation to all the countries involved. A multi- lateral talks among Asian neighbors is highly sought as compared to the involvement of other indirect stakeholders!

  14. ruben m dimaculangan on

    wise ang move ni mayor digong. una, kahit binding ito sa china dahil signatory siya sa UNCLOS nang 1996, nag-warning ang china na hindi niya io-honor ang resulta ng arbitration. ang maagang pagkakatawag ni mayor digong sa china na makikipag-usap siya bilaterally ay nakabuti pa nga dahil tanda ito ng goodwill. Wise ang move ni mayor digong dahil kilala niya ang china at siya nga ang nagsabi na hindi willing ang pilipinas na makipag-giyera kay Goliat. Nabasa ko sa isang book of jokes and kwnto ng 3 langgam sa harap ng elepante: minsan sinabi ng langgam sa 2 kasama na pipilayan niya ang kaharap na elepante. Sabi ng ikalawa, “hwag pare, nag-iisa ka”. Sambot ng ikatlong langgam, “Maghunos-dili kayo. Dapat tatlo tayo, bibigyan nating tatlo ng leksyon ang kumag na elepanteng iyan. All for one, one for all!” He he he he.

  15. francis liew on

    You are assuming that China is terrified at international pressure over the PCA ruling. Why? Does the current government in China and the second largest economy in the world looks as if it is terrified over international pressure? Even in the days of the Korean War when China was weak and prostrate after the civil war, it stood up to the Americans then controlling 50% of the world’s economy. I can tell you, china is not at all worried over the PCA rulings and the consequence of not abiding. XJP and the Chinese government had said as much. The PH winning over the case is just an expensive Pyrrhic victory. Much better Due30 goes cap in hand to Beijing to negotiate for a most favorable settlement. It is the best he can do. A small poor nation in a world of superpowers have no rights. The law is an A**. Don’t hope it can protect you.

  16. We have no fighting ships to counter the Chinese Navy………All Administration from Cory , to Fidel,To Erap,to Gloria, to Pinoy Aquino had done nothing erxcept corruption….In the end we do not have Strong Navy and Air Force….I think Digo had all the pain and head pain to the ass……..Big Problem………

    • ILVING TABIOS ZAMORA on

      Pinag dara-darambong naman kasi ni Marcos noon ang pera ng bayan kaya walang nangyaring pagbabago o pagpapalakas sa Sandatahang Pilipinas.