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!
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.