Choices in the South China Sea

4

The Arbitration Tribunal of the Law of the Sea resolved bilateral issues between the Philippines and China, especially confirming that the Philippines has sovereign rights over a 200-mile EEZ and Continental Shelf in the South China Sea/West Philippine Sea pursuant to the UN Convention on the Law of the Sea. The Tribunal enjoyed jurisdiction over the case because the Philippines was careful not to raise questions of sovereignty over territory.

Now our country needs quiet negotiations in invoking the rule of law, based on the UN Convention on the Law of the Sea, to which China is also a contracting party. The decision of the Arbitration Tribunal is final and binding but the enforcement of the ruling is based on the good faith of China to comply with its obligation under UNCLOS to respect the ruling.

Bilateral talks. President Fidel V. Ramos has described his visit to Hong Kong as a dialogue with friends to seek ways to establish peace, harmony and goodwill, and not a part of the bilateral talks with the Chinese government. The formal talks are needed with the Chinese government for China to refrain from continuing with activities that contravene our rights, such as preventing our vessels from fishing in our EEZ and our fishermen from pursuing their livelihoods by traditional fishing at Scarborough Shoal, as well as from interfering with our survey and exploitation of the resources of the Reed Bank.

The more sensitive discussion will be to arrive at a way for China to end its occupation of Mischief Reef, which is a low tide elevation forming part of our Continental Shelf, and which China has converted into an artificial island. Asking China to end its occupation of Scarborough Shoal, which is not part of the Spratly Islands, will need more goodwill on both sides but this issue was not covered by the Arbitration ruling.


Multilateral talks needed over Spratlys. The bilateral talks between the Philippines and China may begin with matters outside the Arbitration ruling, which will allow the talks to proceed with pragmatism and goodwill, as suggested above by PFVR, including a reminder of our geographical and historical ties, our cultural and commercial relations, our ties of kinship.

The scope of the bilateral talks may widen and include preliminary discussion of solutions to the territorial problem of the Spratlys, such as the idea of a maritime park that will benefit all the coastal states. These bilateral talks, however, will not be able to resolve the dispute over the Spratlys because more than two countries claim sovereignty over them. Thus, the issue of sovereignty over the Spratlys requires multilateral talks.

Asean and China have recognized that this dispute affects the peace and stability of the region and should be resolved peacefully. To this end, Asean member countries and China signed the Declaration on the Conduct of Parties in the South China Sea in Phnom Penh on November 4, 2002.

This Declaration includes the statement in its final Paragraph 10 that “The Parties concerned reaffirm that the adoption of a code of conduct in the South China Sea would further promote peace and stability in the region and agree to work, on the basis of consensus, towards the eventual attainment of this objective.” Unfortunately, the Code of Conduct still has to be negotiated and adopted in multilateral talks between Asean and China.

Asean reaction to arbitration ruling. The Asean Foreign Ministers at their recent annual meeting held in Vientiane last July issued a Joint Communique, which took note of the UNCLOS arbitration ruling and the tense situation in the South China Sea in the aftermath of the decision: “We remain seriously concerned over recent and ongoing developments and took note of the concerns expressed by some ministers on the land reclamations and escalation of activities in the area, which have eroded trust and confidence, increased tensions and may undermine peace, security and stability in the region.” The Foreign Ministers further declared: “We emphasized the importance of non-militarization and self-restraint in the conduct of all activities, including land reclamation that could further complicate the situation and escalate tensions in the South China Sea.”

The Asean Foreign Ministers reaffirmed their “commitment … to the peaceful resolution of disputes, including full respect for legal and diplomatic processes, without resorting to the threat or use of force, in accordance with the universally recognized principles of international law, including the 1982 UN Convention on the Law of the Sea.” The reference to legal and diplomatic processes, principles of international law and the UNCLOS is a code to refer to the arbitration tribunal’s decision.

China–United States rivalry. While the Philippine filing of the arbitration case against China had increased tension between the two countries, the major anxiety for many analysts is having an accidental skirmish between the Chinese and United States navies and air forces in the South China Sea and the escalation of the conflict that could follow.

The US has opposed China’s claim of sovereignty over the area covered by China’s announced nine-dash line, and is concerned about the possible militarization of certain reefs in the high seas, which China denies. China’s recent activities in the South China Sea is understood as a reaction to the US policy of “pivot to Asia,” which China perceives as a policy directed at containing China. The US has made the challenge to China’s claim of sovereignty over a part of the high seas by sending vessels and aircraft through the area in the exercise of freedom of navigation and overflight in the high seas.

While the Philippines is bound by the provisions of the UNCLOS, the Philippines does not take sides on the perceived geopolitical conflict between the US as the dominant superpower in the world and China as the rising star in the Pacific region. Similarly, the US has repeatedly announced that it does not take sides on the issue of sovereignty over the Spratlys.

The Philippines has a policy of maintaining friendly relations with all countries in accordance with the declaration in the Philippine Constitution that the Philippines “adheres to a policy of peace, equality, justice, freedom, cooperation and amity with all nations.”

Philippine independent foreign policy. The Philippine Constitution also provides that “The Philippines shall pursue an independent foreign policy. In its relations with other states the paramount consideration shall be national sovereignty, territorial integrity, national interest and the right to self-determination.”

We have observers who think that Philippine foreign policy is tilted in favor of the US. The Philippines’ defense alliance with the US, and its recent agreements relating to Visiting Forces and the Enhanced Defense Cooperation Agreement (EDCA), are perceived as showing this.

Recently, the Supreme Court ruled with finality on the constitutionality of EDCA, which the high court interpreted as an executive agreement implementing the Mutual Defense Treaty (MDT) and the Visiting Forces Agreement. The Supreme Court noted that it is the Executive Department that is given the responsibility to decide on the wisdom of entering into the agreement.

The Philippine government has maintained that the Philippines needs the MDT and its implementing agreements because, among other reasons, they provide a shield for our armed forces in the Kalayaan Islands and our marine contingent guarding our Second Thomas Shoal. Under the MDT, the United States should come to the aid of the Philippines in case Philippine armed forces are attacked. The Philippines notes that the MDT is only a defense agreement and is not aimed at any country at peace with the Philippines.
The Arbitration ruling defining the extent of the Philippines’ EEZ and Continental Shelf in the South China Sea and the Supreme Court ruling on the constitutionality of EDCA begs the question of whether the US under the MDT is committed to the defense of our EEZ and Continental Shelf, as the extension of our metropolitan area.

Multipolar world and ZOPFAN. China may be at the crossroads of deciding whether to test the policy of “might is right” or be more accommodating and law-abiding. In 1979, China engaged Vietnam in a war to teach Vietnam a lesson. The lessons of the Second World War have shown that economic might is more relevant and influential than military power.

Germany is now seen as the leader of the European Union while Japan subsequently attained its war objectives by peaceful means.

A policy of militarization of the Spratlys may prove to be unwise for China because this raises the level of insecurity among her neighbors. Indeed, many Asean countries have increased their military expenditures and strengthened their navies and air forces. They have seen the value of having the presence of a Superpower which does not pose as much as a threat because the US is outside the region. The Asean countries may be pushed firmly into the arms of the Superpower and the continuation of the Unipolar World.

China may decide to look at other security options. Instead of acting like a colonial power against the advice of Deng Xiaoping, China could decide to be the Good Neighbor and observe the rule of law, which protects all nations big or small. In line with its objective of reverting to a Multipolar World, China could follow a strategy of supporting the emergence of a strong and influential Asean, which is neutral and non-aligned with any Great Power. Asean, after all, has shown that it has the potential of becoming a regional power and one of the poles in a Multipolar world.

China previously declared that it would respect and support the Asean vision of a Zone of Peace, Freedom and Neutrality (ZOPFAN). The revival of the vision of ZOPFAN during bilateral or multilateral talks could be a long-term solution for achieving lasting peace and prosperity. A precondition for ZOPFAN would be resolving the territorial disputes in the Zone. There would be need for confidence building measures to restore trust and confidence on all sides. The establishment of ZOPFAN would need the cooperation of the US. ZOPFAN would remove the region from Great Power conflicts and could make China feel safer from intrusion by outside powers.

A scenario like this is worth striving for. We should work with friends to bring countries together to achieve lasting peace and greater prosperity in our region based on the rule of law.

Note: Ambassador Jaime S. Bautista is a retired career diplomat whose last diplomatic assignment was Ambassador to Russia, and concurrently to Belarus, Ukraine, the three countries in the Caucasus and the five Central Asian states. He was assigned to the Philippine Embassy in Beijing from 1976-9 and acted as Charge d’ Affaires a. i. at various times. He is professor of law at Ateneo de Manila Law School and Philippine Christian University.

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4 Comments

  1. One-sided-arbitration on

    There is no intention to mean any disrespect other than believing that facts and truth is best for all in long-term. The author’s opening statement: “The Arbitration Tribunal of the Law of the Sea resolved bilateral issues between the Philippines and China” is a mis-statement of the jurisdiction that made the decision.

    To be accurate, it is an arbitration tribunal claimed to be formed based on the UNCLOS Annex VII. It should not be confused with the International Tribunal of the Law of The Sea (ITLOS) that is affiliated with the United Nation. The ruling (or technically better to call them legal opinion?) from the 5 member arbitral tribunal that claimed to have been formed under the UNCLOS Annex VII by Mr. Yanai, the then President of ITLOS. IT IS NOT A RULING FROM THE ITLOS THAT HAVE 21 ELECTED MEMBERS! (Please see the many discussions made on this link: http://nationalinterest.org/blog/the-buzz/chinas-big-south-china-sea-dilemma-17097 )

    Mr. BAUTISTA has given the 5 ARBITRATORS much too much “legal authority” when they have knowingly violated the protocols that they have known since it started 30 years ago.

    There are at least two major sections that must be overcome among the two Parts in UNCLOS that relate to “Settlement of Disputes”. PART XI. SECTION 5: SETTLEMENT OF DISPUTES AND ADVISORY OPINIONS and PART XV: SETTLEMENT OF DISPUTES. Evening when we get to Annex VII, there are still the Article 1, 2 and 3 in constituting the proper arbitration arbitral tribunal that was not followed when the then President of ITLOS made his one man selections.

    (For example, Article 3-e:……. The appointments referred to in this subparagraph shall be made from the list referred to in article 2 of this Annex within a period of 30 days of the receipt of the request and in consultation with the parties. ) Mr. Shunji Yanai, then President of ITLOS decided to ignore and skirt all these protocols and appointed the members of the tribunal by himself with Philippines without consultation with China.

    Mr. Yanai, in his three year term, perpetuated THE ONLY TWO one-sided-arbitration (with the arbitral tribunal formed by one party) between two state parties concerning territorial disputes in the history of UNCLOS: On 22 January 2013, Philippines v. China and On 4 October 2013, Netherland v. Russia. Both cases are in violation of Article 1, 2 and 3 of Annex VII of UNCLOS. The Netherland v Russia was to embarrassed Russia on Green Peace activists that no one expected Russia will hold them for any length of time. The case of Philippines v. China is really intriguing and will be an embarrassment for all for many years to come.

  2. Interesting wishlist for the PH. I doubt China will roll over and accept the Hague Ruling like a little student.

    The more likely outcome is that China will withdraw from UNCLOS and reclaim most of the SCS. The culprit here is the US and its puppy dog the PH.

    Funny how the US and Japan ignored the Cairo Proclamation and the Potsdam Declaration and passed control of the East China Sea islands to Japan.

    China will go to war on this, but more likely in 12-24 months time when China and Russia will form a defense pact. God help the white supremists from the US and Its junior mouthpieces.

    • One-sided-arbitration on

      I think it is a bad idea for China or any countries to quit UNCLOS. While it is true that it is difficult to find any benefit for the big 5 countries in the UN in joining and remaining in UNCLOS, by joining and remaining still represents their commitment and intention to peaceful resolution of disputes.

      I was surprised and of course happy to observe the leadership in China that have demonstrated maturity and wisdom in managing their own development and working with the rest of the world. No unnecessary actions beyond strong, albeit sometimes unpleasant statements in the last 30 years.

      I think the current Philippines President also demonstrated strong leadership for “Philippines First” independence and maturity in managing internal and international disputes. Give him the 6 years, I think Philippines will see dramatic growth.

      As for the disputes, everyone knows each side has to give and take. It will be unsightly for China to take on Philippines physically in any strong actions beyond keeping any mishap being blown out of proportion.

  3. Such an insightful and well written piece, sir. Thank you.
    Sadly, the Chinese government has placed itself in “a place of no return”. It has programmed its people to believe that the whole sea, within the nine-dashed-line, belongs to China in the name of historic rights. To them this supersedes any international laws inlcuding the UNCLOS, or any international ruling such as the one that the Philippines has won. China’s PLA has been acting with double standards. They uphold and even enforce international laws only if they suit them and denies the laws if they go against them. With its land grabbing and reclamation programs, China has demonstrated its might and strength. Yes, she has indeed attained her dreams of becoming a superpower, but if these current events continue to become part of our history, she will never become a great country. China is heading into another world of catastrophy. It a choice to fight her own people or the rest of the world.