In the SCS, we must focus attention on Panatag and the formulation of a Code of Conduct (COC) in dealing with neighborhood bullies. We must put our archipelagic house in order.
The Philippines and other nations place great hope in a COC for the SCS to ease tension in the area and establish regional stability in the region. Such hope must be viewed in the context of the following realities:
First, China abhors any arrangement that will bind her to any legal obligations. That China enjoys a new-found economic, military and political/ diplomatic clout makes it more difficult to sell the idea of a code. There is rising nationalism in China, and the Chinese believe they are now the center of the world.
Second, ASEAN appears not as united and passionate in its advocacy of a COC than when we negotiated the Declaration of Code (DOC). ASEAN solidarity has waned and is now secondary to each country’s bilateral relations with China.
Third, for a COC to have added value to the Declaration of Code (DOC), it must have a mechanism for its implementation and if possible enforcement provisions. Without these, the COC will remain an unleavened bread on the table.
The challenge for the Philippines is to reassume leadership in drafting the COC as we did in negotiating the DOC. Then, we had almost plenary authority among the ASEAN members, to draft and craft (an approach to China). We established trust and confidence among senior officials of ASEAN and China and negotiated with transparency, even as we follow the two-step approach. We persevered even after China rejected our first draft. We talked and kept the issue alive at every opportunity and went beyond the regular ASEAN—China meetings. Incidentally, the new Chinese Foreign minister, Wang Yi, and new deputy Foreign minister, Fu Ying, were Chinese senior officials then. Success in negotiations is nurtured, not begotten.
Ultimately any DOC will depend on the good faith and political will of parties concerned. The DOC by itself could have been implemented had there been political will to do so. The Six Point principles by ASEAN and the ASEAN Statement on the tenth anniversary of the DOC will remain beautiful provisions on paper while China continue with its aggressive actions on SCS. We are playing into Chinese hands.
The Philippines should take some in initiatives under Part IX of UNCLOS on enclosed and semi-enclosed seas. It is time to explore a strategic framework for joint development in the area. Let us export Bayanihan to the SCS.
It is time to engage China. Filipino-Chinese business, which plays an increasing role in PH-China relations should be made to do more.
The decision to bring the SCS issue to arbitration and the establishment of the Arbitral Panel are positive developments for the Philippines. However, we should refrain from raising early and high expectation. China has rejected the panel. The Panel has yet to decide whether it will/can assume jurisdiction on the basis of our submission. Even if the panel determines it has jurisdiction, any decision /award will take time. I hope the Philippine submission contains a prayer for “Provisional Remedies” against actions and pronouncements of China on SCS. China is doing in SCS what Malaysia is doing in Sabah: exercising “ effectivities”. We must disturb/interrupt this exercise.
The Philippines should make it clear whether we are claiming WPS as part of EEZ. But DFA stated that PH is claiming Bajo de Macinloc as “separate island” under the principle of regime of island. But is it not a shoal, not an island or islet. If we are questioning the legality of the Chinese nine-dash line claims as basis of Beijing ownership, the ICJ, not the ITLOS or UNCLOS or arbitral tribunal, is the proper venue. If the arbitral tribunal will nevertheless assert jurisdiction and rule against China, she may reject such ruling ultra vires and not respect the decision. The demon lies on an apparent confusion of the PH claim.
I hope the secretary of Foreign Affairs was misquoted when he said in a Philippine newspaper that “our resort to the tribunal means that for all of the other nations in this community of nations, it removes the threat of not having freedom of navigation. That’s what’s good about this arbitration.”
Freedom of navigation is clearly provided for and guaranteed in the UNCLOS, with or without arbitration. There is even freedom of navigation in the EEZ because according to an UNCLOS provision, for purpose of navigation, the EEZ is considered as high seas.
Peaceful settlement of disputes, freedom of navigation, and adherence to generally accepted principles of international law are platitudes that angels and demons cite. We should not get too euphoric when nations cite these concepts in support of our position.
Without specific commitments of support, these are not yet achievements for Philippine diplomacy.
The incident in the Balintang Channel is the latest to bedevil PH Foreign policy and diplomacy. Up to now we don’t know the facts and we should refrain from saying or doing anything that will exacerbate the situation. Clearly Taiwan is behaving like neighborhood a bully, but this is not surprising because it is a province of China. The challenge for the Philippines is to avoid going down to their level in our response to the situation. So far, Philippines response has been confused and confusing. We should reassess existing rules and restrictions in dealing with China and Taiwan in the light of their current actions and words against the Philippines. These rules, mainly self-imposed, and are no longer use in protecting our national interests. This will need agile and aggressive diplomacy to pursue a clear, coherent and realistic foreign policy.