On settling the Philippines/China maritime issue: The road not taken

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Clemencio F. Montesa

Clemencio F. Montesa

SIX readers positively responded to my question in a previous piece as to why we rejected China’s invitation to bilateral talks on the WPS/SCS issue and instead decided to bring the matter to an UNCLOS arbitral process. Since their names do not belong to the known circle of learned commentators in government, think tanks and the academe, it can be presumed that they are ordinary citizens: the ones that represent the majority of the Filipino people.

Evidently, there is reason to seriously examine and consider China’s offer. It is the other road towards a peaceful settlement of the maritime problem.

It will not be easy. We must clearly and strongly state our stand. President Aquino’s declaration that “what is ours is ours” is the correct and important first step. Unfortunately the President missed, and the government officials concerned never followed up, to individually identify those rocks, reefs and islands. Panatag, Recto, Ayungin and the KIG among others, should have been specifically named as belonging to the Philippines.

The “ours” position if consistently and firmly stated would have placed us in a position of strength when the actual negotiations take place. Using the term “claim or claimant” weakens the power and authority of our stand. One should not claim what already is his. Any country that will claim as theirs what are ours deserve to be called bullies, grabbers or squatters.


Direct talks with China will have distinct advantages but bilaterals do not have to be one on one affairs. Proven effective is the appointment of a facilitator or mediator the role of which can be defined in the terms and conditions to be agreed upon by the principals. For this crucial role, the UN or EU or a country like India, Brazil or Norway which has tested experience on the matter might be willing to help.

Friendly bilateral talks between the Philippines and China offer many other opportunities. Already they agree on pacific settlement of disputes, freedom of navigation, safety at sea and joint ventures. The Chinese national oil company is reported to be partnering with a Philippine firm in the exploration and development of mineral deposits in the Recto Bank.

Of course bilaterals like any other negotiations can collapse and therefore fail to produce a settlement. But in this mode of resolving disputes the possibility of finding reasonable compromise agreements is more easily achievable.

The call for joint activities has expanded to talks about agreements on fisheries and disaster assistance. Benefits from this favorable atmosphere can be maximized if the sensitive issue about national sovereignty is set aside. Since the idea of a supranational authority succeerded in western Europe, a version of it that will meet Asia’s or Philippine/China’s peculiar situation could be possible. Such a regime can directly serve not only the economic but also the vital political and security interests of the two countries.

For sure going to the UNCLOS arbitral process is not a wrong move. But one wonders whether we picked the right time to file the application and whether prior consultations with the other concerned Asean countries were undertaken. Would it not have been wiser if we had first agreed to friendly bilaterals with China with the idea in mind that if the talks fail, we would invite them to an arbitral process? China proposed bilateral negotiations. She must be serious about wanting to forge a fair and acceptable settlement. And if the official talks falter, there is the possibility of compromise agreement, something that may not be expected in arbitral proceedings. In bilaterals, diplomats negotiate and leave room for compromise, in arbitration, lawyers argue and argue to win.

According to reports we ignored China’s invitation to direct talks because our government views it as a divide and rule tactic, designed to destroy the supposed united stand agreed upon by the Asean states on the matter. When we decided to take the arbitraton route did we first secure the opinion and support of our Asean friends? After all any decision that will come out of it, especially on the 9-dash line, [we seem so confident about winning]will definitely benefit them also. So far no public statement of full support has been heard from any of them. What they have done was to tactfully safeguard their friendly ties with China leaving the Philippines as the only Asean country that is the object of Chinese ire and hostility.

Records show that arbitral proceedings in the UNCLOS have produced favorable results. Indeed the cases between Barbados and Trinidad/Tobago in 2006 and the other between Guyana and Suriname in 2007 were successfully resolved. These neighbors willingly yielded to the jurisdiction of the UNCLOS Tribunal and mutually agreed to honor and accept whatever decision the arbitrators would reach.

Our case with China cannot be compared.

The diplomatic road not taken by the Philippines towards a peaceful settlement of our maritime issue with China deserves a second and harder look.

Amb. Montesa is a member of the Board of Governors of the Philippine Ambassadors’ Foundation Inc. (PAFI) but the views in this piece are entirely his. He was envoy to the European Union, Belgium, Luxembourg and Mexico and is now an active member of the Rotary Club of Alabang.

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11 Comments

  1. China affirming “sovereignty over all archipelagos and islands listed in Article 2 of the Law of People’s Republic of China” is disturbing and that is why bilateral negotiation may not be the best idea after all.

    China’s stake on the disputed islands roiled Filipinos as well as nations sympathetic to the county’s cause. It is a complicated diplomatic battle and maybe, just maybe our top notch diplomats can make a whole world of difference in an equally complicated conflict resolution. I think Ambassador Montesa can argue the country’s case convincingly in any International organization. Kudos to a wonderful, substantive, educational and enlightening piece!! Looking forward to reading more of your articles. It feels like graduate school again.:)

  2. Rosauro Feliciano on

    We are not an isolated country. In fact we are not only a member of the Association known as ASEAN but a founding member. However, outstanding member of the association as we are does not mean that we have the freedom to do what we want without consulting our friends in the association. Putting it mildly in an ordinary circumstance when we face a problem, should we panic when we are faced with difficulties involving problems definitively our own notwithstanding? Why, was it too difficult to grab a phone (ordinarily speaking) to tell heads of member states about our plan in elevating our cause to the United Nation? Considering the stature of all the men and women representing us in the ASEAN union, blunder cannot be made because at our side no one can make decision independently without consulting one another and eventually with our friends in the ASEAN. Bilateral consultation was (and still is) not that difficult to understand. In fact it was initiated and “approved” during the previous administration. I remember Senator Arroyo commented that the “agreement reached between the Philippines and China was comparable to condominium owners. It is construed that that agreement was not honored by the succeeding administration because understandably it was not approved by both the upper and the lower chambers of congress. We have elevated our cause to United Nation, at this difficult moment where we are not sure that the USA will come to fight alongside with us, do we have the gut to cancel our request for arbitration and diplomatically sit down with China for bilateral talk? We must forget that we have such affinity of friendship with the USA because we have consistently observed that the Americans are not keen of solving this territorial dispute we have with China favorable at our side. Believe me the Americans are not the Americans of the 1940s neither the Filipinos of the 1940s as all of them already died.

  3. Abu Khaleb Ahaaz on

    The Chinese government has already reached the point of no return, just like an airplane taking off, stopping is impossible. It can no longer be just stop in flexing its muscle in taking and grabbing territories without serious consequences in both parties. Their government have both might & global influence now and they are unstoppable unless all their neighboring countries will align themselves( to bond a new Southeast Allied Force ) to protect and prepare for an eventual conflict and will police the region or even war, if these rogue state malign any of its members. The presence of this kind of “Force” would somehow thwart any mischievous behavior of any state and would make them think twice if they are willing to sacrifice and destroy what they had achieved or “Live in Peace with its neighbors”.

    • Abu Khaleb Ahaaz on

      for now the Philippines government should take urgent deliberate steps in bolstering territorial securities to prevent further enemy advances and territorial incursions, act now or be sorry.

  4. No point of talking to China in the first placed he did not recognized, or even respected our territory, so how can we even talked when your gun is already aim at your friend. China is abusive because is economic wealthy that as if he can buy all other country, by Aid or alms. Wrong China choose a wrong partner Philippines is allergic to China, because China are used to be a Pirates like Li Ma Hong. It will never changed.

  5. Michael Cuanzon on

    China’s bullying tactics do not constitute an honest desire to address bilateral agreements. The UNCLOS therefore is the next possible judge for this problem.

  6. China

    [Original: Chinese]

    Upon ratification (7 June 1996)1/:

    In accordance with the decision of the Standing Committee of the Eighth National People’s Congress of the People’s Republic of China at its nineteenth session, the President of the People’s Republic of China has hereby ratified the United Nations Convention on the Law of the Sea of 10 December 1982 and at the same time made the following statement:

    1. In accordance with the provisions of the United Nations Convention on the Law of the Sea, the People’s Republic of China shall enjoy sovereign rights and jurisdiction over an exclusive economic zone of 200 nautical miles and the continental shelf.

    2. The People’s Republic of China will effect, through consultations, the delimitation of the boundary of the maritime jurisdiction with the States with coasts opposite or adjacent to China respectively on the basis of international law and in accordance with the principle of equitability.

    3. The People’s Republic of China reaffirms its sovereignty over all its archipelagos and islands as listed in article 2 of the Law of the People’s Republic of China on the territorial sea and the contiguous zone, which was promulgated on 25 February 1992.

    4. The People’s Republic of China reaffirms that the provisions of the United Nations Convention on the Law of the Sea concerning innocent passage through the territorial sea shall not prejudice the right of a coastal State to request, in accordance with its laws and regulations, a foreign State to obtain advance approval from or give prior notification to the coastal State for the passage of its warships through the territorial sea of the coastal State.

    Declaration made after ratification (25 August 2006)

    Declaration under article 298:

    The Government of the People’s Republic of China does not accept any of the procedures provided for in Section 2 of Part XV of the Convention with respect to all the categories of disputes referred to in paragraph 1 (a) (b) and (c) of Article 298 of the Convention.

  7. The present crop of professionals in the foreign service do not have to have the same degree of probity and circumspectness that once characterized the Corps. Now that the present man at the helm has been identified with a group of companies that uphold CN interests in the region and the spokesman himself consistently bungling on his partially studied position on the latest issue of “fishing rules” announced from Sansha, Hainan, the need for seasoned and reasoned judgment cannot be over-emphasized. Even our diplomatic front has no face and no leadership as the very man, who ought to be the face and leader is , sad to say, impeccably unqualified and reduced to his own personal agenda at the highest position of political power. Perhaps, the PAFI could come ought with position papers with ideas you just ventilated.

  8. The other question that needs asking here is why is China reluctant to submit to international arbitration? The Philippines agreeing to to a bilateral negotiation means China has legit claims to area within the Philippine economic zones based on UNCLOS. In other words, by not considering bilateral negotiation the Philippines is saying that China has no legal claims to the disputed areas.

    It is quite clear that China is violating the the territorial integrity norms that are in place. We saw that against Vietnam, Japan, India and Nepal.